B.C. – period in which to appeal partial award runs from date of that award, not the later, final award

In Milner v. Clean Harbors Industrial Services Canada, Inc., 2020 BCSC 68, Mr. Justice Anthony Saunders dismissed argument by a late-filing petitioner that the title “Partial Award” (i) created “inherent uncertainty” and (ii) justified calculating time to seek leave to appeal from the later, final award.  Saunders J. held that the title “Partial Award” was not ambiguous and petitioner demonstrated no confusion as to his rights determined under that award.  Saunders J. held that, of all the factors applicable to exercising his discretion to extend that time, the interests of justice subsumed the others and did not favour petitioner.

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Ontario – decision maker’s position in judicial hierarchy justifies no reason for different review standard

In ATS Automation Tooling Systems Inc. v. Chubb Insurance Co., 2019 ONSC 5073, Madam Justice Sandra Nishikawa upheld a Master’s decision to dismiss plaintiffs’ motion to stay their own litigation.  The facts did not confirm that the arbitration was active and, as of the date of the appeal hearing, arbitration had not been formalized and the limitation period in which to do so had expired.  Nishikawa J. agreed with earlier case law there was “no compelling reason for adopting differing standards of review on appeal depending solely on the place in the judicial hierarchy occupied by the decision maker whose decision is under appeal”.

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B.C. – evidence of fraud need not be new to be admissible on post-decision challenge

The fact that evidence of fraud existed at the time of hearing might justify its rejection as ‘new’ evidence on a post-decision challenge but cannot justify rejecting it as evidence of fraud. In McCallum v. Mooney, 2019 BCSC 1938, Madam Justice Nitya Iyer granted a defendant’s application to set aside a default decision, even after having unsuccessfully challenged it by internal appeal, due to claimant allegedly withholding a key document during the initial hearing on the merits.

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Federal – final offer arbitration characterized as “an intentionally high risk form of arbitration”

Madam Justice Ann Marie McDonald in Canadian National Railway Company v. Gibraltar Mines Ltd, 2019 FC 1650 demonstrated that the “unique nature” of final offer arbitration distinguished it from “ordinary commercial arbitration” and informed expectations of procedural fairness.  The dissatisfied party objected to the administering institution’s decision to dismiss a preliminary application but provide reasons only after the arbitration concluded.  McDonald J. held that the decision was not part of the FOA process under challenge and did not affect the fairness of the process. McDonald J. also issued a permanent order declaring certain documents, created for the arbitration, to remain confidential.

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Québec – award treated as “judgment” subject to ten (10) year prescription (limitation) period

In Société générale de Banque au Liban SAL v. Itani, 2019 QCCS 5266, Madam Justice Dominique Poulin held that the longer, ten (10) year prescription (limitation) period applied to recognize and enforce an arbitration award made outside of Québec.  Notwithstanding comments to the contrary in Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19 (CanLII), [2010] 1 SCR 649 based on two (2) of its leading cases originating from Québec, Poulin J. reasoned that, to be coherent, the provisions in the Civil Code of Québec, CQLR c CCQ-1991 should be read to treat an arbitration award as a “judgment”, thereby qualifying it for longer prescription (limitation) period.

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