B.C. – consent of parties to re-open formal order yields to functus officio

In Leonard v. The Manufacturers Life Insurance Company, 2019 BCSC 598, Mr. Justice J. Christopher Grauer dismissed an application, made on consent of the parties, to certify a class proceeding under B.C.’s Class Proceedings Act, RSBC 1996, c 50 in which the court had already dismissed a prior, unsuccessful application for certification.  Despite arising in a class action context, Grauer J.’s reasons offer insights regarding how applications on consent to re-open final awards could apply in arbitrations undertaken pursuant to statute and for which appeals are limited to questions of law.  A key authority cited by Grauer J. stated that an order cannot be revisited even with consent of the parties because “consent cannot clothe the arbitrator with jurisdiction he [or she] does not have”.

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Alberta – records subject to solicitor-client privilege and involving arbitration proceedings subjected to court review

In Alberta (Municipal Affairs) v. Alberta (Information and Privacy Commissioner), 2019 ABQB 274, Mr. Justice Steven N. Mandziuk examined records relating to arbitration proceedings in regard to which one party claimed solicitor-client privilege. Mandziuk J. demonstrated the process that will apply to such records if and when brought before the court.  His reasons set out the appropriate test for determining whether privilege exists, the practical manner in which the court will receive those records and how the courts must consider them on a document-by-document basis.

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Ontario – overlapping cost applications result in denial of most of costs claimed

In Iqbal v. Mansoor, 2019 ONCA 110, Ontario’s Court of Appeal declined to hear an appeal of a costs order, holding that appellant had refused to seek the required leave to appeal such an order.  Regarding the substance of appellant’s claim, the Court observed how the Superior Court had already dealt with costs in an earlier order.  The various reasons in the sequence of decisions identify opportunities for arbitral parties to either reserve or clarify the issue of costs incurred up to each phase of their dispute resolution.

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Québec – award still capable of being executed despite order not mentioning amounts owing by respondent

In Gestion PMOD Inc. v. 9e Bit (2015) Inc., 2019 QCCS 1154, Mr. Justice Steve J. Reimnitz homologated an award despite one of the dispositive orders omitting mention of the exact amounts due by respondent.  Contrary to the opposite result in Carpenter v. Soudure Plastique Québec Inc. 2019 QCCS 321 in which the court refused to homologate an order which did not liquidate damages, Reimnitiz J. held that the award was capable of being executed. The award referred to an exhibit listing the amounts due as well as respondent’s admission that they were due.

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Québec – arbitration agreement prevents defendant from adding third party as defendant-in-warranty

In Svensson v. Groupe Ovo inc., 2019 QCCS 1278,  Mr. Justice Yves Poirier refused a defendant’s motion to implead a third party as its defendant-in-warranty because the civil procedure allowing defendant to do so must yield to the parties’ arbitration agreement. The court’s procedural solution allowing a defendant to join its proposed action-in-warranty to an existing litigation is suppletive and gives no jurisdiction to the court to grant the motion or override the primacy of arbitration procedure.

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