Alberta – court acknowledges litigants’ commercial interest in arbitration as alternative to court litigation – #378

In Hannam v. Medicine Hat School District No. 76, 2020 ABCA 343, Alberta’s Court of Appeal assessed the practical significance of its earlier five (5) judge panel decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 which considered the benefits of summary judgment set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87.  In doing so, the majority and dissent both commented on the promised benefits of arbitration in contrast to court litigation.  The present note highlights those passages to illustrate contemporary comments by the courts.

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Alberta – unambiguous wording on arbitration costs in standard contract does not merit court intervention – #377

In K-Rite Construction Ltd v. Enigma Ventures Inc, 2020 ABQB 566, Madam Justice Donna L. Shelley dismissed challenges to a costs award, holding that awarding costs is discretionary and generally will be a question of mixed fact and law.  Shelley J. held that, absent some form of improper consideration, arbitrators have full discretion as to costs, may not be bound by traditional rules regarding the award of costs and using their discretion does not amount to an error of law.  Shelley J. also dismissed Applicants’ challenges to the arbitration agreement’s costs provisions contained in an industry-specific contract.  Despite the potential importance that standard forms may arguably have in an industry, unambiguous wording does not merit the court’s intervention.

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Alberta – stay application lacks evidence required to demonstrate overlap/status of duplicative proceedings – #371

To decide whether to exercise her discretion to stay duplicative proceedings involving administrative action taken in two (2) provinces, Madam Justice Susan L. Bercov in Mema v. Chartered Professional Accountants of Alberta, 2020 ABQB 486 drew on principles stated in UCANU Manufacturing Corp v. Calgary (City), 2015 ABCA 22 which considered whether to issue a stay when the duplicative proceedings involved a court action and an arbitration.  Bercov J. declined to exercise her discretion due to applicant’s failure to meet his evidentiary burden to establish the overlap and status of the duplicative proceedings. Her comments on applicant’s evidence help guide arbitration practitioners invoking overlap with arbitration.  The note also lists recent Alberta cases applying those principles to stays involving arbitration.

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Alberta – challenge to validity of agreement to arbitrate cannot evade application of Arbitration Act – #367

In Aldred Estate (Re), 2020 ABQB 469, Mr. Justice Craig M. Jones held that a court’s discretion to refuse a stay under section 7(2) of the Arbitration Act, RSA 2000, c A-43 was limited to specific circumstances and a potential for inefficiency did not empower courts to disregard a statutory imperative. Despite challenges to the validity of the arbitration agreement, a court may grant the stay and allow the arbitrator to determine allegations of invalidity. Jones J. dismissed as “insupportable” the argument that the Arbitration Act did not apply if a party challenged the validity of agreement to arbitrate. Referring to sections 7(2)(b) and section 17(3), Jones J. held that these provisions would make no sense if an invalid arbitration agreement rendered the Arbitration Act inapplicable.

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Alberta – alleged limitations of arbitration unproven/insufficient to grant jurisdiction to regulator – #362

In FortisAlberta Inc v. Alberta (Utilities Commission), 2020 ABCA 271, Mr. Justice Jack Watson refused leave to appeal from a regulator’s decision that it lacked jurisdiction over costs otherwise subject to arbitration. Watson J. held that a “harmonious reading” of legislation governing the regulatory environment created jurisdiction for both regulator and arbitration tribunals.  He resisted appellant’s alleged efforts to “confect” a “solemnly commercial sounding term” to bring the dispute within the regulator’s jurisdiction.  Watson J. also determined that any alleged limitations in the arbitration process were insufficient to empower the regulator to “effectively override” the parties’ contracts.  As appellate gatekeeper, Watson J. concluded that a full panel was unlikely to find the claim of inadequacy of arbitration anything more than just a claim supported only by appellant’s own say so.

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