ABQB says my arbitration award renders the issue of set-off res judicata. The court has discretion not to find or enforce res judicata flowing from an arbitral decision, but “it would not be appropriate to do so here.” The party arguing for set-off in court argued against set-off in the arbitration and prevailed. Permitting a contrary position in court would offend the doctrine of estoppel by approbation and reprobation.
The court also decided that a partnership agreement clause saying it is to be governed by Alberta law and that the parties attorn to the exclusive jurisdiction of the Alberta courts does not give the court jurisdiction concurrent with the arbitrator to deal with disputes arising out the agreement. “It simply contains a choice of law provision and selects Alberta as the location of the court in which matters are to be brought that are properly within the jurisdiction of the court, as opposed to that of the arbitrator.” See: Armeneau v Frank, 2012 ABQB 778
[Reader Comment 2013/03/01: How often does something like this happen in Arbitration?]
[Reply 2013/03/01: You will see that the court has discretion as to whether to to enforce res judicata arising from an arbitration decision. At paragraph [14] of its decision, the court refers to Hnatiuk v Assured Developments Ltd, 2012 ABCA 97 (CanLII), 2012 ABCA 97, 522 AR 31 at paragraph 37 as authority for this statement. I have not researched the issue.]
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