B.C. – period in which to appeal partial award runs from date of that award, not the later, final award

In Milner v. Clean Harbors Industrial Services Canada, Inc., 2020 BCSC 68, Mr. Justice Anthony Saunders dismissed argument by a late-filing petitioner that the title “Partial Award” (i) created “inherent uncertainty” and (ii) justified calculating time to seek leave to appeal from the later, final award.  Saunders J. held that the title “Partial Award” was not ambiguous and petitioner demonstrated no confusion as to his rights determined under that award.  Saunders J. held that, of all the factors applicable to exercising his discretion to extend that time, the interests of justice subsumed the others and did not favour petitioner.

Continue reading “B.C. – period in which to appeal partial award runs from date of that award, not the later, final award”

B.C. – evidence of fraud need not be new to be admissible on post-decision challenge

The fact that evidence of fraud existed at the time of hearing might justify its rejection as ‘new’ evidence on a post-decision challenge but cannot justify rejecting it as evidence of fraud. In McCallum v. Mooney, 2019 BCSC 1938, Madam Justice Nitya Iyer granted a defendant’s application to set aside a default decision, even after having unsuccessfully challenged it by internal appeal, due to claimant allegedly withholding a key document during the initial hearing on the merits.

Continue reading “B.C. – evidence of fraud need not be new to be admissible on post-decision challenge”

B.C. – land transfer made during arbitration later voided as fraudulent attempt to defeat creditors

In Balfour v. Tarasenko, 2019 BCSC 2212, knowledge of a pending but unfinished arbitration qualified as one of the facts relevant to a declaration under B.C.’s Fraudulent Conveyance Act, RSBC 1996, c 163 to void a land transfer made during the arbitration and before the final award issued. Though hampered by an incomplete evidentiary record presented by self-represented litigants, Mr. Justice Dennis K. Hori did identify the land transfer as having the effect of delaying, hindering or defeating creditors.

Continue reading “B.C. – land transfer made during arbitration later voided as fraudulent attempt to defeat creditors”

B.C. – court asserts inherent jurisdiction under insolvency legislation to override arbitration clauses

In Petrowest Corporation v. Peace River Hydro Partners, 2019 BCSC 2221, Madam Justice Nitya Iyer held that mandatory terms of B.C.’s Arbitration Act, RSBC 1996, c 55 do not prevent courts from exercising their inherent jurisdiction to refuse to stay court proceedings where provisions of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 apply.  Iyer J. lists a number of factors to consider when exercising that jurisdiction.  The reasons and result mark an innovation in how courts balance respect of party autonomy endorsed by arbitral legislation with interests recognized in other legislation. Iyer J. also held that a trustee in bankruptcy is a party to an arbitration agreement when the trustee institutes litigation to enforce the terms of the main contract in which the arbitration agreement appears.

Continue reading “B.C. – court asserts inherent jurisdiction under insolvency legislation to override arbitration clauses”