B.C. – “standard to interfere” with awards is “very high” to protect “speedy and final” resolution – #379

In Bosa Properties (Sovereign) Inc. v. The Owners, Strata Plan EPS2461, 2020 BCSC 1357, Madam Justice Neena Sharma reiterated that the “standard to interfere” with an arbitration award is “very high” because “people who choose commercial arbitration have elected to resolve their disputes in a forum that is speedy and final, without the intervention of the courts”.  Sharma J. observed that one of the purposes of the standard “is to discourage appeals to the court”, referring to earlier Ed Bulley Ventures Ltd. v. Eton-West Construction Inc., 2002 BCSC 826 which held that  “[i]f leave were granted too readily, one of the beneficial and distinguishing features of arbitration (its finality) would be lost”.

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Alberta – court acknowledges litigants’ commercial interest in arbitration as alternative to court litigation – #378

In Hannam v. Medicine Hat School District No. 76, 2020 ABCA 343, Alberta’s Court of Appeal assessed the practical significance of its earlier five (5) judge panel decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 which considered the benefits of summary judgment set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87.  In doing so, the majority and dissent both commented on the promised benefits of arbitration in contrast to court litigation.  The present note highlights those passages to illustrate contemporary comments by the courts.

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Alberta – unambiguous wording on arbitration costs in standard contract does not merit court intervention – #377

In K-Rite Construction Ltd v. Enigma Ventures Inc, 2020 ABQB 566, Madam Justice Donna L. Shelley dismissed challenges to a costs award, holding that awarding costs is discretionary and generally will be a question of mixed fact and law.  Shelley J. held that, absent some form of improper consideration, arbitrators have full discretion as to costs, may not be bound by traditional rules regarding the award of costs and using their discretion does not amount to an error of law.  Shelley J. also dismissed Applicants’ challenges to the arbitration agreement’s costs provisions contained in an industry-specific contract.  Despite the potential importance that standard forms may arguably have in an industry, unambiguous wording does not merit the court’s intervention.

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Ontario – court denies tenant relief from forfeiture where tenant disregards arbitration – #376

In Hunt’s Transport Limited v. Eagle Street Industrial GP Inc., 2020 ONSC 5768, Mr. Justice David A. Broad refused to exercise his discretion to grant a commercial tenant relief from forfeiture given tenant’s refusal to abide by its obligation to continue performance during arbitration of its disputes with the landlord.  Broad J. held that tenant’s conduct qualified as “wilful” self-help and justified the court in holding tenant to its obligations pending resolution of issues exclusively reserved for arbitration.  Tenant’s unilateral decision to withhold payments, prior to their determination exclusively reserved in the lease to the arbitrator, played a key role in Broad J.’s reasons.

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Québec – court relies on post-trial arbitration award to determine value under dispute at trial – #375

In Langlois v. Langlois, 2020 QCCS 2959, Mr. Justice Éric Hardy endorsed the court’s reliance on an arbitration award, which issued after a trial decision, to determine the amount of the value under dispute in court at trial.  Hardy J. accepted that the court could use the award to calculate court costs according to a court tariff.  The court trial had ordered a buyback of Plaintiffs’ shares due to oppression but also ordered the parties to engage in arbitration to determine the narrower issue of share valuation, as agreed to in their shareholders agreement.

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