Set aside/Annulment Archives - Page 7 of 8

March 15, 2022May 4, 2022

Saskatchewan – Judicial review available only when arbitration agreement provides – #594

In Ministry of Highways for the Province of Saskatchewan v. West-Can Seal Coating Inc. et al, 2022 SKQB 43, Justice Currie heard, and rejected, all grounds pursued by the applicant, Ministry of Highways (the “Ministry”), to set aside a decision arising from an arbitration conducted pursuant to the New West Partnership Trade Agreement (“NWPTA”), a trade agreement among the four western Canadian provinces. Justice Currie confirmed that, unless contracted for by the parties, there is no role for judicial review of an arbitration award. The options are appeal (if applicable) and set aside. Set aside applications are also limited to issues of procedural fairness, and not whether the decision is correct on its merits.

February 16, 2022May 4, 2022

Ontario – Court overturns decision, “deciding the matter” of jurisdiction de novo – #586

In Electek Power Services Inc. v. Greenfield Energy Centre Limited Partnership, 2022 ONSC 894, Justice Perell set aside a preliminary jurisdiction decision rendered by a three-person arbitral tribunal. The tribunal found that the parties had agreed to arbitrate their dispute. The matter came before the court as an application under section 17(8) of the Arbitration Act, 1991, S.O. 1991, c. 17, which provides that the court may “decide the matter” of a jurisdictional objection where the arbitral tribunal rules on the objection as a preliminary question. Following the approach set out by the Divisional Court in The Russian Federation v. Luxtona Limited, 2021 ONSC 4604 (Lisa’s 2021 Top Pick: Ontario – Russian Federation v. Luxtona Limited (Part 1) – #564), Justice Perell held that he was required to “decide the matter” of whether the parties agreed to arbitrate on a de novo basis. He explicitly rejected the submission that administrative law or appellate standards of review have any relevance in an application to the court to “decide the matter” of whether parties agreed to arbitrate their dispute.

February 11, 2022May 4, 2022

Alberta –No appeal of decision refusing leave to appeal arbitration award, despite s. 48 of Alberta Arbitration Act – #583

In 719491 Alberta Inc v Canada Life Assurance Company, 2021 ABCA 419, a three-member panel of the Court of Appeal of Alberta denied the applicant’s requests (i) for permission to appeal the chambers judge’s order refusing leave to appeal the arbitration award (the “Leave to Appeal Request”)and (ii) for permission to appeal the chambers judge’s dismissal of its application to set aside the award (the “Set Aside Request”). As a preliminary matter on the Leave to Appeal Request, the applicant asked the Court to reconsider its previous decision in Sherwin-Williams Company v. Walls Alive (Edmonton) Ltd., 2003 ABCA 191(“Sherwin-Williams”), which held that leave to appeal decisions are not appealable to the Court of Appeal under s. 48 of Alberta’s Arbitration Act, RSA 2000, c A-43 (the “Arbitration Act”). Section 48 provides, in relevant part, that an appeal from the decision of the Court of Queen’s Bench on an appeal of an award (s. 44) may be made to the Court of Appeal with leave. However, based on the case law on the test for leave to reconsider a previous decision, which includes whether the decision has some “obvious, demonstrable flaw,” the Court denied leave and ruled that it did not have jurisdiction to hear the Leave to Appeal Request. The Court similarly rejected the applicant’s Set Aside Request based on the finding that the chambers judge did not err in holding that the arbitrator did not exceed his jurisdiction.

February 2, 2022May 4, 2022

Ontario – It’s not cricket: Ontario court emphasizes arbitral awards must include reasons – #580

In Alberta Cricket Association v. Alberta Cricket Council, 2021 ONSC 8451, Justice Perell took the rare step of setting aside an arbitral award for failing to state the reasons on which it was based. Justice Perell found that the arbitrator of a sports-related dispute had failed to deliver adequate reasons and so he set aside the award and directed a new arbitration to be conducted before a different arbitrator.

January 19, 2022May 4, 2022

BC – Arbitrator’s decision set aside for lack of procedural fairness – #575

In Cyrenne v YWCA Metro Vancouver, 2021 BCSC 2406, Justice Baird of the British Columbia Supreme Court set aside a statutory arbitrator’s decision to grant an Order of Possession in a residential tenancies dispute under the Residential Tenancy Act, SBC 2002, c 78 (the “RTA”). He found that the hearing lacked procedural fairness because the arbitrator failed: (i) to judicially consider an adjournment request (dismissing it out of hand); and (ii) to give the tenant a reasonable opportunity to fully present her case (e.g. cutting her off in the middle of her submissions after a “time limit” had expired). Although the Arbitration Act, SBC 2020, c 2 does not apply to RTA disputes, it is illustrative of what procedural fairness dictates in relation to fair hearings.

January 12, 2022May 4, 2022

Ontario – Fresh evidence test the same on set aside applications on fairness grounds and judicial review applications – #572

In Vento Motorcycles Inc. v United Mexican States, 2021 ONSC 7913, Justice Vermette set out the test for when fresh evidence may be adduced to support a set aside application on lack of fairness or natural justice grounds. The test is the same as that which applies on a judicial review; the record is restricted to what was before the decision-maker, except where there are natural justice or fairness issues raised that cannot be proven by reference to the existing record and that could not have been raised before the decision-maker.

January 7, 2022May 4, 2022

Myriam’s 2021 Top Pick: B.C. – lululemon athletica inc. v. Industrial Color Productions Inc. – #571

Famed Canadian athletic wear company lululemon athletica generated a noteworthy court decision this year, which has nothing to do with the controversy surrounding the sartorial choices it has made in designing Team Canada’s (very red!) uniform for the Beijing Olympics. Rather, the case adds to the significant number of decisions rendered of late in which the courts have grappled with their role – and the tests they must apply – when an application to set aside an international arbitral award comes before them under the UNCITRAL Model Law on International Commercial Arbitration (for a deep dive on this topic, see Lisa’s top pick, Russian Federation v. Luxtona Limited).

December 9, 2021May 4, 2022

Québec – partial award may determine scope of arbitration agreement for final award – #563

In Maïo v Lambert, 2021 QCCS 3884, Justice Castonguay denied an application to annul in part and modify a final award. He found that the arbitrator did not exceed the scope of his mandate, including in how he ruled on matters that had been circumscribed in a prior partial award, and that the applicant was essentially seeking an improper review of the merits of the dispute.

November 10, 2021May 4, 2022

B.C. – Award challenged for legal error, denial of natural justice after baseball arbitration – #552

In 1150 Alberni Limited Partnership v Northwest Community Enterprises Ltd., 2021 BCSC 2053, Justice Groves heard a petition to set aside an arbitral award or, in the alternative, for leave to appeal the award, as well as a cross-petition to enforce the award. The award arose out of a final offer selection arbitration, which required the arbitrator to accept one party’s submission in its entirety and provide reasons. Justice Groves dismissed the set aside and leave to appeal petitions. The arbitrator had not erred in law or in denying the petitioner natural justice; the losing party was simply re-arguing its case. Justice Groves granted an order enforcing the award.

November 8, 2021May 4, 2022

B.C. – Leave to appeal granted; arbitrator found party’s actions estopped him from raising statutory time limit – #550

Meszaros v 464235B.C. Ltd., 2021 BCSC 2021, concerned a petition to have the Court set aside or, alternatively, to grant leave to appeal, two awards related to costs where a party failed to apply within the time limit provided under the previous B.C. Arbitration Act: Arbitration Act, R.S.B.C. 1996, c. 55. The arbitrator had found that the 30-day time limit for seeking costs could be subject to an estoppel that prevented the petitioner from relying on it to challenge the ability of an arbitrator to make an award of costs outside the time limit. Justice D. MacDonald of the British Columbia Supreme Court denied the application to set aside the award but granted leave to appeal on the issue of whether an estoppel could arise on the facts of this case as found by the Arbitrator.