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Arbitration - General. Peace River Hydro Partners v. Petrowest Corp.
In Peace River Hydro Partners v. Petrowest Corp. (SCC, 2022) the Supreme Court of Canada considered the relationship between insolvency and arbitration. The case is essential reading for anyone involved with the two in the same case, especially regarding which proceeding governs (ie. stays) [paras 59-90, 107-110].
. Peace River Hydro Partners v. Petrowest Corp.
In Peace River Hydro Partners v. Petrowest Corp. (SCC, 2022) the Supreme Court of Canada comments on the significant value of arbitration to commercial parties, and the current status of arbitration in the Canadian world:[46] Recently, two trends have thrown this tension into sharp relief. First, arbitration has become an increasingly popular mechanism for resolving commercial disputes, both in Canada and abroad (Wellman, at para. 54; Seidel, at para. 23). Today, parties and counsel alike recognize the potential strategic and tactical advantages of arbitration as compared to traditional litigation. These may include privacy and confidentiality, efficiency and timeliness, relaxed rules of evidence, freedom to determine procedural rules and select decision makers with relevant expertise, and cross‑border enforceability of awards (J. B. Casey, Arbitration Law of Canada: Practice and Procedure (3rd ed. 2017), at ch. 1.6).
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(1) Dispute Resolution by Arbitration
[49] The modern view expressed in Canadian arbitration legislation is that parties should be held to their contractual agreements to arbitrate. This gives effect to the concept of “party autonomy”, according to which parties are free to “charter a private tribunal” to resolve their disputes (Wellman, at para. 52, citing Astoria Medical Group v. Health Insurance Plan of Greater New York, 182 N.E.2d 85 (N.Y. 1962), at p. 87; M. Pavlović and A. Daimsis, “Arbitration”, in J. C. Kleefeld et al., eds., Dispute Resolution: Readings and Case Studies (4th ed. 2016), 483, at p. 485). Party autonomy is closely related to freedom of contract (Hofer v. Hofer, 1970 CanLII 161 (SCC), [1970] S.C.R. 958, at p. 963). Modern arbitration legislation is premised on these principles, which inform the policy choices embodied in provincial arbitration statutes like the Arbitration Act (Wellman, at para. 52).
[50] Party autonomy and freedom of contract go hand in hand with the principle of limited court intervention in arbitral proceedings. This latter principle is “fundamental” to modern arbitration law and “finds expression throughout modern Canadian arbitration legislation” (Wellman, at paras. 52‑55; McEwan and Herbst, at § 10:2; Casey, at ch. 7.1). For instance, s. 4(a) of British Columbia’s new Arbitration Act, S.B.C. 2020, c. 2, provides that “[i]n matters governed by this Act, a court must not intervene unless so provided in this Act”. Similar expressions of principle are found in provincial arbitration legislation across the country. It follows that, generally speaking, judicial intervention in commercial disputes governed by a valid arbitration clause should be the exception, not the rule. . Optiva Inc. v. Tbaytel
In Optiva Inc. v. Tbaytel (Ont CA, 2022) the Court of Appeal comments generally on commercial arbitration:[29] Optiva and Tbaytel, both sophisticated commercial actors, agreed that any disputes arising out of the contract would be resolved by private arbitration. When a dispute did arise, Optiva and Tbaytel, in accordance with the agreement and with the assistance of counsel, prepared an arbitration agreement and entered into arbitration on the terms of that agreement. Pursuant to the agreement, the parties chose their arbitrator. The parties’ fashioning of their own rules governing the conduct of the arbitration and their selection of a mutually agreeable arbitrator implies a very limited role for judicial oversight of the conduct or outcome of that arbitration: Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, at para. 26.
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[34] Generally speaking, arbitrations must be conducted in accordance with the applicable terms of the arbitration agreement entered into by the parties, any rules or procedures applicable to the particular arbitration, and any relevant statutory provisions. The procedures must also treat the parties fairly and equally: Desputeaux v. Éditions Chouette (1987) inc., 2003 SCC 17, [2003] 1 S.C.R. 178, at para. 70; Travis Coal Restructured Holdings LLC v. Essar Global Fund Ltd., [2014] EWHC 2510 (Comm), [2014] All E.R. (D) 240 (Q.B.), at para. 44. . Optiva Inc. v. Tbaytel
In Optiva Inc. v. Tbaytel (Ont CA, 2022) the Court of Appeal comments on the effect of arbitration and court findings with respect to each other:[38] ... It is hardly surprising that the arbitrator, in exercising his power to determine appropriate procedures, would look to the procedures routinely used in civil proceedings under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The advantages flowing from a properly invoked summary judgment process have equal application in the arbitration and the civil trial context: see Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 27.
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