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Jan Advocate 2017

42 V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 THE ADVOCATE appeal to the British Columbia Court of Appeal. On June 14, 2013 the appeal regarding leave to appeal was dismissed.27 The appeal on the merits was heard on September 27, 2013. On December 27, 2013 the appeal was allowed.28 That decision was appealed to the British Columbia Court of Appeal. On January 20, 2015 the British Columbia Court of Appeal allowed the appeal and reinstated the second award.29 Leave to appeal to the Supreme Court of Canada was never sought. It therefore appears that this case was finally concluded on January 20, 2015. In summary, an arbitration that resulted in an award in March 2009 was subjected to a further six years of proceedings, of which one year involved a second arbitration, with the remaining five years being consumed by leave to appeal and appeal proceedings. Anyone who believes the last result in any proceeding must be the “right result” will perhaps argue that all of the additional expense and delay are presumptively worthwhile. But even leaving aside any issues regarding proportionality and cost/benefit, consider the disparity of the opinions of all the judges and arbitrators who served as cooks in the making of this broth. Can anyone believe that the results would necessarily have been the same had the order and combination of the judges and two arbitrators been shuffled? Unless one is prepared to make that argument, it is clear that the result was not the result of the application of principles of correctness or deference (although no doubt all of the judges believed they were operating under these principles) but of the random selection and ordering of decision makers with markedly different opinions. Creston Moly Corp. v. Sattva Capital Corp. The notice to arbitrate was filed in 2008. The award was rendered on December 23, 2008. The application by Creston Moly Corp. (“Creston”) for leave to appeal was denied.30 The British Columbia Court of Appeal allowed an appeal from that decision and granted leave to appeal.31 The appeal was heard on November 29, 2010 and dismissed on May 6, 2011.32 That decision was appealed to the British Columbia Court of Appeal. On August 7, 2012 the British Columbia Court of Appeal allowed the appeal after concluding that the award was “absurd”.33 Leave to appeal was granted by the Supreme Court of Canada on March 7, 2013.34 In a decision released on August 1, 201435 the Supreme Court of Canada concluded that the British Columbia Court of Appeal erred in granting leave


Jan Advocate 2017
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