Alberta – No set aside for document disclosure complaints – #633

In ENMAX Energy Corporation v. TransAlta Generation Partnership et al, 2022 ABCA 206, the Alberta Court of Appeal (Paperny, Rowbotham, and Strekaf, JJA) upheld the chambers justice’s decision to refuse to set aside an arbitral award (the “Award”) under section 45(1)(f) of the Alberta Arbitration Act, RSA 2000, c A-43 (the “Act“). It agreed that the (“Tribunal”) document disclosure rulings of the arbitral tribunal (“Tribunal”) in relation to a narrow sub-issue did not prevent the Appellants from making their case, nor did it result in manifest unfairness. Among other things, the Court of Appeal found that the Tribunal did not foreclose the possibility of further document production, but that it was the Appellants who opted not to apply for the records whose absence they now complained about. The Court also held that, when viewed in context, the Tribunal relied on other evidence to reach its conclusion and the absence of the records sought by the Appellants did not preclude them from presenting their case.

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Alberta – Appeal process under s. 44(2) of the Arbitration Act clarified – #623

In Esfahani v. Samimi, 2022 ABCA 178, the Court of Appeal for Alberta set out the procedure to be undertaken by the Court of Queen’s Bench when an arbitral award is appealed under s. 44(2) of the Arbitration Act, RSA 2000, c A-43. It states that if the arbitration agreement does not provide that the parties may appeal an award to the court on a question of law, a party may, with the permission of the court, appeal an award to the court on a question of law. The Court of Appeal held that the procedure is as follows: (a) an appeal does not exist unless permission to appeal is granted; (b) if parties do not make the required election in their arbitration agreement, permission to appeal is required and will be granted on questions of law only, subject to s 44(3) of the Arbitration Act (which provides that a party may not appeal an award to the court on a question of law that the parties expressly referred to the arbitral tribunal for decision); and (c) an application for permission to appeal must be heard and decided first, and separately, not contemporaneously with the appeal of the arbitral award.

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Ontario – Set- aside application failed; dispute covered by arbitration agreement, no objection to jurisdiction – #616

In Baffinland v Tower-EBC, 2022 ONSC 1900, Justice Pattillo dismissed both: (1) an application to set aside an award from a majority of an arbitral tribunal (the “Majority Award”) under section 46 of the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”); and (2) an application for an order granting leave to appeal the Majority Award and Costs Award under section 45(1) of the Act. Justice Pattillo found there were no grounds upon which to set aside the Majority Award; there was no lack of jurisdiction or failure to be treated equally and fairly. Nor could leave to appeal be granted under section 45(1) of the Act because the arbitration agreement precluded an appeal.

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Ontario – Determining appeal rights in arbitration agreement in effect since 1960 Arbitration Act – #614

In D Lands Inc. v KS Victoria and King, 2022 ONSC 1029, Justice Dietrich granted the Landlord leave to appeal the tribunal Majority’s award in a rent reset arbitration, but ultimately dismissed the appeal and the Landlord’s application to set aside the Majority’s award on jurisdictional grounds. Her reasons summarize the legal principles to be applied to determine whether the parties agreed to a right of appeal and, in particular: (1) the effect of an arbitration agreement when it spans a period of time in which more than one piece of arbitration legislation governed that provided for different rights of appeal; and (2) as a matter of contract interpretation, the language necessary for the parties to contract out of rights of appeal. Here, the parties’ agreement was entered into in 1968 and the arbitration legislation in Ontario changed since then from an “opt in” regime to an “opt out” regime. However, the parties provided in their arbitration clause that any arbitration was to be conducted under the ICDR Rules, which were silent on appeal rights. Therefore, it was necessary for Justice Dietrich to interpret the contract as a whole to determine the parties’ intentions. The words in the arbitration agreement that the tribunal’s award “is conclusive on the parties” and that judgment may be entered in any court having jurisdiction were not sufficiently clear to express an intention to contract out of a right to appeal.

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B.C. – Appeal of award granted; arbitrator re-wrote parties’ contract – #611

In Grewal v Mann, 2022 BCSC 555, Justice Iyer allowed the plaintiff’s appeal of an arbitral award dated May 15, 2020, made pursuant to s. 31 of the former British Columbia Arbitration Act, RSBC 1996, c. 55. That provision permitted an appeal from an arbitral award to be brought before the Supreme Court if leave to appeal was granted. Justice Iyer held that the “reasonableness” standard of review applies to appeals of arbitral awards, while acknowledging that the appropriate standard of review is still undecided at the appellate level.  She allowed the appeal and amended the award to provide that disputed funds held in trust were to be released to the plaintiff. She found that the arbitrator had not interpreted the parties Agreement, but rather had written an entirely new one.

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Ontario – Continuing confusion over nature of court review of arbitration – #606

In PCL Constructors Canada Inc. v Johnson Controls, 2022 ONSC 1642, Justice Conway heard and dismissed four applications, two by PCL and two by Johnson, relating to two arbitrations arising out of disputes over the construction by PCL of the Humber River Regional Hospital (“the Humber Arbitration) and the Milton District Hospital (“the Milton Arbitration”). PCL  brought applications to the court, pursuant to s. 17(8) of Ontario Arbitration Act, 1991, S.O. 1991, c. 17 (“the Act”), to “decide the matter” of the tribunal’s ruling on jurisdiction as a preliminary matter.  Justice Conway applied the “correctness” standard of review; the arbitrators both ruled correctly that they had jurisdiction and that the prerequisites to arbitration in the arbitration clause did not constitute conditions precedent to arbitration.  Johnson brought applications under s. 8(2) of the Act, which provides that the court may determine any question of law that arises during an arbitration on an application if the parties or the tribunal consent. The issue concerned a party’s right under the contract to apply to the court for a reconsideration of the arbitrator’s determination.  That right had not crystallized because the arbitration continued and no determination had been made.

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