Eric van Eyken

Optiva Inc. appealed a Superior Court decision that refused to set aside an arbitration award and denied leave to appeal.

The arbitration award found Optiva breached a contract with Tbaytel and awarded damages.

The Court of Appeal addressed whether the arbitrator had jurisdiction to proceed by summary judgment, whether Optiva's challenge to this ruling was time-barred under s. 17(8) of the Arbitration Act, 1991, and whether the arbitrator based his interpretation of a limitation of liability clause on a legal theory not advanced by the parties.

The Court dismissed the appeal, finding the arbitrator had broad procedural powers, the s. 17(8) time limit did not apply to procedural rulings, and no new legal theory was introduced.

Tbaytel, the moving party, sought to strike an affidavit filed by Optiva Inc., the responding party, in connection with Optiva's pending motion for leave to appeal an arbitration award.

The affidavit, from J. Brian Casey, aimed to provide factual information regarding the public importance of issues raised in the leave to appeal motion, specifically concerning the availability of summary judgment in arbitration without consent and the arbitrator's use of case law.

The court partially granted the motion, striking parts of the affidavit that expressed opinions on the legal importance of issues or buttressed attacks on the correctness of prior decisions, while allowing factual descriptions of common arbitration practices to remain.

The applicant sought to set aside an arbitral award or, alternatively, leave to appeal the award.

The arbitrator had granted summary judgment in favour of the respondent, finding the applicant breached a software services agreement.

The applicant argued the arbitrator lacked jurisdiction to proceed by summary judgment without consent, decided issues beyond the scope of the motion, and relied on independent legal research.

The court dismissed the application, finding the jurisdictional challenge was out of time and, in any event, the arbitrator had the authority to determine the procedure, including proceeding by summary judgment.

The court also found the arbitrator did not exceed the scope of the motion or improperly rely on independent research.

Leave to appeal was denied as the interpretation of the limitation of liability clause was a question of mixed fact and law.