B.C. – court enforces parties’ choice to apply International Commercial Arbitration Act to employment disputes – #465

In Johnston v. Octaform Inc., 2021 BCSC 536, Mr. Justice Nigel P. Kent dismissed an application to set aside an interim award which confirmed among other things that (i) disputes between the parties arising from employment agreements were subject to the International Commercial Arbitration Act, RSBC 1996, c 233 and (ii) the arbitrator had jurisdiction to grant equitable remedies.  Kent J. held that the manner in which the parties framed their pleadings (i) supported application of the ICAA as a choice expressly made and (ii) was “an explicit recognition” of the arbitrator’s equitable jurisdiction and their agreement to apply Nevada law as the substantive law under section 28 of the ICAA reinforced that jurisdiction.  Kent J. also upheld the arbitrator’s decision to dismiss Petitioners’ abuse of process claims, noting that Respondent “arguing diametrically opposed positions on the same point of law raised in two different legal proceedings … does not, however, necessarily amount to an abuse of process where it involves different contracting parties, different governing law, different lawyers/law firms representing the parties, no actual adjudication of the legal point in question, and no advantage obtained by the inconsistent submissions”.  Kent J. dismissed Respondent’s objection that Petitioners applied outside the delay set by ICAA’s section 16(6), holding that the application qualified as a “proceeding” under B.C.’s COVID-19 (Limitation Periods in Court Proceedings) Regulation which suspended the limitation period. Kent J. also declined to engage in determining the impact of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

Continue reading “B.C. – court enforces parties’ choice to apply International Commercial Arbitration Act to employment disputes – #465”

B.C. – patently unreasonable to prefer one expert over another when both agree – #461

In Han v. Baune, 2021 BCCA 139, the Court of Appeal held that an arbitrator’s decision to prefer one expert’s report over another’s was patently unreasonable as both confirmed the same facts determinative of a fact in dispute.  Determining that the parties’ expert reports did not conflict in any material respect and that reliance on only one was patently unreasonable, the Court set aside the award and remitted the matter for rehearing before another arbitrator.  Though the decision involved a statutory scheme for arbitration and judicial law principles, the Court’s determination of how arbitrator must handle overlapping expert reports still serves as guidance in private commercial arbitration which invariably involve experts’ reports.

Continue reading “B.C. – patently unreasonable to prefer one expert over another when both agree – #461”

B.C. – non-parties to agreement to arbitrate granted stay of counterclaim along with plaintiff – #459

Pursuant to section 7(2) of the Arbitration Act, SBC 2020, c 2 and section 10 of Law and Equity Act, RSBC 1996, c 253, Madam Justice Carla L. Forth in Kwon v. Vanwest College Ltd., 2021 BCSC 545 stated a Defendant’s counterclaim against Plaintiff and non-parties to the agreement to arbitrate,.  Forth J. relied on (i) precedent adopting a generous interpretation of “arising out of” in the agreement to arbitrate, (ii) the intertwined, overlap of factual matrices and (iii) avoidance of multiple proceedings and inconsistent decisions to grant a stay in regard to Plaintiff and to include the arbitral non-parties as defendants to that counterclaim. Defendant requested Forth J. also stay Plaintiff’s claim against it on the basis that Defendant sought an equitable set-off.  Forth J. refused, considering that the parties’ claims did not arise out of the same matter and that, even if Defendant’s counterclaim arose out of the same contract giving rise to Plaintiff’s claim, the counterclaim did not go to the “root” of Plaintiff’s claim.

Continue reading “B.C. – non-parties to agreement to arbitrate granted stay of counterclaim along with plaintiff – #459”

B.C. – stay of execution’s “low threshold” for merits met by appeal offering opportunity to consider Mexico v. Cargill – #447

In lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCCA 108, Madam Justice Susan Griffin stayed execution of part of an arbitration award pending appeal of lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCSC 15 but without preventing Respondent’s application for recognition of the same award.  Required to consider the merits of the appeal when considering a stay of execution, Griffin J.A. focused on proposed grounds relating to the decision made to apply a standard of reasonableness rather than a standard of correctness for errors of law, as established in Mexico v. Cargill, Incorporated, 2011 ONCA 622.  Griffin J.A. noted the release of Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 after the decision in first instance, the B.C. Court of Appeal’s own choice in Greater Vancouver Sewerage and Drainage District v. Wastech Services Ltd., 2019 BCCA 66 to apply standard of correctness and the lack of a B.C. Court of Appeal decision which re-considered the standard set following the various, recent Supreme Court decisions.  She determined that Appellant met the “low threshold” but she did not address success on appeal. Following her decision, Mr. Justice Gordon S. Funt in lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCSC 422, acknowledged the appeal of his earlier decision and, having noted Griffin J.A.’s stay of execution, granted recognition of the award.

Continue reading “B.C. – stay of execution’s “low threshold” for merits met by appeal offering opportunity to consider Mexico v. Cargill – #447”

B.C. – application for stay pursuant to ICAA should be heard before class action certification hearing – #446

In Wittman v. Blackbaud, Inc., 2021 BCSC 415, Madam Justice Jasmin Ahmad acknowledged that the combined reading of section 8(1) of the International Commercial Arbitration Act, RSBC 1996, c 233 and Rule 9-6(2) of the Supreme Court Civil Rules, BC Reg 168/2009  presented a “dilemma” to Defendants wishing to apply for both a stay in favour of arbitration and summary judgment.  Defendants must apply for a stay before submitting their first statement on the substance of the dispute but must serve such statement prior to applying for summary judgment.  Ahmad J. pointed out that section 8(1) did not expressly prevent Defendants from filing their statement after applying for a stay but anticipated that “a cautious defendant would not file a response”.  Though Defendants suggested Ahmad J. could grant them leave to file a response while relying on section 8(1), Ahmad J. observed that Defendants had taken no such steps to obtain such leave.  Ahmad J. also addressed how the International Commercial Arbitration Act’s limited the court’s discretion on sequencing decisions under the Class Proceedings Act, RSBC 1996, c 50, observing that “in most cases, an application for stay pursuant to the ICAA should be heard in advance of the certification hearing”.

Continue reading “B.C. – application for stay pursuant to ICAA should be heard before class action certification hearing – #446”

B.C. – court declines to “look behind” award on challenge to Mareva injunction filed with recognition/enforcement proceedings – #445

In Enrroxs Energy and Mining Group v. Saddad, 2021 BCSC 291, Mr. Justice Alan M. Ross declined to “look behind” an international commercial arbitration award when determining whether an applicant for a Mareva injunction demonstrated a strong prima facie case.   Ross J. also refused to explore contradictory statements allegedly made by the successful arbitral party in the Swiss arbitration and in related UAE litigation involving ownership of equipment acquired with proceeds of a loan.  Ross J. noted that “this issue was raised in the Swiss arbitration case and discussed in the decision. I find that accepting the respondent’s argument on this point would again require me to look behind the arbitration award. Whether [Petitioner’s witness] took inconsistent positions does not affect this proceeding, which seeks enforcement and recognition of the Swiss decision”.  Petitioner also argued that the Mareva injunction sought to prevent disposal/dissipation of assets and not to execute on the award, pending the determination of its recognition and enforcement application.

Continue reading “B.C. – court declines to “look behind” award on challenge to Mareva injunction filed with recognition/enforcement proceedings – #445”