A recent Alberta Court of Queen's Bench decision in
ENMAX Energy Corporation v. TransAlta Generation
Partnership addresses long-standing legal principles such as
stare decisis and res judicata in the context of
arbitration proceedings. In doing so, the court highlights
some of the differences between arbitration and court proceedings.
The decision is of particular interest to those parties seeking
assistance from the court with respect to questions of law during
an extant arbitration in circumstances where the contract allows a
party to do so.
In the late 1990s, the Alberta government made amendments to the
Electric Utilities Act in order to fully deregulate the
Alberta electricity generation market. As part of that
deregulation, power purchase arrangements (PPAs) were enacted as an
Alberta regulation and drafted as if they were contracts entered
into freely between the owner of the applicable generating units
and the buyer of the PPA. TransAlta Corporation owns and operates
the Keephills Generation Facility and is obligated under the
Keephills PPA to, among other things, provide generation services
up to the committed capacity to ENMAX Corporation. TransAlta
receives a rate of return in the form of payments for that
committed capacity while ENMAX has, correspondingly, the exclusive
right to make offers of electricity into the Alberta power
As explained in the decision, ENMAX and TransAlta were parties
to a prior arbitration and resulting award that occurred in 2010.
In 2013, a new dispute arose between ENMAX and TransAlta, and
TransAlta took the position that one of the discrete findings made
by the arbitral panel in the prior arbitration (Discrete Finding)
somehow "estopped" ENMAX from taking certain positions in
the current arbitration.
The PPAs expressly provide that during an extant arbitration
either party may refer a question of law to the court.
ENMAX applied to the court to have it decide three questions of
law. In response, TransAlta contended that the three questions
submitted were questions of fact, or questions of mixed law and
fact, and not questions of law subject to determination by the
Justice M.D. Gates ruled in favour of ENMAX that all of the
questions posed were questions of law. In doing so, Justice Gates
engaged in a detailed analysis of the law regarding the
jurisdiction of the court to consider such issues. Relying upon,
among other cases, the decision of Chief Justice N.C. Wittmann in
Alberta Medical Association v. Alberta (Minister of Health and
Wellness), Justice Gates held that the court can determine
questions of law that only require a cursory review of the
evidence. The court confirmed that a past arbitral award is not
binding precedent or authority for future arbitrations, and
determined that the principle of stare decisis does not apply to
arbitrations. In addition, the court, citing the Supreme Court of
Canada's decision in Canada Safeway Ltd. v. Manitoba Food
and Commercial Workers Union, Local 832, confirmed that
res judicata does not apply to private arbitrations
particularly, as here, where the issues and facts are not the same
between the arbitral proceedings.
The court also held that prior arbitral decisions are
confidential, however, acknowledged there may be cases where
disclosure is necessary to ensure a fair proceeding. As a result,
the court concluded that the extent to which confidentiality may be
overridden in favour of disclosure was an issue for determination
by the arbitral panel on a document by document basis.
While TransAlta has appealed the decision, it remains an
interesting case demonstrating the interplay between litigation and
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