Posted Apr 11, 2023, 9:48 PM
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Join Date: Jul 2001
Location: Vancouver
Posts: 41,407
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Quote:
1550 Alberni Limited Partnership v. Northwest Community Enterprises Ltd.
ARBITRATION — Award — Review • Parties proceeding to final offer arbitration over dispute as to payment due to respondent for services, and arbitrator accepting respondent’s offer resulting in award to it for $175,000 plus legal fees — Judge below finding no error of law by arbitrator, and dismissing application for leave to appeal — Court of Appeal finding no error by chambers judge in concluding that arbitrator did not make an error of law — No error or question of law alone arose from arbitrator’s reasons — Appeal dismissed.
Under the parties’ August 2015 magazine production agreement the respondent Northwest was to provide a promotional magazine for the appellant Alberni’s business, for a fee of $150,000 for a 144-page magazine plus an additional $12,000 for every additional eight pages plus budgeted third-party expenses. Any disputes were to be resolved by final offer arbitration. In March 2016, Alberni issued a change order that included costs for 34 stories of four types for a total of $288,636. In July Alberni informed Northwest that it no longer wanted the 300-page version, and had decided to proceed with a 150-page magazine. In January 2017, it approved the first issue of the magazine, which contained 206 pages of content and 20 pages of advertisements. It paid Northwest $690,328 for the production of the magazine made up of the $150,000 production fee and third-party expenses. It refused to pay an additional publisher fee for the extra pages on the basis that it had overpaid by $387,610 in respect of third-party expenses. The parties went to arbitration over Northwest’s claim for additional compensation. After the oral hearing, the parties delivered their final offers to the arbitrator under seal. The arbitrator found that the respondent was not overpaid. He determined that the parties agreed to modify the agreement to address production costs using the fixed-price model as contemplated in the change order, and that the respondent then no longer had any obligation to provide evidence to support the production costs incurred for each story. The arbitrator accepted the respondent’s final offer, and ordered the appellant to pay it $175,000 as compensation for the additional pages, and to reimburse it for its arbitration expenses and legal fees. The court below dismissed Alberni’s application to set aside the award, and granted leave to the respondent pursuant to s. 29(1) of the Arbitration Act to enforce the award in the amount of $340,000, comprising damages of $175,000 and $165,000 in legal fees and disbursements. Alberni appealed, arguing that the chambers judge erred in failing to: properly apply the test for leave to appeal; identify the questions raised by it as questions of law; and review the evidence that was before the arbitrator. Held, appeal dismissed. The chambers judge correctly concluded that there was no question of law from which leave to appeal could be granted. There was no question of law arising from the interpretation of the parties’ agreement. There was ample evidence to support the conclusion that the parties intended to change the agreement in order to compensate Northwest for the additional work it performed at the behest of Alberni. The structure of the change order, with the sliding price on a per story basis, supported that the parties agreed to move to a fixed-price model. The parties chose the arbitrator to determine the issues in their case, which were primarily issues of fact. The arbitrator considered and weighed the evidence and interpreted the documents. There was no error or question of law alone arising from his reasons. There was no need to address the additional grounds of appeal, as they all stood or fell on the primary gatekeeping decision of the chambers judge.
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https://www.bccourts.ca/jdb-txt/ca/23/01/2023BCCA0141.htm
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