Standard of review Archives - Page 3 of 4

March 1, 2022May 4, 2022

Alberta – Previous arbitral award did not create res judicata for regulator – #589

In TransAlta Corporation v Alberta (Utilities Commission), 2022 ABCA 37, TransAlta Corporation (“TransAlta”) argued on appeal that the Alberta Utilities Commission (“AUC”) erred in law when it refused TransAlta’s application to decide, as a preliminary matter, that certain issues were rendered res judicata by a previous arbitral award arising out of a dispute between TransAlta and a legislated entity called the “Balancing Pool”. The majority of the Court of Appeal dismissed the appeal as: (1) the AUC decision was an interlocutory ruling in an unfinished proceeding and the AUC may ultimately agree with the arbitral award; and (2) the AUC did not err when it refused to apply res judicata as a preliminary matter as it was making a decision in a different statutory context than the arbitral tribunal.

February 28, 2022May 4, 2022

B.C. – Arbitrator’s Analysis Must not let Factual Matrix Overwhelm Text of Contract – #588

In Grewal v. Mann, 2022 BCCA 30, the British Columbia Court of Appeal dismissed an appeal of an order granting leave to appeal an arbitral award. In doing so, the Court of Appeal confirmed the bounds of contractual interpretation, including the principle that the analysis must remain grounded in the text of the contract.

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.

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).

January 5, 2022May 4, 2022

Laura’s 2021 Top Pick: B.C. – Spirit Bay Developments Limited Partnership v. Scala Developments Consultants Ltd. – #569

Spirit Bay Developments Limited Partnership v Scala Developments Consultants Ltd., 2021 BCSC 1415, is part of a series of cases that leave an important question undetermined at the end of 2021: what is Vavilov’s impact on commercial arbitration appeals? Although on its own Spirit Bay is not the most significant case of the year, the impact of the Vavilov on commercial arbitration appeals will be studied with interest by arbitration practitioners in 2022 and is an important aspect of arbitration jurisprudence in 2021.

January 4, 2022May 4, 2022

Lisa’s 2021 Top Pick: Ontario – Russian Federation v Luxtona Limited (Part 2) – #568

In Part 1 (case update #564), I reviewed the decision of Russian Federation v Luxtona Limited, 2018 ONSC 2419, 2019 ONSC 7558, and 2021 ONSC 4604 on the standard of review to be applied on an application to the court pursuant to Model Law Article 16(3) “to decide the matter” where the tribunal has decided jurisdiction “as a preliminary question” and what evidence is admissible on such an application. In this, Part 2, I discuss the interplay between Articles 16(3) and Art 34(2)(a)(iii). So far as I have been able to determine, this issue does not seem to have been categorically resolved anywhere under the Model Law.

December 20, 2021May 4, 2022

James’s 2021 Top Pick: B.C. – Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District – #565

My top pick for 2021 is Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 [Wastech]. For most, Wastech’s primary importance relates to the common law duty of good faith in the exercise of contractual discretion. But for arbitration aficionados, another key aspect is what the Supreme Court of Canada’s concurring Justices said, and what the majority Justices declined to say, about the standard of review applicable to appeals from arbitral awards.

December 16, 2021May 4, 2022

Lisa’s 2021 Top Pick: Ontario – Russian Federation v Luxtona Limited (Part 1) – #564

A review of the 2021 case law shows that the appropriate standard of review of an arbitral award remains uncertain. Russian Federation v Luxtona Limited is interesting because it did not involve an appeal of an arbitral award or a set-aside application, in respect of which there are many court decisions. It considered the standard of review by a court where a tribunal has ruled “as a preliminary question” that it has jurisdiction pursuant to Article 16(3) of the Model Law. It provides that following such a determination by the tribunal, any party may apply to the court to “decide the matter”, which decision shall not be subject to appeal. Comparable provisions also appear in domestic legislation. The question is the role of the reviewing court asked to “decide the matter”. Confusion exists as to whether such a hearing is a “review” or hearing de novo and whether that determination has any bearing upon the standard of review of the arbitral tribunal’s preliminary jurisdiction determination.