ADR
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June 22, 2017
BINDING ARBITRATION - Submission to arbitration - Arbitrators - Powers and duties - Jurisdiction – Appeals - Deference to expertise of arbitrators - Jurisdiction of court to review
Appeal by Teal Cedar Products Ltd. (Teal) from a judgment of the British Columbia Court of Appeal confirming a judgment setting aside the decision of the British Columbia Supreme Court which partially upheld an arbitrator’s decision. The province of British Columbia and Teal were unable to settle how much compensation the province owed to Teal for reducing the latter’s access to certain improvements on Crown land which it used to harvest timber. Consequently, their dispute was submitted to arbitration as required by the Forestry Revitalization Act (Act). In order to determine the proper valuation method for Improvements Compensation, the arbitrator chose the Depreciation Replacement Cost Method because it was the only valuation methodology that determined Improvements Compensation separately from harvesting rights compensation, in keeping with their separate treatment in the act. The arbitrator held that Teal was entitled to interest on the Improvements Compensation, despite the No Interest Clause contained in the Settlement Framework Agreement, in light of the factual matrix of the parties’ failed settlement negotiations. The British Columbia Supreme Court essentially confirmed the arbitrator’s decision, only remitting the issue of Improvements Compensation for one of Teal’s timber supply areas, that of Lillooet. The British Columbia Court of Appeal ruled that the arbitrator’s award was, in this respect, both incorrect and unreasonable because it provided a “substantial publicly financed windfall” divorced from Teal’s actual financial loss. On the Interest Issue, the Court of Appeal opined that the arbitrator had made a legal error that gave the courts jurisdiction because he let the factual matrix overwhelm the Settlement Framework Agreement, despite the latter’s clear wording. The decision of the Court of Appeal on remand was silent in respect of the Lillooet Issue. The appeal involved two key interpretation issues, namely whether the arbitrator erred in law by: (1) interpreting the Depreciation Replacement Cost Method as being consistent with the act (the Valuation Issue); and (2) interpreting the Amended Settlement Framework Agreement as including interest in the province’s Improvements Compensation payment to Teal (the Interest Issue). This appeal also involved a statutory application issue, namely whether the arbitrator erred in law by denying Improvements Compensation to Teal when he applied his chosen methodology to the Lillooet Licence (the Lillooet Issue).
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June 19, 2017
Nova Scotia Barristers' Society new leadership announced
The Nova Scotia Barristers’ Society announced its new leadership for the coming year at its annual meeting on June 17.
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June 15, 2017
Fasken's Schwartz to receive OBA award
Fasken Martineau announced that Toronto partner Alan M. Schwartz will receive the Ontario Bar Association’s Award for Excellence in Taxation Law. He is to be honoured at a dinner on June 21, 2017.
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June 15, 2017
Law society to honour ex-judge Nolan at call to bar ceremony
The Law Society of Upper Canada will present an honorary doctorate of law degree to former judge Mary Jo M. Nolan at its call to the bar ceremony in London, Ont., on June 19.
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June 15, 2017
Dentons partner named to International Court of Arbitration
Aigoul Kenjebayeva, Dentons’ managing partner for Kazakhstan and Central Asia, has been appointed a member of the International Court of Arbitration of the International Chamber of Commerce.
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June 15, 2017
Justice minister announces judicial appointments in B.C., Ontario
Justice Minister Jody Wilson-Raybould on Wednesday announced four appointments to the Supreme Court of British Columbia and one to Ontario’s Superior Court of Justice under the federal government’s new judicial application process.
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June 15, 2017
U.S. Chamber pushes for mandatory disclosure in third party litigation funding
The U.S. Chamber of Commerce and its affiliated Institute for Legal Reform, along with more than two dozen business groups and legal organizations, have submitted a controversial letter calling for the mandatory disclosure of third party litigation funding arrangements (TPLF) in any civil action filed in U.S. federal court.
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June 14, 2017
Mediators becoming first choice of self-represented spouses
Family disputes, and the court process, have changed in recent decades. The Ontario government review of the family court system, which review came out in 2017, by Justice Annemarie Bonkalo, found that more than 57 per cent of Ontario litigants in the family court system in 2014-15 were self-represented, according to government statistics. This is different than in previous decades.
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June 13, 2017
BINDING ARBITRATION - Practice and procedure
Appeal by the plaintiff, Miller Sales & Engineering, from an order staying its action. The plaintiff designed industrial pumping systems for dewatering mines. The defendant manufactured pumps. In 2003, the parties entered into a distributor agreement pursuant to which the defendant agreed to supply various products for distribution by the plaintiff. In 2006, the plaintiff entered into an agreement with another party under which it was to design and supply a dewatering system to be used in a mining operation. In accordance with the distributor agreement, the plaintiff purchased from the defendant a specially designed series of 12 pumps. In 2009, the other party raised concerns regarding the dewatering system, particularly with the design and performance of the pumps. The other party sued the plaintiff, who defended and third-partied the defendant. The plaintiff and the other party settled and the other party assigned its interest in any cause of action to the plaintiff. The claim was then amended. The defendant applied to dismiss or stay the claim on the grounds that the distributor agreement contained an arbitration clause that governed all disputes. The plaintiff argued that the dispute was an assigned claim between the other party and the defendant and therefore the arbitration clause did not apply. The chambers judge found that the parties were bound to arbitrate by virtue of a clause in the distribution agreement. As a result, he stayed the action. The plaintiff appealed, arguing that the chambers judge failed to give legal effect to the settlement agreement and the assignment, which led him to erroneously conclude that the litigation flowed directly from a dispute between the parties and therefore fell under the arbitration clause.
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June 07, 2017
Dentons appoints Kubina as Slovakia managing partner
Dentons has announced the appointment of Peter Kubina as Slovakia managing partner.