Appleton & Associates v. Branch MacMaster LLP

Appleton & Associates v. Branch MacMaster LLP

The court found an arbitral error only in the arbitrator's procedure in awarding the emergency measures costs summarily without permitting adequate testing of the claimed quantum, but rejected all other alleged errors (admissibility/weight of the Arvay affidavit and counterclaim filing irregularities). The...

Source-derived case information.

Citation
2019 BCSC 1733
Parties
Petitioner/respondent: Appleton & Associates; Respondent/petitioner: Branch MacMaster LLP
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
10 October 2019
Procedural Posture
Arbitration Enforcement and Setting Aside (arbitration Act Petitions) / Final Judicial Determination on Petitions Under Ss.29 and 30 (reasons for Judgment)
Outcome
Appleton's petition to set aside the award under s.30 refused; Branch MacMaster LLP's petition to enforce the award under s.29 allowed; no special costs awarded; BML entitled to tariff costs at scale B.
Legal Topics
Setting Aside Arbitration Award, Enforcement of Arbitration Award, Natural Justice, Assessment of Costs, Witness Admissibility and Weight, ICDR Rules and Procedure, Filing Requirements for Counterclaims
Source Language
english
Arbitration Law Civil Procedure Costs Law Contract Law Administrative Law Setting Aside Arbitration Award Enforcement of Arbitration Award Natural Justice +4 more

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Parties

Appleton & Associates

Petitioner/respondent

Branch MacMaster LLP

Respondent/petitioner

Procedural Posture

Arbitration Enforcement and Setting Aside (arbitration Act Petitions) / Final Judicial Determination on Petitions Under Ss.29 and 30 (reasons for Judgment)

Legal Issues

  1. 1 Whether the arbitrator failed to observe rules of natural justice in summarily assessing costs of the emergency measures motion
  2. 2 Whether the arbitrator erred by relying on an affidavit (Arvay) without cross-examination and thereby breached natural justice
  3. 3 Whether the arbitrator exceeded her powers or breached natural justice by deciding a counterclaim alleged to have been filed late or with a late filing fee

Ratio Decidendi

The court found an arbitral error only in the arbitrator's procedure in awarding the emergency measures costs summarily without permitting adequate testing of the claimed quantum, but rejected all other alleged errors (admissibility/weight of the Arvay affidavit and counterclaim filing irregularities). The identified error was insufficient to justify setting aside any part of the award because the main-arbitration costs award (untouched) would subsume any reallocation and Appleton had not challenged reasonableness on other grounds; accordingly Appleton's s.30 petition was refused and BML's s.29 petition to enforce the award was allowed.

Court Disposition

Appleton's petition to set aside the award under s.30 refused; Branch MacMaster LLP's petition to enforce the award under s.29 allowed; no special costs awarded; BML entitled to tariff costs at scale B.

Orders

  • Appleton & Associates petition to set aside the arbitral award (Vancouver S192266) dismissed
  • Branch MacMaster LLP petition to enforce the arbitral award (Vancouver S192341) granted (leave to enter judgment in terms of the award)