Saskatchewan – absent party bound by disputed settlement terms signed by authorized solicitor/agent

In Bakken v. Bakken, 2020 SKQB 127, Madam Justice Brenda R. Hildebrandt held defendant to a mediated settlement regarding sale of land, holding that defendant authorized counsel to attend as her solicitor/agent and consulting her by telephone during the mediation prior to counsel’s signature. Disagreement between the parties regarding the settlement lead to litigation to enforce purportedly unclear terms documented by the settlement.  Litigation, filed May 20, 2010, was resolved ten (10) years later by trial judgment on May 7, 2020.  Hildebrandt J.’s reasons explore possible, but unsuccessful, defenses to a breach of settlement claim, including frustration and three (3) types of contractual mistake: common mistake, unilateral mistake, mutual mistake.

Continue reading “Saskatchewan – absent party bound by disputed settlement terms signed by authorized solicitor/agent”

Alberta – refusal to adjourn hearing respects due process if recognition/enforcement conditions present

In Pearson v. Pearson, 2020 ABCA 260, Alberta’s Court of Appeal distinguished between discretion to grant/refuse an adjournment and discretion which raises issues of procedural fairness. Deference is owed “generally” to the former, provided discretion is exercised judicially and sufficient weight given to all relevant considerations.  The latter raises the question of whether due process was followed and attracts no deference.  Despite disagreement whether a party had counsel of record and that party’s choice not to be ‘present’, the Court held that the party seeking adjournment suffered no prejudice because all the conditions in section 49 of the Arbitration Act, RSA 2000, c A-43 were ‘present’ and “there was no reason to think the outcome would have been different had an adjournment been granted”.

Continue reading “Alberta – refusal to adjourn hearing respects due process if recognition/enforcement conditions present”

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.

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

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.

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

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.

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

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.

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

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.

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

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.

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

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.

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

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”.

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