Alberta – arbitrator’s findings in award have no probative value or binding effect if award set aside

In Flock Estate v. Flock, 2019 ABCA 194, Alberta’s Court of Appeal overturned a chambers judge’s order which had allowed an arbitral party to reuse material from an arbitration in which the final award had been set aside.  Such an award was “ineffectual”, reflected only the “personal opinions” of the arbitrator and had no probative value.  Once set aside, the award did not serve to “crystallize” the interests of the parties or serve to create any issue estoppel.

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B.C. – incorporation by reference of arbitration agreement a question intent not category of contract

In MRC Total Build Ltd. v. F&M Installations Ltd., 2019 BCSC 765, Madam Justice Shelley C. Fitzpatrick determined that it was arguable that parties to one contract intended to incorporate by reference the arbitration provisions set out in another contract.  Relying on the actual wording of the contract between the parties, Fitzpatrick J. identified the court’s role as discerning the intention of the parties. She resisted applying a technical rule to interpreting contracts or categorizing contracts into one type or another as a proxy for intention.  Once the court finds that it is arguable that such an intention exists, and absent the arbitration agreement being incapable of being performed, the court must refer the matter to the arbitrator for determination.

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B.C. – consent of parties to re-open formal order yields to functus officio

In Leonard v. The Manufacturers Life Insurance Company, 2019 BCSC 598, Mr. Justice J. Christopher Grauer dismissed an application, made on consent of the parties, to certify a class proceeding under B.C.’s Class Proceedings Act, RSBC 1996, c 50 in which the court had already dismissed a prior, unsuccessful application for certification.  Despite arising in a class action context, Grauer J.’s reasons offer insights regarding how applications on consent to re-open final awards could apply in arbitrations undertaken pursuant to statute and for which appeals are limited to questions of law.  A key authority cited by Grauer J. stated that an order cannot be revisited even with consent of the parties because “consent cannot clothe the arbitrator with jurisdiction he [or she] does not have”.

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Alberta – records subject to solicitor-client privilege and involving arbitration proceedings subjected to court review

In Alberta (Municipal Affairs) v. Alberta (Information and Privacy Commissioner), 2019 ABQB 274, Mr. Justice Steven N. Mandziuk examined records relating to arbitration proceedings in regard to which one party claimed solicitor-client privilege. Mandziuk J. demonstrated the process that will apply to such records if and when brought before the court.  His reasons set out the appropriate test for determining whether privilege exists, the practical manner in which the court will receive those records and how the courts must consider them on a document-by-document basis.

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Ontario – overlapping cost applications result in denial of most of costs claimed

In Iqbal v. Mansoor, 2019 ONCA 110, Ontario’s Court of Appeal declined to hear an appeal of a costs order, holding that appellant had refused to seek the required leave to appeal such an order.  Regarding the substance of appellant’s claim, the Court observed how the Superior Court had already dealt with costs in an earlier order.  The various reasons in the sequence of decisions identify opportunities for arbitral parties to either reserve or clarify the issue of costs incurred up to each phase of their dispute resolution.

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