Hybrid Med-Arb Process

In Pinder v Woodrow, 2015 ABQB 750 the Alberta Court of Queen’s Bench upheld an arbitration award from matrimonial proceedings settled during an arbitration. The arbitrator signed the settlement agreement, but appears not to have recorded it in the form of an award as required by section 36 of the Arbitration Act. Following an application by Ms Woodrow, he issued a written decision in which he indicated that the settlement agreement was his final award (although the court found he had by then lost jurisdiction by the passage of time).

The court noted:

• The settlement meant there was no requirement for the arbitrator to provide reasons.
• The award was comprised of the settlement agreement, certificates of independent legal advice, Matrimonial Property Act acknowledgements, “attachments to the agreement”, and the content of the record where the parties confirmed their agreement with the settlement.
• Calling the settlement document “Pinder-Woodrow Settlement Terms” was not determinative of whether it was an award.

Natural Justice

Ms Woodrow argued that her absence from a portion of the arbitration proceedings was a failure to treat the parties equally. The court rejected this argument on the basis that her counsel was present throughout and no decisions were made in her absence.

Consent to Mediation

Ms Woodrow also argued that the lack of explicit, formal, and on the record consent to switching to mediation “poisons” the rest of the process. The court said that from their agreement to submit to arbitration “the parties must be assumed, in the absence of any evidence to the contrary, to have understood the flexible nature of the process, including that the process could shift from one mode of dispute resolution to another as circumstances dictated.” (Paragraph 36) The parties “after-the-fact” consent, evidenced by the settlement agreement, was sufficient to meet the consent requirements of section 35.