Alberta – dispute requiring expert evidence and expeditious resolution prompts court to propose arbitration – #505

In Canadian Consulting Engineers Inc v. Brazeau (County), 2021 ABQB 464, Master W. Scott Schlosser declined to proceed by way of summary judgment because “this dispute is not now capable of being resolved in a fair and just way on the existing record” and required the assistance of expert opinion witnesses.  Master Schlosser observed that plaintiff made “no pretense of applying for a summary determination in the course of an ordinary lawsuit” and that its “strategy appears to have been to prepare this case for Summary Judgment directly”.  Having observed plaintiff’s “very ambitious path taken” and desire to “seek expeditious resolution” and having qualified the dispute as unsuitable for summary judgment due to the expert evidence required, Master Schlosser did prompt the parties to engage in the arbitration still available in their contract and, when doing so, to retain “an expert arbitrator”.

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Alberta – allocation of lien security to subcontractors adjourned pending arbitration between owners and general contractor – #492

In Avli BRC Developments Inc v. BMP Construction Management Ltd, 2021 ABQB 412, Master Andrew R. Robertson Q.C. adjourned an application for costs claimed against security provided further to an order under Alberta’s Builders’ Lien Act, RSA 2000, c B-7, holding that he could not determine and allocate amounts owing to subcontractors or related costs until a pending arbitration decided the amounts owing between the building owners and the general contractor.

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Alberta – Arbitration Act does not incorporate court’s powers in Rules of Court to extend delays – #489

In Mailer v. Mailer, 2021 ABQB 423, Mr. Justice Michael J. Lema confirmed he had no authority to extend the delay in which to file an application for leave to appeal an arbitration award, noting that the “Arbitration Act [RSA 2000, c A-43] does not provide for extensions of the s. 46 deadlines, whether directly or indirectly e.g. by incorporating the extension powers in the [Alberta Rules of Court, Alta Reg 124/2010]”.  The party seeking to challenge the award had filed an appeal as of right within the thirty (30) day delay but did not seek leave within that delay. The parties had agreed that their award “shall be subject to an appeal only on question of law in accordance with s. 44(2) of the Arbitration Act” and Lema J. held that their addition of the phrase “in accordance with s. 44(2)” changed the meaning of the first eleven (11) words, imposing a leave requirement.  Though the party appealed in the relevant delay, he failed to comply with the requirements of section 44(2) to seek leave and Lema J. lacked authority to remedy that procedural decision.

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Alberta – absent summary judgment motion, stay granted because summary judgment exemption is premature – #481

In Melcor Reit Limited Partnership (Melcor Reit GP Inc) v. TDL Group Corp (Tim Hortons), 2021 ABQB 379, Master W. Scott Schlosser stayed a proceeding because plaintiff’s reliance on the summary judgment exemption in section 7(2)(e) of Alberta’s Arbitration Act, RSA 2000, c A-43 was “at the very least premature”.  Master Schlosser held that a party resisting referral to arbitration under section 7(2)(e) must have first filed a summary judgment application and, until doing so, the exemption was not in issue.  Master Schlosser also contrasted the state of summary judgment principles applicable when the Arbitration Act was first introduced and the current status of those principles following Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 SCR 87.  He noted that “[s]omething now suitable for Summary Judgment is quite different from what might have been suitable when Section 7(2)(e) of the Arbitration Act was passed into law” and “[a]n expansive reading of summary disposition is likely much wider than what was originally intended by the Act”.

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Alberta – binding valuation of shares not arbitrable, limits claims in litigation over overlapping issues – #472

To resolve the scope of an earlier share valuation and subsequent arbitration unsuccessfully challenging that valuation and their impact on current litigation, Madam Justice Susan E. Richardson in Lischuk v. K-Jay Electric Ltd, 2021 ABQB 280 explored five (5) key legal principles: estoppel by convention, res judicata, issue estoppel, cause of action estoppel and abuse of process by litigation. The parties disputed (i) termination of L’s employment contract with employer K and (ii) valuation of shares held by L’s holding company 997 under a shareholder’s agreement between 997 and employer K. L argued that a reasonable notice period after thirty-five (35) years of employment would extend the date at which his shares would be valued but 997’s contract submitted valuation of the shares as of the date of the termination. Richardson J.’s comments underline (a) the importance of drafting parallel contracts which speak to each other in the event of dispute, (b) the consequences of privity of contract and (c) the binding effect of decisions which the parties agreed would have binding effect.

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Alberta – leave to appeal refused when ICC tribunal follows own procedure to bar late-raised ‘arguably complete’ defence – #463

Though she acknowledged that a particular notice provision in the parties’ subcontract “would arguably provide a complete defence”, Madam Justice Johnna C. Kubik in TR Canada Inc v. Cahill Industrial Limited, 2021 ABQB 274 held that the arbitral tribunal committed no breach of procedural fairness or rule of natural justice when it barred a party from relying on that provision for its defence.  Kubik J. held that the ICC Rules of Arbitrationempower the tribunal to establish the process by which the dispute will be presented and heard, including with respect to the timing for filing pleadings, the hearing of evidence and the timing of submissions”.  Dismissing leave to appeal the ICC tribunal’s award under section 44 of the Arbitration Act, RSA 2000, c A-43, Kubik J. held that the tribunal had “applied its own procedural rules to the record of proceedings, and exercised its discretion, within the powers conferred on it, to bar the defence raised”.  Kubik J. accepted that the tribunal was authorized to concluded that failure to plead the notice provisions was “prejudicial to the other party, depriving it of the opportunity to advance responsive evidence and argument.

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