Alberta – videoconferencing for cross-examination on affidavit authorized, despite objection, because “It’s 2020”

In Sandhu v. Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359, Mr. Justice Michael J. Lema concluded that, despite no express mention in the applicable rules, the court has authority to direct remote questioning on affidavits despite a party’s resistance.  In his reasons, Lema J. referred to Alberta case law from 2000 and Ontario case law from 2009 which clearly supported the use of videoconferencing for cross-examination on affidavit as “a normal process” in modern international litigation or arbitration.  Lema J. also cited from the May 1, 2020 decision in Arconti v. Smith, 2020 ONSC 2782 authorizing videoconferencing because “It’s 2020”. Lema J.’s reasons include extensive references to key cases discussing the evolution of technology while acknowledging concerns for irritants and mischief.

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Alberta – communication of privileged offers after award but before clarification/costs insufficient to raise bias

In Clark v. Unterschultz, 2020 ABQB 338, Madam Justice June M. Ross dismissed a challenge to an award on the merits, holding that one party’s communication of privileged settlement offers after the award and before the costs award were insufficient to meet the high threshold required to find real or perceived bias.  Ross J. determined that a reasonable person, viewing the matter realistically and practically, and knowing that the hearing had concluded and the substantive award had issued, would be unlikely to conclude that the arbitrator would not decide the remaining matters fairly.

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Alberta – stay of BIA order lifted, enabling trustee to investigate transactions preventing execution of award

On application by a successful arbitral party, Mr. Justice Brian O’Ferrall in Pacer Holdings Construction Corporation v. Richard Pelletier Holdings Inc, 2020 ABCA 47 lifted a stay imposed by the appeal filed by the losing arbitral party against the order putting it in bankruptcy.  The successful arbitral party challenged certain transactions by the losing arbitral party which “stripped” the latter of all its assets. O’Ferrall J.A. was “not yet convinced” to interpret the Bankruptcy and Insolvency Act, RSC 1985, c B-3 to mean that a “dormant shell” corporation was not a “debtor” or “insolvent person”.  Lifting the stay enabled the trustee to exercise powers ordinary creditors do not have, including collection of information relevant to ordering transferees of property of the bankrupt arbitral party to pay to the difference between the value of the consideration the bankrupt gave and the value transferees received.

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Alberta – decision to initiate litigation rather than mandatory arbitration qualifies as “injury”

In HOOPP Realty Inc v. Emery Jamieson LLP, 2020 ABCA 159, Alberta’s Court of Appeal underlined the importance of initiating arbitration instead of litigation when bound by a mandatory arbitration agreement.  In considering appeals from motions for summary disposition of actions filed by a client against two (2) law firms, the Court held that a lawyer’s omission to serve the notice to arbitrate qualified as an “injury” to the client within the meaning of section 1(e) of the Limitations Act, RSA 2000, c L-12.  The Court further held that the current law firm’s knowledge of the omission by the former law firm could be imputed to the client in order to trigger the commencement of the limitation period and that the Limitations Act focused on knowledge of facts and not applicable law or chances of success.

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Alberta – unilateral offers to mediate/arbitrate fail to resist dismissal of litigation under “drop dead rule”

In McKay v. Prowse, 2020 ABCA 131, Alberta’s Court of Appeal upheld the dismissal of Plaintiff’s litigation despite Plaintiff’s genuine but unilateral invitations to mediate or arbitrate, holding that unrequited overtures do not qualify as significant advances in a litigation.  Using jurisdiction confirmed by the Alberta Rules of Court, Alta Reg 124/2010, the Court determined that Plaintiff had failed to take a significant step in three (3) years prior to the application made by Defendant.  The Court cautioned that, absent a standstill agreement or a defendant’s tactics to obstruct, stall or delay, if a defendant fails to accept invitations to engage in alternate dispute resolution mechanisms, plaintiff continues to bear the onus to advance its action or risk having it struck.

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Alberta – costs are discretionary, not a discrete legal issue submitted to arbitrator, must be exercised judicially

In Allen v. Renouf, 2020 ABQB 98, Mr. Justice C. Scott Brooker held that an arbitral party which ignores an opportunity to present its case cannot argue that it was treated manifestly unfairly.  Brooker J. dismissed Applicant’s attempt to challenge a costs award which he categorized as a discretionary decision but equally disagreed with Respondent’s argument that costs were a discrete legal issue expressly submitted to the arbitrator and shielded from appeal under section 44(3) of Alberta’s Arbitration Act, RSA 2000, c A-43. He did acknowledge that costs awards may raise a question of law if the discretion was not exercised judicially.  

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Alberta & Manitoba – courts take different paths to different outcomes following same S.C.C. case

In Cove Contracting Ltd v. Condominium Corporation No 012 5598 (Ravine Park), 2020 ABQB 106, Mr. Justice Grant S. Dunlop held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 had not changed the standard of review for commercial arbitrations from reasonableness to correctness and denied leave to appeal.  In Buffalo Point First Nation et al. v. Cottage Owners Association, 2020 MBQB 20, Mr. Justice Chris W. Martin held that Vavilov had changed the standard and granted leave to appeal.  Dunlop J. postponed his hearing to give the parties the opportunity to argue the role of Vavilov.  Martin J. issued his decision on leave to appeal without hearing from the parties but invited them to submit argument for the merits of the appeal.

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Alberta – participation in court proceedings prior to stay application waives mandatory arbitration

In Agrium, Inc. v. Colt Engineering Corporation, 2020 ABQB 53, Master J.T. Prowse held that he had discretion to refuse a stay in favour of mandatory arbitration and could do so on the basis of unfairness to plaintiff stemming from the applicants’ participation in court proceedings.  That participation, though minimum, coupled with two (2) years of delay, lead Master Prowse to conclude that it would be unfair to plaintiff to allow defendants to “go back on their choice to participate in this litigation”.

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Alberta – heavily-customized industry standard form contract ineligible for precedential value

In Prairie Roadbuilders Limited v. Flatiron-Dragados-Aecon-Lafarge, A Joint Venture, 2019 ABQB 934, Mr. Justice James T. Eamon held that interpretation of an industry standard form contract promised no precedential value due to extensive negotiated changes which had resulted in an “awkward hybrid” and that resolution of the parties’ dispute depended on key portions drafted by the parties.  Eamon J. comments also on the role of “boilerplate” and further held that the issues submitted to the arbitrator qualified as discrete questions of law and, having already been referred to and determined in arbitration, could not be re-submitted on appeal to the court under section 44(3) of Alberta’s Arbitration Act, RSA 2000, c A-43.

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Alberta – Defendants obtain stay after filing defence once they discover contract contained arbitration clause

In Obcorp Holdings Inc v. Mammoet Canada Western Ltd, 2019 ABQB 960, Master B.W. Summers stayed litigation in favour of Defendants who, in “particularly unique” circumstances, had already pleaded to the action but did so unaware of the arbitration clause.  Based on uncontradicted evidence, Defendants had acted promptly upon learning of the arbitration clause included in an updated version of their contract communicated by Plaintiff during the document discovery phase and had proposed that the few court pleadings be used to frame the issues in arbitration.

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