B.C. – failure to disclose existence of arbitration over only material asset alleged to breach securities legislation

In Arian Resources Corp. (Re), 2020 BCSECCOM 89, an alleged failure to disclose arbitration prompted B.C.’s Securities Commission to issue a notice advising that a hearing would be held at which the Executive Director would tender evidence, make submissions and apply for orders under the Securities Act, RSBC 1996, c 418 for failure to disclose material changes.  The notice does not purport to assert determinations of fault or sanction but does remind that, despite the role and availability of confidentiality in arbitration, arbitration parties may still be required to share sufficient, timely information on arbitrations involving them and involving material change.

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B.C. – precedents acknowledged for parties to constitute sitting judge as private tribunal without appeal

In Gourlay v. Crystal Mountain Resorts Ltd., 2020 BCCA 191, B.C.’s Court of Appeal acknowledged precedents in which litigants constituted a judge/panel of judges as arbitrator(s) but, on the facts, held that no such agreement existed in the action.  Such an agreement, if established, also entailed consequences, familiar to arbitration, such as an inability to appeal unsatisfactory orders.  The Court’s reasons omit the Court’s own consideration of whether consent to have a judge sit as arbitrator could validly be given or enforced.  Rather, it limited its reasons to acknowledging that it had been done in the past but that the agreement in the case did not support its application.

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B.C. – upcoming legislation overrides determination that summary assessment of costs is arbitral error

In Appleton & Associates v. Branch MacMaster LLP, 2020 BCCA 187, B.C.’s Court of Appeal held that a court’s discretion to refuse to set aside an award under section 30(1) of the Arbitration Act, RSBC 1996, c 55 upon a finding of arbitral error is “constrained by the parameters” in section 30(2).  The arbitral error consisted of making a summary assessment to determine costs.  However, going forward, section 50(2)(d) of B.C.’s new Arbitration Act (Bill 7 – 2020: Arbitration Act), in effect September 1, 2020, expressly authorizes an arbitrator to summarily determine the amount of costs.  In debating whether to set aside or remit the award, the Court observed that it is doubtful that a party can constrain the court’s discretion under section 30(1) to set aside the award or remit by limiting the requested relief to only one of the remedies.

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Québec – parties renounce referral to arbitration but court later confirms issues not public order, still arbitrable

In Gestion George Kyritsis Inc. v. Balabanian, 2020 QCCS 1806, Madam Justice Claude Dallaire asserted public order limits to the arbitrability of certain disputes but, on the facts, held that the dispute did not pass those limits.  Dallaire J. held that where a declaration of improbation (annulment) is required to annul an authentic act received before a notary and registered in the land registry office, only a Superior Court could issue that declaration.  Challenge to the validity of a notarial act alleging a notary’s non-compliance with the mission given by legislation is a matter involving public order.  In the circumstances, because the nullity of the act could issue on grounds which did not require improbation, an arbitrator could have decided the matter.

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Ontario – arbitrator determines complainant’s status as member of respondent and eligible to arbitrate dispute

In Cricket Canada v. Alberta Cricket Council, 2020 ONSC 3776, Mr. Justice Markus Koehnen upheld an arbitrator’s determination that she had jurisdiction over both the complainant and the dispute, consistent with not only the applicable dispute resolution rules but also the administering institution’s enabling legislation.  Koehnen J. held that the arbitrator had not taken it upon herself the power to determine membership in a private corporation, had not undertaken any corporate reorganization or attempted any unjustified removal of a right to self-determine membership.  Rather, the arbitrator was correct in her determination that claimant’s status and the nature of the dispute fell within her jurisdiction and that of the administering institution which adopted the dispute resolution rules.

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Ontario – each party argues to have the other party’s candidate appointed arbitrator instead of their own

Still seized of the appointment process following his earlier decision to refer the parties to arbitration, Mr. Justice Jonathan Dawe in King Valley Estates Inc. v. Wong et al., 2020 ONSC 3950 accepted to grant Defendants’ application to appoint a candidate initially proposed, but now resisted, by Plaintiff.  Despite months of opportunity and diligent efforts by Defendants, the parties returned before Dawe J. each proposing that the other’s candidate be named. Both candidates were “eminently qualified”, acceptable to both parties and not under “any disqualifying conflict”.  Due to advantages perceived by Plaintiff’s candidate’s lower rate and cap on fees, Dawe J. expressed readiness to appoint that candidate at Defendants’ request subject to (i) re-confirmation of his interest and (ii) a schedule acceptable to Defendants.

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Supreme Court – courts should not refer jurisdiction challenge to arbitrator if real prospect that challenge might never be resolved

In Uber Technologies Inc. v. Heller, 2020 SCC 16, the Supreme Court of Canada introduced a third exception to its general rule that jurisdiction challenges should be referred first to the arbitrator. The exception contemplates scenarios in which validity of the arbitration agreement might not be determined if arbitration is too costly or inaccessible due to costs, distance or even a choice of law clause circumventing mandatory local policy.  Staying an action in favour of arbitration would deny relief for claims made under the agreement and insulate disputes from resolution.  The Court also asserted that unconscionability involves both inequality and improvidence but does not require intention.  The Court further confirmed that employment disputes are not “commercial” for the purpose of the International Commercial Arbitration Act, RSO 1990, c I.9.

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B.C. – alleged breach of unclear settlement agreement requires lengthy trial to discern rights/obligations

Following 18 days of proof and hearing, Mr. Justice J. Christopher Grauer in Great Corner Stone Ltd. v. Vancouver Cabinets Inc., 2020 BCSC 107 puzzled through a “bewildering” set of initial contracts and a “poorly drafted” settlement agreement purporting to “reset” the relationship. Grauer J. struggled to identify what the mediate resolved, concluding that the settlement agreement “does not offer much guidance”.  Overall, Grauer J. held that discerning what rights and obligations were placed on the parties “was not a problem of ambiguity, but rather one of inexpert drafting and lack of clarity”.

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Saskatchewan – availability and final nature of partial discontinuance of claims in arbitration considered

In Poffenroth Agri Ltd. v Brown, 2020 SKCA 68, Saskatchewan’s Court of Appeal held that a notice of discontinuance filed in a civil action was interlocutory, not final, in nature and required leave to appeal.  Observing the limited number of precedents, the Court referred to but distinguished the reasoning and result in Ontario First Nations (2008) Limited Partnership v. Aboriginal Affairs (Ontario), 2013 ONSC 7141 which considered whether an arbitral panel’s decision to accept a claimant’s partial withdrawal of its notice of arbitration was final or not and, if subject to appeal, permitted under Ontario’s Arbitration Act, 1991, SO 1991, c 17.

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Ontario – Appeal Court questions why arbitrate under a statute if statute does not apply to both parties

In Travelers Insurance Company of Canada v. CAA Insurance Company, 2020 ONCA 382, Ontario’s Court of Appeal set aside an award which issued following a statutory arbitration because the Ontario statute did not apply to the defendant.  The Court questioned how did Ontario statutory accident benefits for a Nunavut accident come to be arbitrated under Ontario’s Insurance Act, RSO 1990, c I.8 if that legislation’s priority rules only apply if both insurers are subject to those rules.  The Court identified as a “serious” error the arbitrator’s determination that the Insurance Act applied to the defendant insurer.  Despite that error, the Court is silent on (i) how/when parties can consent by contract to submit to statutory arbitration under a statute which does not apply to one of them and (ii) why apply the standard of review applicable to statutory arbitrations, recently restated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, to an appeal from a consensual arbitration.

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