Arbitration Matters 2.0

Daniel Urbas has been appointed a judge of the Québec Superior Court

Effective July 1, 2021, Lisa C. Munro, a leading arbitration practitioner, has accepted to continue releasing notes on recent cases from across Canada at the new and improved ArbitrationMatters.com.  In addition to posting her own notes, Lisa as editor of Arbitration Matters has approached a select list of other experienced arbitration practitioners who will each contribute regularly to the notes.  See the Contributors page for more.   All content covered in the 508 notes released up to June 30, 2021 has been added to Lisa’s site and accessible with newer material such as Lisa’s introductory note “B.C. – Challenge of arbitrator’s interpretation of restrictive covenant in shareholders agreement, relying upon employment contract analysis, not appealable “extricable error of law” #509”.

B.C. – no breach of natural justice where arbitrator invites submissions on new issue but declines to incorporate them in award – #508

In Hotel Georgia Development Ltd. v The Owners, Strata Plan EPS849, 2021 BCSC 1236, Madam Justice Heather MacNaughton held that the arbitrator committed no breach of natural justice by inviting submissions on a new issue which he introduced but then declined to rely on out of fairness to Respondent. “Where an arbitrator considers an approach to an issue that has not been raised by either party, natural justice requires the arbitrator to give the parties an opportunity to comment on the approach. The fact that a party does not make sufficient use, if any, of the opportunity given by the arbitrator is not a breach of natural justice and, accordingly, not a basis for setting aside an arbitral award”.  MacNaughton J. observed that the arbitrator had signalled a gap in Claimant’s evidence and sought submissions on his ability to make a quantum meruit award. Despite having invited submissions and effectively granted Claimant an opportunity to compensate for its evidentiary gap, the arbitrator elected not to reproduce the responding submissions in the award.  “It would be clearly unfair and prejudicial to the Respondent to have a new legal basis for recovery of common law damages at this stage and I exercise my discretion against pursuing that analysis”.

Continuer la lecture de « B.C. – no breach of natural justice where arbitrator invites submissions on new issue but declines to incorporate them in award – #508 »

Québec – request for conciliation under statutory dispute resolution process qualifies as demand for arbitration – #507

In Therrien Couture Joli-Coeur v. Chouinard, 2021 QCCQ 4944, Mr. Justice Enrico Forlini dismissed Client’s challenges against homologation of an award which issued in favour of the Law Firm, determining that Client’s request for conciliation had initiated arbitration of Law Firm’s accounts.  Though Client and Law Firm had no written agreement to arbitrate, the dispute resolution process set out in the Regulation respecting the conciliation and arbitration procedure for the accounts of advocates, CQLR c B-1, r 17 qualified as a consensual process and Client’s conciliation request effectively initiated the arbitration.  In regard to the alleged breach of natural justice by Law Firm’s delivery of documents the day of the hearing, Forlini J. held that Client could not object to a procedure which had been determined by the Council well in advance of the hearing and in regard to which Client did not object or request an adjournment of the hearing.

Continuer la lecture de « Québec – request for conciliation under statutory dispute resolution process qualifies as demand for arbitration – #507 »

B.C. – court issues sealing orders to avoid “defeating parties’ reasonable expectations of privacy in an ongoing arbitration” – #506

In Stewart v. Stewart, 2021 BCSC 1212, Mr. Chief Justice Christopher E. Hinkson issued sealing orders to protect materials filed (i) in a pending arbitration agreed to as part of the settlement of earlier court litigation and (ii) in court when the parties returned to court post-settlement to dispute compliance with the initial settlement.  Applying the two (2) part test developed for publication bans in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC) and applied to confidentiality orders in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, Hinkson C.J. determined that “disclosure of this information would be likely to undermine the public policy in this jurisdiction of encouraging arbitrations by defeating the parties’ reasonable expectations of privacy in an on-going arbitration”.  Hinkson C.J. limited his orders to specific documents and affidavit passages filed either in the ongoing arbitration or in court and referenced the confidentiality provisions in BCICAC’s (now VanIAC) former Revised Domestic Commercial Arbitration Rules of Procedure which applied to the arbitration.

Continuer la lecture de « B.C. – court issues sealing orders to avoid “defeating parties’ reasonable expectations of privacy in an ongoing arbitration” – #506 »

Alberta – dispute requiring expert evidence and expeditious resolution prompts court to propose arbitration – #505

In Canadian Consulting Engineers Inc v. Brazeau (County), 2021 ABQB 464, Master W. Scott Schlosser declined to proceed by way of summary judgment because “this dispute is not now capable of being resolved in a fair and just way on the existing record” and required the assistance of expert opinion witnesses.  Master Schlosser observed that plaintiff made “no pretense of applying for a summary determination in the course of an ordinary lawsuit” and that its “strategy appears to have been to prepare this case for Summary Judgment directly”.  Having observed plaintiff’s “very ambitious path taken” and desire to “seek expeditious resolution” and having qualified the dispute as unsuitable for summary judgment due to the expert evidence required, Master Schlosser did prompt the parties to engage in the arbitration still available in their contract and, when doing so, to retain “an expert arbitrator”.

Continuer la lecture de « Alberta – dispute requiring expert evidence and expeditious resolution prompts court to propose arbitration – #505 »

Ontario – offer by unsuccessful parties to engage in streamlined dispute resolution justifies reduced costs award – #504

In Crosslinx v. Ontario Infrastructure, 2021 ONSC 4364, Mr. Justice Markus Koehnen limited costs awarded to successful Applicants due to their failure to accept Respondents’ offer to discontinue Applicants’ court application and return to the parties’ dispute resolution process, thereby skipping certain steps.  While he acknowledged the potential difficulty in comparing non-pecuniary elements in offers to settle against eventual court orders, Koehnen J. limited cost recovery to $92,119.92 rather than the $430,000.00 sought because Respondents’ offer, if accepted, “would have led to both a negotiation and a final determination of the issues in a much faster timeframe than is possible under my order”. 

Continuer la lecture de « Ontario – offer by unsuccessful parties to engage in streamlined dispute resolution justifies reduced costs award – #504 »