Pinder v Woodrow, 2015 ABQB 750

Court of Queen ’ s Bench of Alberta Citation: Pinder v Woodrow, 2015 ABQB 750 Date: 20151127 Docket: 4801 148031, 1401 02682 Registry: Calgary Between: Douglas Ross Pinder Plaintiff - and - Kelly Lee Woodrow Defendant And Between: Kelly Lee Woodrow Applicant - and – Douglas Ross Pinder Respondent _______________________________________________________ Reasons for Decision

of the Honourable Mr. Justice M. David Gates _______________________________________________________ Overview [ 1 ] This decision was delivered orally, so this Court reserves the right to make any editorial changes to the final form of the Judgment. [ 2 ] This is an application by Douglas Ross Pinder (“Mr. Pinder”), filed February 25, 2014, seeking to enforce an Arbitration Award dated December 13, 2013, pursuant to s. 49(1) of the Arbitration Act , or in the alterative, an order for the specific performance of the Arbitration Award. In addition, Kelly Lee Woodrow (“Ms.

Woodrow”) has filed an originating application seeking leave to appeal, and to appeal, an Arbitration Award issued on March 13, 2014. [ 3 ] This matter was initially heard by me on September 10, 2015, at which time, I granted an adjournment to Ms. Woodrow’s then recently retained new counsel, Mr. A. Paul Allyjan, so as to allow him to properly prepare for oral argument. At the same time, I ordered a transcript of the proceedings before the Arbitrator on December 11-13, 2013, and granted leave to Mr.

Allyjan to file a supplementary brief prior to the continuation of the hearing set for November 9, 2015. [ 4 ] In her application/appeal, Ms. Woodrow advanced more than eighteen alleged errors on the part of the Arbitrator. All of these grounds of appeal were abandoned by Mr. Allyjan in his brief filed October 1, 2015, and confirmed during oral argument on November 9, 2015. Instead, Mr. Allyjan advanced three new grounds of appeal, more fully discussed below. At the conclusion of oral argument, I adjourned the matter to November 26, 2015 for decision. These are my oral reasons for decision.

Facts [ 5 ] The parties began cohabitating in Calgary in 1997, and married on October 30, 1998 in Banff, Alberta. They separated on May 6, 2010. [ 6 ] There are two children of the marriage: Davis Ross Pinder, born July 4, 1998, and Kennedy Rose Pinder, born April 29, 2000. [ 7 ] Since the date of separation, the parties have shared parenting of the children on an informal basis. [ 8 ] Mr. Pinder filed a Statement of Claim for Divorce and Division of Matrimonial Property on May 4, 2011. Ms.

Woodrow filed a Statement of Defence and a Counterclaim for Divorce and Division of Matrimonial Property on December 4, 2013. [ 9 ] Following unsuccessful attempts to mediate the outstanding disputes between the parties, they entered into an Arbitration Agreement (“the Agreement”) dated July 1, 2013, in which they retained Ronald S. Foster Q.C. to arbitrate the following issues:

a) parenting plan;

b) child support (retroactive child support and child support on an ongoing basis);

c) Section 7 expenses;

d) identification and division of the matrimonial property

e) guideline income of both parties;

f) spousal support

g) such other issues that arise from the above. [ 10 ] By the terms of the Agreement, the arbitration was made subject to the Arbitration Act of Alberta. The Agreement specified that the Arbitrator was to “hear and determine the disputes thereby submitted to arbitration”, and that the arbitration might be adjourned from time to time as the parties may agree or the Arbitrator may direct. The process for the arbitration was to be determined by the parties in conjunction with the Arbitrator. In the event of a dispute regarding the process, the Arbitrator was to make a determination as regards process.

Further, the Arbitrator was given the authority to rule on any questions of law in the same manner as a Justice of the Court of Queen’s Bench of Alberta, as well as to issue any necessary interim orders under the Divorce Act , the Matrimonial Property Act or the Rules of Court .

He was also given the authority to retain any necessary independent experts. [ 11 ] The arbitration award was specified to be due within 30 days of the close of the hearing “subject to any reasonable delay due to unforeseen circumstances” (para. 5.1), to be in writing and to set out the facts found by the Arbitrator, apply the relevant law and the determination of the issues in dispute. [ 12 ] Finally, the Agreement provided for an appeal to the Court of Queen’s Bench in accordance with s. 44(2) of the Act , on a

question of law, or with leave of the Court on a finding of fact involving a material misapprehension of the evidence. [ 13 ] Financial disclosure was exchanged by the parties in August, 2013. Both parties were questioned during September and October 2013. On October 17, 2013, the parties entered into a consent agreement with respect to parenting. This agreement has never been included in any arbitration award or entered as an order of this court. [ 14 ] The Arbitration commenced on December 11, 2013. During the course of the cross-examination of Ms.

Woodrow, both parties having previously been examined in chief, the parties entered into settlement discussions, with the Arbitrator acting as a mediator with the agreement of the parties. (See s. 35(1) Arbitration Act ) The parties reached a settlement agreement on December 13, 2013. Pursuant to s. 36 of the Act , the Arbitrator was obliged to terminate the arbitration and record the settlement in the form of an award. Both parties received independent legal advice and signed the Certificate of Independent Legal Advice, as well as the Matrimonial Property Act Acknowledgement.

Further, both parties, through their counsel advised on the record that they were in agreement with the terms of the Settlement Agreement as a final settlement. The Arbitrator submitted his final statement of account three days later. [ 15 ] The December 13, 2013 agreement was set out in a document entitled “Pinder-Woodrow Settlement Terms”. It was signed by the Arbitrator, both of the parties, together with their respective counsel. It included a term that any dispute involving the content of the agreement was to be referred to the Arbitrator for binding determination.

The document included a number of attachments, including detailed property division spreadsheets. [ 16 ] The parties conducted themselves thereafter in accordance with at least some of the terms of the agreement. Mr. Pinder commenced paying $5,000/month in child support; Ms. Woodrow transferred portions of her jewellery to Mr. Pinder as per the agreement; Ms. Woodrow transferred to Mr. Pinder on April 1, 2014, $53,267.25 in proceeds from the exercise of certain stock options. From December 13, 2013 until February 28, 2014, Mr. Pinder made repeated demands that Ms.

Woodrow to comply with all aspects of the award, including the transfer of various properties. [ 17 ] On February 28, 2014, Ms. Woodrow through her then counsel, not counsel representing her before the Arbitrator, and not counsel who appeared before me, filed and served materials in support of an application to the Arbitrator on the basis that the arbitration had been adjourned on December 13, 2013, and that it was still open to the Arbitrator to continue the arbitration and issue a final award. Specifically, the application alleged that:

a) the Arbitration had not been formally concluded on December 13, 2013 and that it was still open to the parties to reach “a full and final settlement”;

b) the December 13, 2013 letter was not an Arbitral Award with the meaning of the Arbitration Agreement or the Arbitration Act ;

c) Errors were made during the process that necessitated a remedy;

d) The Arbitrator retained jurisdiction to “hear and adjudicate upon certain matters brought before him in order to effect a full and final settlement between the parties”. [ 18 ] Counsel for the parties attended before the Arbitrator on March 12, 2014 via conference call. No transcript of this process was filed in conjunction with this appeal. On March 13, 2014, the Arbitrator issued a written decision in which he indicated that the Settlement Agreement was his final award. [ 19 ] On March 14, 2014, Ms. Woodrow filed the within application “appealing” the Arbitrator’s March 13, 2014 written clarification.

Position of the Parties [ 20 ] In addition to seeking leave to appeal, Ms. Woodrow advances three arguments to support her contention that the Arbitration Award dated March 13, 2014 should be set aside:

a) the December 13, 2013 agreement does not constitute an arbitration award within the meaning of the Arbitration Act as it fails to meet the requirements of s. 36 of the Act;

b) the December 13, 2013 agreement was concluded in breach of the requirement of s. 35(1) of the Act that the parties formally consent in advance to use mediation during the arbitration;

c) The Arbitrator acted in contravention of his duty to “treat the parties equally and fairly” (s. 19(1) Act ) when he proceeded with a portion of the proceedings in the absence of Ms. Woodrow;

d) the March 13, 2014, document entitled “Arbitration Award”, while providing clear reasons for the Arbitrator’s decision, does not meet one of the requirements of s. 36 of the Act in that it does not indicate the place where it was executed. Further, the March 13, 2014, document was issued more than 30 days after the completion of the arbitration and thus outside the permissible timeframe set out in paragraph 5.1 of the Arbitration Agreement. [ 21 ] In response to Mr. Pinder’s argument that this appeal is outside the appeal period specified in the Arbitration Agreement, Ms.

Woodrow say that the appeal was properly instituted on the day following the release of the Arbitrator’s March 12, 2014 Arbitration Award. [ 22 ] The position of Mr. Pinder is that the December 13, 2013 agreement constitutes the Arbitration Award and, as such, this appeal was brought outside the 30 day appeal period specified in the Arbitration Agreement. Mr. Pinder says that the December 2013 award is the final award pursuant to s. 41 of the Arbitration Act, and that the Arbitrator had no jurisdiction to issue a written clarification on March 13, 2014. Mr.

Pinter also says that the December 13, 2013 award meets all of the requirements of s. 36 of the Act . Finally, he

asks the Court to enforce the award, as per s. 49 of the Act . Analysis [ 23 ] Ms. Woodrow makes a number of arguments challenging the December 13, 2013, agreement as constituting a valid arbitral award within the meaning of the Arbitration Act . In my view there is no merit to any of these arguments. [ 24 ] First of all, Ms. Woodrow’s insistence that the December 13 th agreement comply with s. 38 of the Act is, in my view, misplaced.

The provision, read in conjunction with s. 36, clearly states that the requirement for an arbitrator to give reasons for his/her decision does not apply where the parties settle the matters in dispute during the arbitration. This is precisely what took place in this instance. During the course of the arbitration hearing, the parties transitioned to a mediation process that ultimately resulted in a final settlement of the issues in dispute.

Under the circumstances, I am satisfied that there was no requirement for the Arbitrator to provide reasons in this instance. [ 25 ] I am also satisfied that the December 13, 2013 agreement complies with the other requirements of s. 38 of the Act , namely that it was signed by the Arbitrator, and indicated the date and place where it was made.

I do not accept the argument that the December 13, 2013 document should be examined in isolation from the executed Certificates of Independent Legal Advice, the Matrimonial Property Act acknowledgements signed by both parties and their counsel, the attachments to the agreement, and the content of the record from December 13, 2013, during which both parties confirmed their agreement with the settlement. These certificates and the expression of agreement by the parties on the record are all important ingredients of the settlement agreement.

As such, they must be viewed together and not in isolation of one and other. [ 26 ] I am satisfied that the date and location that this settlement agreement was made is clearly indicated. Specifically, the date is set out at the top of the first page, as well as near the bottom of page 3, of the December 13, 2013 document. Likewise, the location – Calgary, Alberta – is set out in the Certificates of Independent Legal Advice, as well as in the Matrimonial Property Act acknowledgment and accompanying Certificate of Acknowledgment.

It is conceded that a copy of the December 13, 2013 document was provided to both parties in accordance with s. 38(4) of the Act . [ 27 ] Ms. Woodrow also challenges the December 13, 2013 agreement on the basis that it is entitled “Pinder-Woodrow Settlement Terms” and not referred to as an arbitration award. In light of the fact that both of the parties treated the agreement as the resolution of their outstanding matrimonial dispute and, indeed, acted on at least some of its terms, I fail to see the legal significance of what the particular document may have been called.

It was, in fact, an arbitral award and treated by all concerned as such until a much later date, well after the expiration of the 30 day appeal period on or about January 12, 2014. Further, there is nothing in the Act or the agreement which prescribes the form of an arbitration award, just that it comply with the requirements of s. 38. [ 28 ] While Ms. Woodrow challenges certain aspects of the process giving rise to the settlement, she does not challenge the fact that the agreement, on its face, resolves all of the issues submitted by the parties for arbitration. As more fully discussed below, Mr.

Allyjan conceded during oral argument that the content of the March 13, 2014 Arbitral Award did not in any way change the agreement recorded in the December 13, 2013 document. Did the Arbitrator fail to in his duty to “treat the parties equally and fairly” (s. 19(1), Arbitration Act ) when he proceeded with a portion of the proceedings in the absence of Ms. Woodrow? [ 29 ] A review of the transcript of the Arbitration proceedings reveals that Ms. Woodrow was absent for a portion of the proceedings on December 12, 2013.

At the outset of the proceedings on December 13, 2013, the Arbitrator makes reference to the fact that Ms. Woodrow was not present for a portion of the previous day’s proceedings and then proceeds to provide her with a

summary of what transpired in her absence. Unfortunately, there is no reference in the transcript from December 12, 2013 to indicate when Ms. Woodrow actually left the room or, indeed, the duration of her absence. [ 30 ] During oral argument, counsel for Ms. Woodrow conceded that Ms. Woodrow’s then counsel was present throughout the proceedings and, moreover, that nothing was decided during her absence. He also conceded that Ms. Woodrow suffered no actual prejudice in light of the review provided by the Arbitrator the following day. [ 31 ] Ms.

Woodrow points to no authority supporting a conclusion that she was required to be present throughout the proceedings. In my view, the fact that Ms. Woodrow’s then counsel was present throughout the proceedings, including during the period of Ms. Woodrow’s apparent absence, goes a long way in terms of addressing any concerns in this regard. Viewed in the context of Mr. Allyjan’s concessions regarding the substance of the proceedings that unfolded in Ms. Woodrow’s absence, I am satisfied that there was no breach of the rules of natural justice in the circumstances.

Moreover, I am not persuaded that this process resulted in either unfair or unequal treatment of Ms. Woodrow in the proceedings. Was the December 13, 2103 Agreement concluded in breach of the requirement of s. 35(1) of the Act that the parties formal consent to use mediation during the arbitration? [ 32 ] Ms. Woodrow says that the December 13, 2013 agreement was concluded in breach of the requirements of s. 35(1) of the Act in that there was no contemporaneous consent by the parties to convert the arbitration into a mediation.

It is contended that such consent must be explicit, formal, on the record and take place in advance of the conversion of the process. According to Ms. Woodrow, the record is entirely silent, either at the beginning of the Arbitration, or at the time the proceedings went “off the record” and moved into mediation. Ms. Woodrow says that this lack of explicit consent poisons the rest of the process. [ 33 ]

Section 35 of the Act provides as follows: 35(1) The members of an arbitral tribunal may, if the parties consent, use mediation, conciliation or similar techniques during the arbitration to encourage settlement of the matters in dispute.

[ 34 ] It is clear that there is no statutory direction setting out the precise process to be followed in those situations where the parties agree to shift from arbitration mode to another form of dispute resolution, including mediation and/or conciliation.

In my view, the absence of such a formula or “recipe” in the statute is consistent with the overall objective of the legislation – to provide a flexible mechanism to litigants that potentially assists them in the resolution of their dispute outside of the formal court process. [ 35 ] In this instance, both parties were represented by experienced counsel throughout the process.

From their agreement to submit this matter 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. [ 36 ] I agree that it would have been preferable if the transcript had recorded the proceedings that led the parties and the Arbitrator to shift from arbitration mode to mediation mode.

In the absence of such evidence, I look to the evidence that is before me, notably the absence of any evidence on the record that indicates a lack of consent or agreement, combined with the very explicit agreement of both parties that is contained on the record at the conclusion of the proceedings. Under such circumstances, I am unable to accept Ms. Woodrow’s contention that so called “after-the-fact” consent is insufficient to meet the requirements of s. 35. [ 37 ] I am satisfied on the evidence before me that both parties consented to the process shifting from an arbitration to a mediation.

Is the appeal outside the appeal period specified in the Arbitration Agreement? [ 38 ] Mr. Pinder says that this appeal must fail on the basis that it was filed outside the 30 day appeal period specified in the Arbitration Agreement and the Act . As such, he says that the Arbitration Award was made on December 13, 2013, and that the appeal period would have expired on or about January 12, 2014. Mr. Pinder challenges Ms.

Woodrow’s contention that the appeal period only started to run on March 13, 2014, the date of the Arbitrator’s confirmation of the December 13, 2013, settlement, and was still open on March 14, 2014, when Ms. Woodrow filed her Originating Notice (Notice of Appeal). [ 39 ] I have previously determined that the December 13, 2013, document is a valid arbitration award within the meaning of s. 38 of the Act .

While the Act creates a 30 day window for a variety of actions to take place relative to an arbitration award, including the amplification of reasons, (s. 40), and the correction of errors, (s. 43), I am of the view that once the 30 day window has expired, the arbitrator no longer has jurisdiction over the matter. Neither the Act nor the agreement allowed for an extension of the 30 day period.

I would simply add that during the 30 day period following the December 13, 2013, agreement, the arbitrator submitted his final account and the parties began the process of adhering to at least some of the obligations created in the agreement. On the evidence before me, there is no evidence of any steps being taken by either of the parties that suggest that they did not view this as a final settlement of their dispute. [ 40 ] The significance of specified time limits in arbitration proceedings is explored in the decision of Nation J. in Metcalfe v. Metcalfe , 2006, ABQB 798 .

Having regard to the content of the Act , the Arbitration Agreement and the decision in Metcalfe , I agree with Mr. Pinder’s contention that the Arbitrator had lost jurisdiction over the matter and/or was functus at the time, Ms. Woodrow filed her February 28, 2014 application before the Arbitrator. As such, I am of the view that the response dated March 13, 2014, entitled “Arbitration Award” is of no legal significance or consequence. Indeed, counsel for Ms.

Woodrow supports the view that the March 13, 2014, “Arbitration Award” was outside the timeline set out in paragraph 5.1 of the arbitration agreement and, as such, the arbitrator had lost jurisdiction. [ 41 ] While Ms. Woodrow concedes that the March 13, 2014, “Arbitration Award” was made after the Arbitrator had lost jurisdiction over the matter, she somewhat paradoxically relies on the March 13, 2014, “Arbitration Award” as the start date of the 30 day appeal period. In my view, Ms.

Woodrow cannot on the one hand, rely on the validity of the March 13, 2014, “Arbitration Award” and, at the same time, contend that it was made at a time when the Arbitrator no longer any jurisdiction over the matter. These are inconsistent legal positions that simply cannot be sustained. [ 42 ] I am satisfied that the 30 day appeal period commenced on or about December 13, 2013, and expired on or about January 12, 2014. As such, I accept Mr.

Pinder’s contention that this application for leave to appeal, and this appeal, have not been brought within the thirty day statutory appeal period adopted by the parties in paragraph 6.1 of the Arbitration Agreement.

Even assuming that the Agreement or the Act would permit an application to extend the time for the filing of an appeal, no such application has been brought in this instance. [ 43 ] For all of these reasons, I am satisfied that the proceedings before the Arbitrator in mid March 2014 were of no legal consequence as they all took place at a time when the Arbitrator no longer had jurisdiction over this matter. The applicable appeal period in relation to this matter commenced on December 13, 2103, the date of the parties’ final agreement resolving the matters in dispute before the Arbitrator. Ms.

Woodrow’s filed documents of March 14, 2014 were, in my view, filed outside the appeal period. Conclusion [ 44 ] Ms. Woodrow’s application seeking leave to appeal is denied. Even if I am wrong in determining that leave should not be granted, I am satisfied that there is no merit to any of the grounds advanced in her appeal. In the alternative, I would dismiss her appeal. [ 45 ] Mr. Pinder’s application to enforce the Arbitration Award of December 13, 2013 is granted. [ 46 ] As the successful party on both applications, Mr. Pinder is entitled to his costs.

The parties may speak to the issue of costs before January 31, 2016, if they are unable to agree on how costs are to be determined. Heard on the 9 th day of September and November 9, 2015. Delivered orally on the 26 th day of November, 2015.

Dated at the City of Calgary, Alberta this 26 th day of November, 2015. M. David. Gates J.C.Q.B.A. Appearances: Bradley Y. Minuk Counsel for the Plaintiff/Respondent, Douglas Ross Pinder A. Paul Allyjan Counsel for the Defendant/Applicant, Kelly Lee Woodrow