Alberta – alleged limitations of arbitration unproven/insufficient to grant jurisdiction to regulator

In FortisAlberta Inc v. Alberta (Utilities Commission), 2020 ABCA 271, Mr. Justice Jack Watson refused leave to appeal from a regulator’s decision that it lacked jurisdiction over costs otherwise subject to arbitration. Watson J. held that a “harmonious reading” of legislation governing the regulatory environment created jurisdiction for both regulator and arbitration tribunals.  He resisted appellant’s alleged efforts to “confect” a “solemnly commercial sounding term” to bring the dispute within the regulator’s jurisdiction.  Watson J. also determined that any alleged limitations in the arbitration process were insufficient to empower the regulator to “effectively override” the parties’ contracts.  As appellate gatekeeper, Watson J. concluded that a full panel was unlikely to find the claim of inadequacy of arbitration anything more than just a claim supported only by appellant’s own say so.

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Québec – lacking jurisdiction over Plaintiff’s claim, court declines to address whether claim subject to arbitration

In Consultants en environnement Eutrotech Inc. v. Bacon, 2020 QCCQ 1727, Mr. Justice Daniel Lévesque dismissed a claim made Plaintiff for monies allegedly owing from an arbitration award which recorded Defendant’s consent to render an accounting.  Lévesque J. stated that jurisdiction was a matter of public order and, in dismissing the claim, declined also to rule on Defendant’s challenge that the claim was subject to arbitration.  The authorities referred to also note that parties cannot by consent give jurisdiction to a court because jurisdiction is a matter of public order.

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Ontario – states’ legal submissions can qualify as “subsequent practice” in investor-state arbitration

In The United Mexican States v. Burr, 2020 ONSC 2376, Madam Justice Bernadette Dietrich accepted that legal submissions by parties to the North America Free Trade Agreement Between the Government of Canada, the Government of Mexico and the Government of the United States, 17 December 1992, Can TS 1994 No 2 can qualify as “subsequent practice” under article 31(3) of the Vienna Convention on the Law of Treaties Can TS 1980 No 37 but that the facts fell short of meeting the standard in Mexico v. Cargill, Incorporated, 2011 ONCA 622 of a “clear, well-understood, agreed common position”.  Dietrich J. also distinguished between an objection to jurisdiction which relates to the authority of a tribunal to hear a dispute and an objection to admissibility which refers to the characteristics of the claim, determining that she had jurisdiction to review the former but not the latter.  She dismissed a challenge to an award on jurisdiction in which the tribunal found that investors had properly given notice of their intention to arbitrate by filing powers of attorneys authorizing legal counsel to initiate arbitration and to act on their behalf.  Dietrich J. held that non-compliance with the formal requirements of Articles 1119 did not vitiate the state’s consent to arbitrate under Article 1122(1).

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Manitoba – court uses provincial corporation legislation to order Canada/U.S. parties to arbitrate under domestic arbitration act

In Silpit Industries Co. Ltd. v. Rady et al., 2020 MBQB 96, Mr. Justice Theodor Bock dismissed an attempt to appeal an award on a question of law under The Arbitration Act, CCSM c A120.  The award resulted from a court-ordered arbitration which another Manitoba court, in prior litigation, imposed and subjected to the Arbitration Act. Despite the parties being located in different countries, the court did not subject the arbitration to The International Commercial Arbitration Act, CCSM c C151.  The earlier court required the parties to arbitrate the value of shares which the court ordered be sold under sections 207 and 234 of The Corporations Act, CCSM c C225 to remedy a break down in the relationship between the two (2) groups of shareholders each holding a 50% interest.

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Québec – parties can give court role to examine merits of settlement but not to examine merits of identical consent award

In Gestion S. Cantin Inc. v. Emblème Canneberge Inc., 2020 QCCS 2259, Mr. Justice Daniel Dumais distinguished the leeway available to arbitral parties to agree, subsequent to a settlement arrived at during arbitration, if/how to grant the court jurisdiction to examine the merits of the resolution of their dispute.  On a transaction (settlement agreement), arbitral parties can give the court jurisdiction to examine the merits.  On a consent award recording that same settlement, parties cannot give the courts jurisdiction to examine the merits.  The arbitral parties had negotiated a settlement agreement and obtained a consent award recording it but, disputing performance post-settlement, were allowed to dispute only the merits of the agreement but not the award, despite being identical in terms.

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Alberta – arbitration act informs court rules allowing court to clarify its order allowing appeal of award

In Clark v. Unterschultz, 2020 ABQB 423, Madam Justice June M. Ross agreed to revisit her earlier decision in Clark v. Unterschultz, 2020 ABQB 338 which allowed an appeal in part, limited to the arbitrator having not provided adequate reasons for a lump sum award.  In her follow up decision, Ross J. dismissed Applicant’s application under Alberta Rules of Court, Alta Reg 124/2010 as a “second kick at the can”, holding that any remedy Applicant may have lay with the Court of Appeal. Ross J. did agree to reframe her earlier order and, exercising her own options under the Arbitration Act, RSA 2000, c A-43, provided directions to the arbitrator. In doing so, Ross J. gave the arbitrator much broader scope than that which may have been read into her earlier decision and expressly confirmed his discretion to determine the procedure warranted to exercise that authority.

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B.C. – settlement privilege applies to arbitration and justifies refusal of access to information request

In White Rock (City) (Re), 2020 BCIPC 25, Ian C. Davis, Adjudicator with the B.C. Information and Privacy Commissioner, held that common law settlement privilege applied to access to information requests, despite omission to include express mention of that privilege as a ground to resist disclosure, and that the privilege applied to arbitration.  Dismissing argument that arbitration was not a “litigious dispute”, Adjudicator Davis also held that settlement privilege is jointly held between parties to settlement negotiations and concluded that procedural fairness required that he consider the other arbitral party’s submissions on settlement privilege even if that other arbitral party was not a party to the access request.

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Québec – choice of law does not determine choice of forum

In Corner Brook Pulp and Paper Limited v. Valmet Ltd., 2020 QCCS 2136, Mr. Justice Gregory Moore dismissed a defendant’s argument that choice of Ontario law in its contracts with another entity required application of Ontario’s Arbitration Act, 1991, SO 1991, c 17.  Moore J. held that choice of governing law did not determine choice of forum and that Québec’s Civil Code of Québec, CQLR c CCQ-1991 provides that the law of the court seized of the matter governs procedure.  Defendant’s procedural decision to force intervention of its contracting party as defendant-in-warranty to the principal claim yielded to the choice of forum clause indicating a clear intention to remove jurisdiction.

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Ontario – courts cannot imply terms which legislation requires be express to have valid arbitration agreement

In Magotiaux v. Stanton, 2020 ONSC 4049, Madam Justice Jennifer Mackinnon denied to stay court proceedings, having determined that the parties’ otherwise detailed agreement to arbitrate was subject to, but did not comply with all of, certain formal requirements required by the Family Law Act, RSO 1990, c F.3 and the Family Arbitration, O Reg 134/07, the sole regulation made to the Arbitration Act, 1991, SO 1991, c 17. Mackinnon J. recognized that courts can imply terms into a contract following the approach in Pacific Hotels Ltd. v. Bank of Montreal, 1987 CanLII 55 (SCC) but, where legislation has mandated express terms, courts cannot imply terms to produce a binding agreement to arbitrate compliant with that legislation. 

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Ontario – interim procedural orders “immune from review” during arbitration even when titled “award”

In Hristovski v. Hristovski, 2020 ONSC 4021, Madam Justice Francine Van Melle held she had no jurisdiction to hear an appeal of an arbitrator’s pre-merits hearing denial of further document disclosure. Despite use of the term “award” to title the decision, Van Melle J. determined that the denial was an interim procedural order. Unlike an award which disposes of disputes between parties, the order was not eligible for appeal, being “immune from review” under the Arbitration Act, 1991, SO 1991, c 17.  Van Melle J.’s reasons do not assert that interim decisions cannot later be challenged when appealing the final award if an interim decision impacts on the result. As neither party argued whether leave had to be sought/obtained, Van Melle J. made no comment on the issue.

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