In this decision, the Saskatchewan Court of Queen's Bench
refused to appoint an arbitrator to resolve a dispute about
overhead charges incurred in the operation of a joint venture.
Over a period of seven years De Beers Canada Inc. (De Beers
Canada) was the operator of a joint venture with Shore Gold. Under
the agreement, De Beers Canada charged the joint venture monthly
for operational expenditures, and was reimbursed for those
expenditures from a joint venture account. After De Beers Canada
left the joint venture, Shore Gold formed the view that, contrary
to the agreement, De Beers Canada profited from receiving 15% for
overhead expenses to the tune of over $2.9 million.
Shore Gold subsequently delivered an arbitration notice pursuant
to the dispute resolution provisions of the joint venture
agreement. The provisions required the parties to agree upon a
suitable arbitrator within 30 days, failing which an arbitrator
would be named by the Court.When the parties failed to reach an
agreement and Shore Gold applied to the Court for assistance, De
Beers Canada applied to have the arbitration notice struck by
arguing, among other things, that arbitration was not the
appropriate procedure and that the issue of financial gain was not
itself arbitrable because, even if De Beers Canada was found to
have gained financially, there was no provision in the joint
venture agreement for the repayment of that gain.
The Court found that De Beers Canada was estopped by its conduct
(which included participating in a search for an arbitrator) from
arguing that arbitration was not the appropriate procedure.
However, the Court ultimately agreed that there was no arbitrable
issue. The joint venture agreement allowed for forward-looking
adjustments to the rate of overhead charges, but it did not require
the operator to pay back any profit, or allow for the recovery of
any loss, arising from the 15% overhead rate. As a matter of law,
there was no dispute between the parties that could be resolved by
The Court struck the arbitration notice and dismissed Shore
Gold's application for the appointment of an arbitrator.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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