Canada, Court of Appeal for British Columbia
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Canada / 23 May 2018 / Canada, Court of Appeal for British Columbia / Peipei Li v. Luhua Rao / CA45061
Country Canada Court Canada, Court of Appeal for British Columbia Date 23 May 2018 Parties Peipei Li v. Luhua Rao Case number CA45061 Source 2018 BCCA 244 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4971&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 09 November 2016 Parties Bruce Edwin McMillan v. Milena Maria McMillan Case number CA43329 Source 2016 BCCA 441 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5421&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 02 June 2014 Parties Sociedade-de-fomento Industrial Private Limited v. Pakistan Steel Mills Corporation (Private) Limited Case number CA041130 Applicable NYC Provisions I | III | V Source 2014 BCCA 205 | online: CanLII
reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3657&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 13 March 2009 Parties MacKinnon and Parsons v. National Money Mart Company Applicable NYC Provisions II | II(3) Source 2009 BCCA 103 | online: CanLII
Languages English Summary Kurt MacKinnon (“MacKinnon”) entered into multiple “Fast Cash Advance” loan agreements with National Money Mart Company (“Money Mart”), each containing a clause referring all disputes to arbitration in accordance with the British Columbia Commercial Arbitration Act. MacKinnon, and others who received similar loans, commenced an action against Money Mart alleging that the cheque cashing fees applied by Money Mart upon repayment of the loans constituted illegal interest and were prohibited by the Criminal Code. Money Mart requested that the dispute be referred to arbitration but MacKinnon refused. Two years after the initiation of court proceedings by MacKinnon, Louise Parsons (“Parsons”) commenced a similar proceding against Money Mart, and the two actions were merged. In 2004, a case management judge ordered the consolidated action be certified as a class action proceeding and thereby dismissed Money Mart’s motions to stay the action in favour of arbitration. These orders were appealed by Money Mart in the same year. The British Columbia Court of Appeal upheld the case management judge’s ruling in its decision (“MacKinnon CA”). Money Mart then applied to the Court of Appeal to overturn MacKinnon CA, arguing that the 2007 Quebec rulings of the Supreme Court of Canada in Dell Computer Corp. v. Union des consommateurs (“Dell”) and Rogers Wireless v. Muroff (“Rogers”) had changed the law by ruling that a class action is a procedural vehicle that does not modify the substantive rights created by an arbitration clause. The Court of Appeal held that the rulings in Dell and Rogers, which involved class action proceedings in Quebec, should both apply in British Columbia. It noted that the international and domestic arbitration legislation of both Quebec and British Columbia were based on the NYC and the UNCITRAL Model Law on International Commercial Arbitration (the UNCITRAL “Model Law”) and were therefore not materially different from each other. For example, in Dell the Supreme Court observed that Article 940(1) of the Quebec Code of Civil Procedure “incorporated the essence” of Article II(3) NYC and that all six of the arbitration provisions in the Quebec Code of Civil Procedure could be traced to either the NYC or the UNCITRAL Model Law. They were therefore to be interpreted in a manner consistent with both. In British Columbia, the Foreign Arbitral Awards Act also adopts the NYC in full as a schedule, and Art. 15(2) of the Act closely mirrors the wording of Article II(3) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=900&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 13 March 2009 Parties Michelle Seidel v. Telus Communications Inc. Case number CA036299 Source 2009 BCCA 104 | online: CanLII
Languages English Summary Michelle Seidel entered into a written cellular service contract with TELUS Communications, Inc. (“TELUS”), a cellular phone provider. The standard contract form contained a mediation and arbitration clause that included a waiver of any right to commence or participate in a class action suit against TELUS. Seidel initiated a claim against TELUS in the British Columbia Supreme Court in 2005 under the Business Practices and Consumer Protection Act (“BPCPA”). When she sought to have her claim certified as a class action, TELUS applied for a stay of all proceedings on the basis of the arbitration clause. The trial judge found that TELUS’ application was premature because the certification application had not been decided, and denied the stay. TELUS appealed the decision. TELUS argued that the case followed by the British Columbia Supreme Court, the 2004 British Columbia Court of Appeal decision MacKinnon v. Instaloans Financial Solution Centres (“MacKinnon CA”), had been overruled by the 2007 Supreme Court of Canada decisions Dell Computer Corp. v. Union des consommateurs (“Dell”) and Rogers Wireless Inc. v. Muroff, which both ruled that a class action is a procedural vehicle that does not modify the substantive rights created by an arbitration clause. The British Columbia Court of Appeal allowed the appeal and stayed Seidel’s action. It held that Dell and Rogers had superseded MacKinnon CA, even though those cases dealt with arbitration clauses and class action proceedings under Quebec law. The Court of Appeal held that the arbitration and class action legislations of both provinces were broadly similar. It noted that one of the few differences between the two arbitration laws is that, unlike Quebec law, the British Columbia Commercial Arbitration Act is not expressly modelled on the NYC. reversed by : reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=899&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 08 April 2005 Parties Pan Liberty Navigation Co. Ltd. and Blue Arctic Shipping Co. Ltd. v. World Link (H.K.) Resources Limited Case number CA032234 Source 2005 BCCA 206 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5401&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 04 October 2004 Parties Powerex Corp. v. Alcan Inc. Case number CA32159 Applicable NYC Provisions II | II(3) Source 2004 BCCA 504 | online: CanLII
Languages English Summary Powerex Corp. ("Powerex") and Alcan Inc. ("Alcan") concluded a contract for the supply of power. Although Alcan contracted with a subcontractor, it remained fully liable for the performance of the contract, limited to an amount of $100,000,000. When the subcontractor went bankrupt and Alcan was no longer able to perform its duties under the contract, Powerex commenced arbitration in Oregon, U.S., against Alcan and was awarded the maximum liability amount of $100,000,000. Alcan started annulment proceedings with a United States magistrate, then a Federal District Court judge in Oregon, and eventually at the United States Court of Appeals for the Ninth Circuit. At the same time, Powerex sought enforcement of the award in Canada before the Supreme Court of British Columbia. Upon an application by Alcan, the Supreme Court of British Columbia suspended the enforcement proceedings as long as the annulment proceedings were pending with the U.S. magistrate and the Federal District Court judge. Upon a further application by Alcan, the Supreme Court of British Columbia decided to stay the enforcement proceedings while annulment proceedings were pending in the US Court of Appeals for the Ninth Circuit. The Supreme Court of British Columbia held that Alcan nonetheless had to make a security payment in the amount of $100,000,000, and that Powerex had the right to make use of this money as long as they provided security for the amount taken out of this trust. Alcan appealed this ruling to the British Columbia Court of Appeal, contending that the Supreme Court of British Columbia had exceeded its competence rooted in Article VI of the Foreign Arbitral Awards Act (which directly incorporates and whose wording is equivalent to Article VI NYC). The British Columbia Court of Appeal granted Alcan leave to appeal the part of the Supreme Court suspension order that allowed Powerex to receive payment of the award and spend this money in exchange for posting security for its repayment. In the Court of Appeal’s opinion, the appeal raised a question of general importance because the Supreme Court’s decision was the first decision interpreting these provisions implementing the NYC in British Columbia. The Court of Appeal considered that the Supreme Court took an unprecedentedly liberal approach in interpreting the wording of Article VI NYC, and this would have “mark[ed] a departure from international jurisprudence in a field where order and predictability are desirable”. The British Columbia Court of Appeal, however, denied Alcan's request to stay execution on the Supreme Court's order on the grounds that it had the authority to order that a security payment be made. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=800&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 25 February 2004 Parties Eddie Javor v. Luke Francoeur Case number CA030720 Source 2004 BCCA 134 | online: CanLII
Languages English affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5925&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 04 July 1995 Parties The City of Prince George v. A.L. Sims & Sons Ltd. & McElhanney Engineering Services Ltd. Applicable NYC Provisions II | II(3) Source online: CanLII
Languages English Summary A.L. Sims (“Sims”) entered into a construction contract with The City of Prince George containing an arbitration clause. The City of Prince George nominated McElhanney Engineering Services Ltd. (“McElhanney”) as a consultant to manage the contract, pursuant to contract that did not contain an arbitration clause. The construction was delayed, and The City of Prince George sued both Sims and McElhanney for breach of contract and damages. Sims submitted a motion to stay the action in favour of arbitration. The first instance court found that the proceeding should not be stayed, ruling that (i) the arbitration clause was inoperative because there were multiple parties and interrelated motions which were not all subject to an arbitration clause, and (ii) the court could exercise residual statutory jurisdiction to refuse the stay where there was a risk of multiple proceedings and inconsistent results. Sims appealed. The Court of Appeal for British Columbia reversed the first instance decision and referred the matter to arbitration. It cited extensive case law and doctrine from Canada and England for the proposition that the mere judicial inconvenience of adjudicating multiple claims with multiple parties would not render the arbitration clause “inoperative” within the meaning of Article II(3) NYC, and did not bar parties from invoking an arbitration clause that binds them. The Court of Appeal also rejected the lower court’s exercise of its residual jurisdiction. It considered that a court would have residual discretion to refuse a stay only when a party clearly established that it was not privy to an arbitration agreement. It reasoned that in the present case, it was arguable that McElhanney was indeed a party to the arbitration agreement, and therefore the stay should be granted and the issue should be resolved in the arbitration. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=551&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 16 December 1985 Parties Dillingham Canada International Ltd. v. Mana Construction Case number CA003461 Source 69 BCLR 133 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5382&opac_view=6 Attachment (1)
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