A recent decision of the Alberta Court of King s Bench in Orica Canada Inc v ARVOS GmbH, 2024 ABKB 97, has attracted considerable attention among members of the arbitration bar. In it, the Court of King s Bench, articulated important exceptions to two established principles that, to date, have largely been taken for granted among arbitration practitioners
Bennett Jones has assisted Varme Energy Inc. in successfully negotiating a first of its kind waste-to-energy agreement with the City of Edmonton. The agreement sees the City diverting approximately 150,000 tonnes of residential garbage per year to a privately funded and operated waste-to-energy facility located 40 kilometers northeast of Edmonton. Once operational, the facility will be Canada s first industrial-scale, waste-to-energy facility with carbon capture.
In the recent Ontario Court of Appeal decision in Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited, 2023 ONCA 260, the Court addressed the question of what standard of proof a party would need to meet in order to establish that an agreement to arbitrate exists, such that a stay of a court proceeding should be granted and the dispute referred to arbitration under Section 9 of Ontario s International Commercial Arbitration Act. The Court found that the applicable standard of proof is that of arguable case, which is lower than the ordinary balance of probabilities standard, consistent with the prevailing view in Ontario that deference should be given to agreements to arbitrate and the jurisdiction of arbitral tribunals to determine their own jurisdiction.
In its recent decision, Kingsgate Property Ltd. v Vancouver School District No. 39, 2023 BCSC 560, the Supreme Court of British Columbia considered, among other things, whether an arbitral tribunal s interpretation of a prior arbitration award that was rendered under the same agreement to identify possible issue estoppel was a question of law that was appealable to the Supreme Court of British Columbia pursuant to section 31 of the Arbitration Act, RSBC 1996, c 55. The Court found that it was a question of law, and granted leave to appeal.