The recent decision of the Supreme Court of Canada (“SCC”) in Sattva Capital Corporation v. Creston Moly Corporation is the most detailed and thorough discussion relating to appeals of commercial arbitration decisions in many years. The timing is important as more and more commercial matters are being dealt with, at first instance, by way of arbitration. The result of the decision is that the first instance will more often be the last instance. Leave to appeal commercial arbitration decisions, traditionally hard to come by, will be even more rarely granted in the wake of the SCC’s reasoning.
The underlying dispute dealt with a disagreement between the parties over the amount of a finder’s fee to which Sattva Capital Corporation was entitled to following its introduction of Creston Moly Corporation to an opportunity to acquire a molybdenum mining property in Mexico.
FACTS
On January 12, 2007, the parties entered into a written agreement that required Creston to pay Sattva a finder’s fee. Since Creston was publicly traded on the TSXVenture exchange, the finder’s fee required TSXV approval. The Agreement provided that Sattva was to be paid a finder’s fee equal to the maximum amount that could be paid pursuant to the TSXV Policy Manual. The maximum amount in this case was US$1.5 million.
The SCC reasons accurately capture the dispute in this way:
“The issues in this case arise out of the obligation of Creston Moly Corporation (formerly Georgia Ventures Inc.) to pay a finder’s fee to Sattva Capital Corporation (formerly Sattva Capital Inc.). The parties agree that Sattva is entitled to a finder’s fee of US$1.5 million and is entitled to be paid this fee in shares of Creston, cash or a combination thereof. They disagree on which date should be used to price the Creston shares and therefore the number of shares to which Sattva is entitled”.
Since the share price for Creston had increased following the announcement of the purchase of the mining property there was a serious disagreement between the parties. Sattva asserted that it was entitled to roughly 11 Million shares priced at $0.15. Creston countered that it was entitled to issue roughly 2.4 Million shares priced at $0.70.
Both the Agreement and the finder’s fee had to be approved by the TSXV. Creston was responsible for securing this approval. The arbitrator found that it was either an implied or an express term of the Agreement that Creston would use its best efforts to secure the TSXV’s approval and that Creston did not apply its best efforts to this end.
The finder’s fee would be paid in shares unless Sattva made an election otherwise. The arbitrator found that Sattva never made such an election. Despite this, Creston represented to the TSXV that the finder’s fee was to be paid in cash. The TSXV conditionally approved a finder’s fee of US$1.5 million to be paid in cash. Sattva first learned that the fee had been approved as a cash payment in early June 2007.
The arbitrator found that Creston “consistently misrepresented or at the very least failed to disclose fully the nature of the obligation it had undertaken to Sattva” and “that in the absence of an election otherwise, Sattva is entitled under that Agreement to have that fee paid in shares at $0.15”.
The arbitrator found that Sattva could have sold its Creston shares after a four-month holding period at between $0.40 and $0.44 per share, netting proceeds of between $4,583,914 and $5,156,934. The arbitrator took the average of those two amounts, which came to $4,870,424, and then assessed damages at 85 percent of that number, which came to $4,139,860, and rounded it to $4,140,000 plus costs.
JUDICIAL HISTORY
This is the tortured history of these proceedings – remember that the purpose of the arbitration was to get a speedy resolution to a commercial dispute.
The arbitrator found in favour of Sattva.
Creston sought leave to appeal the arbitrator’s decision pursuant to s. 31(2) of the Arbitration Act. Leave was denied by the British Columbia Supreme Court (2009 BCSC 1079 (CanLII) (“SC Leave Court”)).
Creston successfully appealed this decision and was granted leave to appeal the arbitrator’s decision by the British Columbia Court of Appeal (2010 BCCA 239, 7 B.C.L.R. (5th) 227 (“CA Leave Court”)).
The British Columbia Supreme Court judge who heard the merits of the appeal (2011 BCSC 597, 84 B.L.R. (4th) 102 (“SC Appeal Court”)) upheld the arbitrator’s award.
Creston appealed that decision to the British Columbia Court of Appeal (2012 BCCA 329, 36 B.C.L.R. (5th) 71 (“CA Appeal Court”)). That court overturned the SC Appeal Court and found in favour of Creston.
Sattva was granted leave to appeal by the SCC.
BCCA – APPEAL COURT
On the hearing of the full appeal, the court made some interesting findings. The CA Appeal Court allowed Creston’s appeal, ordering that the payment of US$1.5 million that had been made by Creston to Sattva on account of the arbitrator’s award constituted payment in full of the finder’s fee. The court reviewed the arbitrator’s decision on a standard of correctness.
The CA Appeal Court found that both it and the SC Appeal Court were bound by the findings made by the CA Leave Court. There were two findings that were binding: (1) it would be anomalous if the Agreement allowed Sattva to receive US$1.5 million if it received its fee in cash, but shares valued at approximately $8 million if Sattva took its fee in shares; and (2) the arbitrator ignored this anomaly and did not address s. 3.1 of the Agreement.
The Court of Appeal found that it was an absurd result to find that Sattva is entitled to an $8 million finder’s fee in light of the fact that the “maximum amount” proviso in the Agreement limits the finder’s fee to US$1.5 million. The court was of the view that the proviso limiting the fee to US$1.5 million “when paid” should be given paramount effect. In its opinion, giving effect to the Market Price definition could not have been the intention of the parties, nor could it have been in accordance with good business sense.
SCC FINDINGS
Appeals from commercial arbitration decisions are narrowly circumscribed under the Arbitration Act. Under s. 31(1), appeals are limited to either questions of law where the parties consent to the appeal or to questions of law where the parties do not consent but where leave to appeal is granted. Section 31(2) of the Arbitration Act sets out the requirements for leave:
(2) In an application for leave under subsection (1) (b), the court may grant leave if it determines that
(a) the importance of the result of the arbitration to the parties justifies the intervention of the court and the determination of the point of law may prevent a miscarriage of justice,
(b) the point of law is of importance to some class or body of persons of which the applicant is a member, or
(c) the point of law is of general or public importance.
Under s. 31 of the Arbitration Act, the issue upon which leave is sought must be a question of law. For the purpose of identifying the appropriate standard of review or, as is the case here, determining whether the requirements for leave to appeal are met, reviewing courts are regularly required to determine whether an issue decided at first instance is a question of law, fact, or mixed fact and law.
Historically, determining the legal rights and obligations of the parties under a written contract was considered a question of law (King v. Operating Engineers Training Institute of Manitoba Inc., 2011 MBCA 80, 270 Man. R. (2d) 63, at para. 20, per Steel J.A.; K. Lewison, The Interpretation of Contracts (5th ed. 2011 & Supp. 2013), at pp. 173-76; and G. R. Hall, Canadian Contractual Interpretation Law (2nd ed. 2012), at pp. 125-26).
The shift away from the historical approach in Canada appears to be based on two developments. The first is the adoption of an approach to contractual interpretation which directs courts to have regard for the surrounding circumstances of the contract — often referred to as the factual matrix — when interpreting a written contract (Hall, at pp. 13, 21-25 and 127; and J. D. McCamus, The Law of Contracts (2nd ed. 2012), at pp. 749-51). The second is the explanation of the difference between questions of law and questions of mixed fact and law provided in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 35, and Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 26 and 31-36.
The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement (see Moore Realty Inc. v. Manitoba Motor League, 2003 MBCA 71, 173 Man. R. (2d) 300, at para. 15, per Hamilton J.A.; see also Hall, at p. 22; and McCamus, at pp. 749-50). As stated by Lord Hoffmann in Investors Compensation Scheme Ltd. v. West Bromwich Building Society, [1998] 1 All E.R. 98 (H.L.):
The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean.
Rothstein J. (for the unanimous court) held:
“With respect for the contrary view, I am of the opinion that the historical approach should be abandoned. Contractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix.
The purpose of the distinction between questions of law and those of mixed fact and law further supports this conclusion. One central purpose of drawing a distinction between questions of law and those of mixed fact and law is to limit the intervention of appellate courts to cases where the results can be expected to have an impact beyond the parties to the particular dispute. It reflects the role of courts of appeal in ensuring the consistency of the law, rather than in providing a new forum for parties to continue their private litigation.”
…
“Nonetheless, it may be possible to identify an extricable question of law from within what was initially characterized as a question of mixed fact and law (Housen, at paras. 31 and 34-35). Legal errors made in the course of contractual interpretation include “the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor” (King, at para. 21). Moreover, there is no question that many other issues in contract law do engage substantive rules of law: the requirements for the formation of the contract, the capacity of the parties, the requirement that certain contracts be evidenced in writing, and so on.
However, courts should be cautious in identifying extricable questions of law in disputes over contractual interpretation. Given the statutory requirement to identify a question of law in a leave application pursuant to s. 31(2) of the Arbitration Act, the applicant for leave and its counsel will seek to frame any alleged errors as questions of law. The legislature has sought to restrict such appeals, however, and courts must be careful to ensure that the proposed ground of appeal has been properly characterized.”
The court then moved on to an analysis of the “surrounding circumstances” which could be considered when engaging in contractual interpretation and held:
“While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 101 B.C.A.C. 62)
The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract (King, at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting”
The Court held that the parol evidence rule does not preclude the admission of evidence relating to the surrounding circumstances when engaging in contractual interpretation. The court stated:
“It is necessary to say a word about consideration of the surrounding circumstances and the parol evidence rule. The parol evidence rule precludes admission of evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing (King, at para. 35; and Hall, at p. 53). To this end, the rule precludes, among other things, evidence of the subjective intentions of the parties (Hall, at pp. 64-65; and Eli Lilly & Co. v. Novopharm Ltd., [1998] 2 S.C.R. 129, at paras. 54-59, per Iacobucci J.). The purpose of the parol evidence rule is primarily to achieve finality and certainty in contractual obligations, and secondarily to hamper a party’s ability to use fabricated or unreliable evidence to attack a written contract (United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at pp. 341-42, per Sopinka J.).
The parol evidence rule does not apply to preclude evidence of the surrounding circumstances. Such evidence is consistent with the objectives of finality and certainty because it is used as an interpretive aid for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of those words. The surrounding circumstances are facts known or facts that reasonably ought to have been known to both parties at or before the date of contracting; therefore, the concern of unreliability does not arise”
This is a critical point because until this decision, the courts did not avail themselves of an interpretive aid without finding that a plain reading, giving the language of the contract its natural meaning, led to an ambiguity. When giving advice to clients on the likely interpretation of a contract, lawyers will need to take care that they include advice to the effect that even if the language of the contract appears clear, the court will still consider other evidence to interpret the terms of the agreement. The court refers to achieving “finality and certainty” in contractual obligations but I suspect that the introduction of extrinsic evidence when interpreting an unambiguous contract will foster neither.
Ultimately, the Court found that the CA – Leave Court erred in granting leave to appeal. The court stated:
With respect, the CA Leave Court erred in finding that the construction of s. 3.1 of the Agreement constituted a question of law. As explained by Justice Armstrong in the SC Appeal Court decision, construing s. 3.1 and taking account of the proviso required relying on the relevant surrounding circumstances, including the sophistication of the parties, the fluctuation in share prices, and the nature of the risk a party assumes when deciding to accept a fee in shares as opposed to cash. Such an exercise raises a question of mixed fact and law. There being no question of law extricable from the mixed fact and law question of how s. 3.1 and the proviso should be interpreted, the CA Leave Court erred in granting leave to appeal.
That finding would have been sufficient to dispose of the appeal and reinstate the arbitrator’s decision; however, the court carried on and, as obiter dicta, made further remarks and findings in relation to the residual discretion and “miscarriage of justice” stages of the leave to appeal analysis.
The court found that in order to rise to the level of a miscarriage of justice for the purposes of s. 31(2)(a) of the AA, an alleged legal error must pertain to a material issue in the dispute which, if decided differently, would affect the result of the case. As a result, a determination of a point of law “may prevent a miscarriage of justice” arises only where the appeal itself has some possibility of succeeding. An appeal with no chance of success will not meet the threshold of “may prevent a miscarriage of justice” because there would be no chance that the outcome of the appeal would cause a change in the final result of the case.
So, that means that the leave court must engage in some analysis of the likelihood that the appeal would be successful. At the leave stage, it is not appropriate to consider the full merits of a case and make a final determination regarding whether an error of law was made. However, some preliminary consideration of the question of law is necessary to determine whether the appeal has the potential to succeed and thus to change the result in the case.
The court found:
“At the leave stage, it is not appropriate to consider the full merits of a case and make a final determination regarding whether an error of law was made. However, some preliminary consideration of the question of law is necessary to determine whether the appeal has the potential to succeed and thus to change the result in the case”
“the appropriate threshold for assessing the legal question at issue under s. 31(2) is whether it has arguable merit. The arguable merit standard is often used to assess, on a preliminary basis, the merits of an appeal at the leave stage (see for example Quick Auto Lease Inc. v. Nordin, 2014 MBCA 32, 303 Man. R. (2d) 262, at para. 5; and R. v. Fedossenko, 2013 ABCA 164 (CanLII), at para. 7). “Arguable merit” is a well-known phrase whose meaning has been expressed in a variety of ways: “a reasonable prospect of success” (Quick Auto Lease, at para. 5; and Enns v. Hansey, 2013 MBCA 23 (CanLII), at para. 2); “some hope of success” and “sufficient merit” (R. v. Hubley, 2009 PECA 21, 289 Nfld. & P.E.I.R. 174, at para. 11); and “credible argument” (R. v. Will, 2013 SKCA 4, 405 Sask. R. 270, at para. 8). In my view, the common thread among the various expressions used to describe arguable merit is that the issue raised by the applicant cannot be dismissed through a preliminary examination of the question of law”
The BC court’s residual discretion to refuse leave to appeal the arbitral award arises from the use of the permissive term “may” in s.31(2) of the Arbitration Act. In other words, even if the appellant has met the criteria for obtaining leave, the court retains a residual discretion to deny leave to appeal in any event. In essence, the permissive term amounts to a privative clause which requires the court to afford some deference to the decisions of arbitrators.
The SCC held:
Furthermore, respect for the forum of arbitration chosen by the parties is a consideration that animates the legislation itself and can be seen in the high threshold to obtain leave under s. 31(2)(a). Recognition that arbitration is often chosen as a means to obtain a fast and final resolution tailor-made for the issues is already reflected in the urgent need for a final answer.
In sum, a non-exhaustive list of discretionary factors to consider in a leave application under s. 31(2)(a) of the AA would include:
• conduct of the parties;
• existence of alternative remedies;
• undue delay; and
• the urgent need for a final answer.
These considerations could, where applicable, be a sound basis for declining leave to appeal an arbitral award even where the statutory criteria of s. 31(2)(a) have been met. However, courts should exercise such discretion with caution”
The court then went on to discuss the standard of review under the Arbitration Act; keeping in mind that the CA – Appeal Court applied a standard of correctness:
“Appellate review of commercial arbitration awards takes place under a tightly defined regime specifically tailored to the objectives of commercial arbitrations and is different from judicial review of a decision of a statutory tribunal.
For example, for the most part, parties engage in arbitration by mutual choice, not by way of a statutory process. Additionally, unlike statutory tribunals, the parties to the arbitration select the number and identity of the arbitrators. These differences mean that the judicial review framework developed in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, and the cases that followed it is not entirely applicable to the commercial arbitration context. For example, the Arbitration Act forbids review of an arbitrator’s factual findings. In the context of commercial arbitration, such a provision is absolute. Under the Dunsmuir judicial review framework, a privative clause does not prevent a court from reviewing a decision, it simply signals deference (Dunsmuir, at para. 31).
Nevertheless, judicial review of administrative tribunal decisions and appeals of arbitration awards are analogous in some respects. Both involve a court reviewing the decision of a non-judicial decision-maker. Additionally, as expertise is a factor in judicial review, it is a factor in commercial arbitrations: where parties choose their own decision-maker, it may be presumed that such decision-makers are chosen either based on their expertise in the area which is the subject of dispute or are otherwise qualified in a manner that is acceptable to the parties.
In the context of commercial arbitration, where appeals are restricted to questions of law, the standard of review will be reasonableness unless the question is one that would attract the correctness standard, such as constitutional questions or questions of law of central importance to the legal system as a whole and outside the adjudicator’s expertise”
Just when you think that the BC CA could not have gotten it more wrong (it shouldn’t have granted leave for several reasons, it found that there had been an “error of law”, it afforded no deference to the arbitrator and, it applied the wrong standard of review), the SCC went on to find that the CA – Appeal Court fell into a further error when it held that both it and the SC – Appeal Court were bound by the findings of fact made by the CA – Leave Court. The SCC held:
“With respect, the CA Appeal Court erred in holding that the CA Leave Court’s comments on the merits of the appeal were binding on it and on the SC Appeal Court. A court considering whether leave should be granted is not adjudicating the merits of the case (Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 88). A leave court decides only whether the matter warrants granting leave, not whether the appeal will be successful (Pacifica Mortgage Investment Corp. v. Laus Holdings Ltd., 2013 BCCA 95, 333 B.C.A.C. 310, at para. 27, leave to appeal refused, [2013] 3 S.C.R. viii). This is true even where the determination of whether to grant leave involves, as in this case, a preliminary consideration of the question of law at issue. A grant of leave cannot bind or limit the powers of the court hearing the actual appeal (Tamil Co-operative Homes Inc. v. Arulappah (2000), 49 O.R. (3d) 566 (C.A.), at para. 32)”
This makes sense because, if the appeal court is bound by the findings of the leave court, then there is not much point in the Respondent appearing at the appeal. The SCC described the problem in these terms:
“The fact that the CA Appeal Court provided its own reasoning as to why it came to the same conclusion as the CA Leave Court does not vitiate the error. Once the CA Appeal Court treated the CA Leave Court’s reasons on the merits as binding, it could hardly have come to any other decision. As counsel for Sattva pointed out, treating the leave decision as binding would render an appeal futile”.
SUMMARY
This decision is going to have wide-ranging implications for not only parties to commercial arbitrations; the decisions of arbitrators will, in most cases, be the final word on the issues. The likelihood of obtaining leave to appeal an arbitrator’s decision, especially on a matter of contractual interpretation is substantially reduced by this decision. Given the broad nature of the decision with respect to contractual interpretation, the impact on contracting parties is also likely to be substantial.
