B.C. – application to cancel certificate of pending litigation granted despite stay of litigation for arbitration

In 1077708 BC Ltd. v. Agri-Grow Farm Services Ltd., 2019 BCSC 977, Madam Justice Catherine Murray granted Defendants’ application to cancel and remove a Certificate of Pending Litigation despite a stay of litigation granted by consent on broad terms.  Murray J. noted that Plaintiff provided no authority requiring Defendants to first apply to lift the stay. She added that she saw “no logic or merit” in that requirement and held that Plaintiff was not prejudiced by having the court consider the application.

Continue reading “B.C. – application to cancel certificate of pending litigation granted despite stay of litigation for arbitration”

B.C. – incorporation by reference of arbitration agreement a question of intent not category of contract

In MRC Total Build Ltd. v. F&M Installations Ltd., 2019 BCSC 765, Madam Justice Shelley C. Fitzpatrick determined that it was arguable that parties to one contract intended to incorporate by reference the arbitration provisions set out in another contract.  Relying on the actual wording of the contract between the parties, Fitzpatrick J. identified the court’s role as discerning the intention of the parties. She resisted applying a technical rule to interpreting contracts or categorizing contracts into one type or another as a proxy for intention.  Once the court finds that it is arguable that such an intention exists, and absent the arbitration agreement being incapable of being performed, the court must refer the matter to the arbitrator for determination.

Continue reading “B.C. – incorporation by reference of arbitration agreement a question of intent not category of contract”

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”.

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

B.C. – no abuse of court process by either litigant simply by seeking or resisting arbitration

In Grewal v. Mann, 2019 BCSC 433, Mr. Justice Dennis Hori held that neither party was entitled to special costs following one party’s decision to file an action in court and the other party’s decision to apply for a stay of proceedings.  In a dispute familiar to courts across Canada, both parties disputed the role of arbitration but, as Hori J. held, each appeared to genuinely pursue their legal remedies and in doing so did not commit any abuse of the court’s process.

Continue reading “B.C. – no abuse of court process by either litigant simply by seeking or resisting arbitration”

B.C. – no arbitral error where arbitrator seeks assistance on legal principles raised in, but beyond, parties’ authorities

In MSI Methylation Sciences, Inc. v. Quark Ventures Inc., 2019 BCSC 440, Madam Justice Elaine J. Adair dismissed claims that the arbitrator had committed arbitral error due to breach of natural justice by allegedly (i) deciding the dispute on authorities not submitted by either party and (ii) adopting his own theory of damages not advanced by either party.  Adair J. held that the legal principles were not obscure legal points raised for the first time, created by the arbitrator or divorced from the cases and argument submitted by the parties.  Adair J. also held that the arbitrator did not commit arbitral error by not referring to each of a party’s submissions or seeking assistance beyond authorities submitted.

Continue reading “B.C. – no arbitral error where arbitrator seeks assistance on legal principles raised in, but beyond, parties’ authorities”