Category Archives: Arbitration

The Summary Judgment Exception to the Stay of Proceedings in Favour of Arbitration

Case considered: Balancing Pool v. TransAlta Utilities Corporation, 2009 ABQB 631

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A recent decision by Chief Justice Neil C. Wittmann resolves two outstanding issues with respect to the summary judgment exception to stays of court proceedings that is found in section 7(2)(e) of the Arbitration Act, R.S.A. 2000, c. A-43. The first question was whether the exception was available in the absence of a motion for summary judgment contemporaneous with the stay application. The second was that of the appropriate test for determining if the dispute was a proper one for summary judgment. The Chief Justice’s answers to these two issues nicely balances public policy in favour of enforcing arbitration agreements with public policy in favour of resolving disputes in the most just and expeditious manner possible. His answer to the first question increases the circumstances under which the summary judgment exception can be considered by a court. His answer to the second proposes a tough standard to meet, thus narrowing the basis on which a court should exercise its discretion to refuse a stay.

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Staying Arbitration Proceedings under Section 7(5) of the Arbitration Act

Case considered: Lamb v. AlanRidge Homes Ltd., 2009 ABCA 343

 PDF version:  Staying Arbitration Proceedings under Section 7(5) of the Arbitration Act

Lamb v. AlanRidge Homes Ltd. is an interesting case, in part because the Alberta Court of Appeal calls upon the Alberta legislature to review and amend section 7 of the Arbitration Act, R.S.A. 2000, c. A-43, a section the court criticizes (at para. 16) as “far from a model of clarity.” Calls for legislative action by the courts are not that common. The case is also interesting because section 7 is perhaps the provision most often used by the courts, as it is the provision that requires a court to stay a court action when asked to do so by a party to an agreement to arbitrate.It is, however, a section rarely considered by the Court of Appeal because subsection 7(6) provides that there is no appeal from an order of the Court of Queens’ Bench staying an action or refusing a stay under section 7. The case is also interesting because Alberta’s Arbitration Act is based upon the Uniform Arbitration Act which was prepared by the Uniform Law Conference of Canada in 1989, as were the arbitration statutes in six other provinces. Section 7 was carefully drafted and debated by the Commissioners. It seems somewhat odd to think that, twenty years later, there are basic problems with interpreting and applying that provision.

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Arbitration is not Administrative Law

Cases Considered:  Jamani v. Subway Franchise Systems of Canada Ltd., 2008 ABQB 438

PDF Version:  Arbitration is not Administrative Law

The reasons that arbitration is a legitimate way to resolve a dispute are not the same reasons that administrative decision-making is legitimate. Arbitration is normally a process voluntarily chosen by parties who want a dispute decided by an impartial judge of their own choosing, whose decision on the merits of the dispute will be final and binding. It is a private alternative to the courts (albeit governed by legislation and even mandated by legislation in some cases). The justification for legislative and judicial deference to arbitration rests on the principle of freedom of contract and the norm of party autonomy. Administrative law, on the other hand, is public law. Administrative agencies and tribunals are created by federal and provincial legislative bodies and given tasks to do on behalf of the citizens of the country or province. Administrative decision-makers do not just resolve disputes between parties; they are also responsible for fulfilling the goals of their agency. Judicial review of administrative decisions exists, in part, to control the exercise of power by the executive and administrative branches of the state. Nevertheless, courts have recently been conflating the two areas of law and the decision in Jamani v. Subway Franchise Systems of Canada Ltd. is an example of this trend.

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International Commercial Arbitration: Too Costly Private Justice?

Cases Considered: Resin Systems Inc. v. Industrial Service & Machine Inc., 2008 ABCA 104

PDF Version: International Commercial Arbitration: Too Costly Private Justice?

The Court of Appeal’s Memorandum of Judgment in Resin Systems Inc. v. Industrial Service & Machine Inc. offers a rare, albeit small, glimpse into the arena of international commercial arbitration. It tells us something about the cost of this type of private justice; one of the major differences between courts and arbitration is that contractual arbitrators are not paid for by taxpayers, but are privately paid for. The judgment also illustrates an unusual lack of deference to arbitration on the part of the Court of Appeal and a lack of faith in an arbitrator’s ability to control the fairness and efficiency of arbitration proceedings through the allocation of costs.

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Leave to Appeal Arbitration Awards and the Addition of the Public Interest

Cases Considered: Lion’s Gate Homes Ltd. v. Shand, 2008 ABQB 15

PDF Version: Leave to Appeal Arbitration Awards and the Addition of the Public Interest

This brief decision by Mr. Justice D.K. Miller provides an opportunity to look at how the courts in Alberta have interpreted subsection 44(2) of the Arbitration Act, R.S.A. 2000, c. A-43. This is the provision that usually governs the ability of the parties to appeal an arbitrator’s award. Although subsection 44(2) does not, on the face of it, require that there be any public interest in the parties’ dispute or the award resolving that dispute or an appeal from the award, judges of the Court of Queen’s Bench of Alberta have fairly consistently read in that extra element.

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