Dawson v Dawson, 2016 ABQB 167

Court of Queen ’ s Bench of Alberta Citation: Dawson v Dawson, 2016 ABQB 167 Date: 20160321 Docket: FL01 22625 Registry: Calgary Between: Jaimes Douglas Richard Dawson Applicant - and - Catherine Dawson (also known as Catherine Jacksteit) Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J. Strekaf _______________________________________________________ I. Introduction [ 1 ] Jaimes Dawson is applying pursuant to

section 44 of the Arbitration Act , RSA 2000, c A-43, as amended, for leave to appeal and, if leave is granted, to appeal arbitration awards made by Doug Moe, QC on October 15, 2015, November 5, 2015 and November 6, 2015 (the “Award”) arising out of a matrimonial property and custody dispute between him and Catherine Dawson. He is also seeking to

set aside the Award pursuant to

section 45 of the Arbitration Act . If Mr. Dawson’s application is granted, Ms. Dawson is cross-applying for leave to appeal an interim arbitration award dealing with parenting issues granted on December 11, 2015 (the “Interim Award”). II. Relevant Facts [ 2 ] The parties began cohabiting in December 2008, married in July 2012 and had a child in October 2013. They separated in October 2014 and have had ongoing disputes about support, parenting and property matters. Both parties were represented by experienced family law counsel and commenced mediation proceedings before Mr.

Moe in an attempt to resolve their disputes. The parties and their counsel participated in three mediation sessions with Mr. Moe on February 5, 2015 (2.5 hours), March 18, 2015 (2.2 hours) and April 15, 2015 (3.7 hours). In August 2015, the parties entered into a Mediation/Arbitration Agreement in which they agreed to retain Mr. Moe as Mediator/Arbitrator to arbitrate spousal support, child support, custody and parenting, division of their matrimonial property and costs of their Family Law Act proceeding and of the arbitration (the “Agreement”).

The Agreement contemplated that they would begin the process as mediation and would resort to arbitration only for those issues that they were unable to resolve by agreement in mediation.

The Agreement was executed by the parties and witnessed by their respective legal counsel; certificates of independent legal advice are attached. [ 3 ] Following execution of the Agreement the parties attended five further mediation sessions with the Mediator/Arbitrator without their counsel on August 20, 2015 (7.0 hours), August 25, 2015 (2.9 hours), September 3, 2015 (2.6 hours), September 24, 2015 (9.2 hours) and October 15, 2015 (8.1 hours).

In total, the parties spent over 38 hours with the Mediator/Arbitrator over the course of eight sessions, all of which were digitally recorded. [ 4 ] Following the September 24, 2015 session, the Mediator/Arbitrator sent an email to the parties and their counsel outlining the “tentative understanding” that had been reached. It confirmed that “we did not ‘cement’ anything as a deal so you could each sleep on it and seek advice if you want”. Mr.

Dawson decided not to confirm that understanding. [ 5 ] The parties again met with the Mediator/Arbitrator on October 15, 2015 from 9:30 am to 5:30 pm in an attempt to determine whether the dispute could be resolved prior to proceeding to arbitration scheduled in November. Throughout the day the Mediator/Arbitrator caucused separately with each of the parties, without the other party present, and spoke with them on the telephone. By late afternoon the parties had reached an understanding on various financial issues.

The Mediator/Arbitrator asked the parties if they wanted to cement their understanding and have him issue a consent arbitration award or if they wanted to discuss it with their counsel and sleep on it. Both parties agreed that they wanted to cement it. [ 6 ] On October 15, 2015 at 6 pm the Mediator/Arbitrator sent an email to the parties and their counsel advising that they “were able to reach the basic broad brush strokes of a deal today and have authorized me to impose it as a consent arbitration award” and summarized the main points as follows: 1. No other equalization payments or sharing of debts. 2.

Catherine gets Wildwood home and has to get Jaimie off the mortgage. 3. Jaimie keeps all the joint debt listed on the spread sheet except the mortgage registered against Wildwood which Catherine takes. 4. Each takes their own individual debt in their own name and pays their own legal costs to date. 5. Jaimie pays Catherine lump sum spousal support of approximately 240K more or less depending on where folks call the equalization payment – but we aren’t resolving that number. This is done by forgiving the equalization payment Jaimie would otherwise receive and by Jamie paying an additional lump of 120K. 6.

Jaime would pay 18 months of 5K net payments for a total of 90K beginning in November 2015, whether or not there is any other paper work reflecting this deal. This 90K is in exchange for any interest Catherine may have in the Top Hat unfunded pension. (Also considered in the parties minds as part of the spousal deal/but left as property to keep away from tax inclusion. Wording to be figured out to make sure it is tax neutral/free.). 7. Jaimie will pay up to date the two interim spousal support payments of 3,500.00 each for October 2015. 8.

Jaimie will deduct all his spousal support payments up to the end of October 2015 and will pay Catherine’s tax attributed to the inclusion of the spousal support in her income. 9. Jaimie will rollover 115K of RRSP to Catherine. 10. The parties will agree on a school district for B in the next 18 months or have Doug decide it by April 30, 2017. 11. Parties will do child support/section 7’s, parenting according to tentative deal previously reached, Doug to assist in sorting out details or retains jurisdiction to arbitrate. 12. Doug can fill in details to make above effective but can’t ‘change’ the deal. [ 7 ] Mr.

Dawson subsequently spoke to his counsel who advised the Mediator/Arbitrator and opposing counsel that Mr. Dawson wanted to think about it. He brought this application on October 29, 2015. [ 8 ] On October 30, 2015, Ms. Dawson’s counsel asked the Mediator/Arbitrator to issue a formal award confirming what had transpired on October 15, 2015. The Mediator/Arbitrator issued a Consent Arbitration Award on November 5, 2015, which summarized what had occurred and attached his October 15, 2015 email. A Consent Arbitration Correction Award was issued by the

Mediator/Arbitrator on November 6, 2015 to identify Calgary, Alberta as the location. [9] Despite the dispute regarding the Award, the parties continued to work with the Mediator/Arbitrator to address someparenting issues, which led to the issuance of additional interim awards on October 30, 2015, November 16, 2015, November 24, 2015and December 11, 2015. III. Positions of the Parties [10] Mr. Dawson seeks leave to appeal and, if granted, to appeal the Award and set it aside pursuant to

section 44 of theArbitration Act on the grounds that the Award is an agreement dealing with matrimonial property that is not enforceable as theacknowledgements and certificates of independent advice contemplated in

section 37 and 38 of the Matrimonial Property Act, RSA2000, c M-8, as amended were not executed. [11] Mr. Dawson also seeks to set aside the Award pursuant to section 45(1)(

f) and 45(1)(

g) of the Arbitration Act on the groundsthat he was treated manifestly unfairly and unequally, that he was not given the opportunity to respond to the information provided byMs. Dawson or to review the proposed terms in advance or have his legal counsel review the

summary of the discussions that occurred,that he did not receive proper notice of the commencement of the arbitration, that the Mediator/Arbitrator failed to adopt basic proceduralrights to a fair hearing and that he utilized procedures that contravened the Arbitration Act and the Agreement. [12] Mr. Dawson also claims that the Award was frustrated by virtue of the decline in value since October 15, 2015 of some of theinvestments that made up the parties’ matrimonial property deal. [13] Ms. Dawson opposes leave being granted or the Award being set aside.

She denies that the failure to arbitrate all issues onone date resulted in prejudice to Mr. Dawson, that there was a denial of natural justice, that Mr. Dawson was denied an opportunity topresent his case or respond to her case, that he was treated unequally or unfairly by the Arbitrator and that the Award requiredMatrimonial Property Act acknowledgements or certificates of independent advice. She denies that the Award was frustrated and crossapplies to seek leave to appeal the Interim Award and to have the Arbitrator replaced in the event the Award is set aside. IV. Analysis A.

Section 44 - Appeal [14] The Arbitration Act is designed to provide a flexible mechanism to enable parties to adopt arbitration as a means to resolvetheir disputes outside of the court process. The Arbitration Act permits mediation to be used as part of the arbitration process with theconsent of the parties (section 35).

The Arbitration Act limits judicial intervention in the process, except to the extent contemplated in thelegislation (section 6). [15] Section 44(1) of the Arbitration Act provides that parties can provide in their arbitration agreement for the right to appeal anaward to the court on a question of law, on a question of fact or on a question of mixed fact and law. The Agreement does not containsuch a provision.

As a result, the ability to appeal the Award is limited to an appeal on a question of law, with leave of the court pursuantto section 44(2) which states: If the arbitration agreement does not provide that the parties may appeal an award to the court on a question of law, a party may, with thepermission of the court, appeal an award to the court on a question of law. [16] Section 44(2.1) provides that the court shall only grant permission to appeal an award “if it is satisfied that (

a) the importanceto the parties of the matters at stake in the arbitration justifies an appeal, and (

b) the determination of the question of law at issue willsignificantly affect the rights of the parties.” [17] The issue of law in respect of which Mr. Dawson seeks leave to appeal is whether the Award is unenforceable because noacknowledgements and certificates of independent advice pursuant to

section 38 of the Matrimonial Property Act were executed inrespect of the Award. [18] I am satisfied that it is appropriate to grant Mr. Dawson leave to appeal on this issue. He has raised an arguable issue inrespect of which there is no decided authority. The issue involves a question of law that is critical to determining whether the parties arebound by the Award, which deals with spousal support and the distribution of their matrimonial property.

These are matters ofconsiderable importance to both parties. [19] I will now address on its merits the issue of whether the requirements of sections 37 and 38 of the Matrimonial Property Actapply to an award issued on a consent basis pursuant to the Arbitration Act. [20]

Section 37 of the Matrimonial Property Act permits parties to opt out of the legislated regime for distribution of matrimonialproperty by entering into a written agreement.

Section 38 provides that such an agreement is enforceable if each spouse has executed anacknowledgment that they are aware of the nature and effect of the agreement; that they are aware of the possible future claims toproperty they may have under the Act; that they are giving up these claims as necessary to give effect to the agreement; and that they areexecuting the agreement freely and voluntarily without any compulsion by the other spouse. The acknowledgement is to be made beforea lawyer other than the lawyer acting for the other spouse (“MPA Acknowledgment”). [21] Mr.

Dawson relies on a number of cases where the court has considered the requirement for an MPA Acknowledgement:Corbeil v Bebris (1993), (AB CA), 141 AR 215 (CA); Rarog v Rarog, 2007 ABQB 98; Voll v Voll, 2008 ABQB

89;Mayowski v Mayowski, 2011 ABQB 31. All of these cases are distinguishable as none involve an agreement between parties that wasincorporated into an arbitration award pursuant to the Arbitration Act. [22] The Award in this case was made pursuant to

section 36 of the Arbitration Act, which provides that if parties settle the mattersin dispute during arbitration then “the arbitral tribunal shall terminate the arbitration and shall record the settlement in the form of anaward.” [23] The issue on this application is whether an arbitration award issued under the Arbitration Act that is based upon a settlementreached by the parties requires an MPA Acknowledgment to be enforceable. [24] There is a significant difference between a contractual agreement reached between spouses pursuant to

section 37 of theMatrimonial Property Act and an agreement reached between spouses that they elect to have incorporated into either a consent ordergranted by the court or an award under the Arbitration Act. These are inherently different instruments. The mechanism to enforce abreach of contract is by way of action for breach, whereas the mechanism to address the breach of a court order or arbitration award thathas been reduced to a court order is contempt proceedings.

The procedure to vary a contractual agreement is different from that to vary acourt order or an arbitration award. [25] In Pinder v Woodrow, 2015 ABQB 750, the parties executed MPA Acknowledgements in connection with a settlementreached in the course of arbitration. The circumstances in that case, however, were different from those at bar and Pinder does not standfor the proposition that an MPA Acknowledgment is required for an arbitration award to be enforceable.

While there may be goodpractical reasons for an arbitrator and counsel to have parties execute MPA Acknowledgments in connection with a settlement that resultsin a consent arbitration award, it is not a prerequisite for an award to be enforceable.

Section 38 of the Matrimonial Property Act islimited to instruments that are sought to be enforceable as agreements. The opening language of

section 38 states: “An agreementreferred to in

section 37 is enforceable if each spouse....” Once an agreement is incorporated into a court order or arbitration award, itbecomes enforceable in that capacity, not in its capacity as a contract. [26] The logical corollary of Mr. Dawson’s argument is that any consent order granted by the court or any consent arbitrationaward dealing with matrimonial property would not be enforceable in the absence of MPA Acknowledgments.

I reject this proposition. [27] Following the hearing of this application, but before delivery of this decision, counsel provided me with a copy of a decisionin Kawchuk v Kovacs, 2016 ABQB 118, issued on February 26, 2016. In that case, the parties entered into a mediation/arbitrationagreement that contained acknowledgements under

section 38 of the MPA and certificates of independent advice on June 11, 2015, thesame day as their mediation. The parties, with their counsel, reached a settlement facilitated by the mediator. The parties agreed that theterms of the agreement would be incorporated into an Arbitration Award, which was issued on July 14, 2015. In denying the mother’sapplication to set aside the Arbitration Award, Justice Macleod stated at para 16: Finally, Mom relies upon the formal requirements of sections 37 and 38 of the MPA.

There is no question that the Agreement providedfor the resolution under the Act and the Divorce Act, RSC 1985, c 3, by way of arbitration/mediation. There is also no question that theparties both received independent legal advice and that paragraphs 38(1)(a-

e) of the Act were complied with. The object of the MPA asdescribed by the Alberta Court of Appeal at para 32 of Corbeil v Bebris (AB CA), [1993] AJ No 587, 141 AR 215,was clearly met. Mom’s counsel conceded during argument that, had arbitration been conducted, the Arbitration Award would not haveattracted scrutiny under sections 37 and 38. But I do not think that distinction is meaningful. Both the Act and the Agreementcontemplate the eventuality of settlement. [28] The circumstances in that case are different from those before me.

I do not view Kawchuk as stating that MPAAcknowledgements are required to make a consent arbitration award enforceable. To the extent it might be interpreted in that fashion, Iwould respectfully disagree. [29] The Award is enforceable notwithstanding that MPA Acknowledgments were not executed in respect of the agreementreflected in the Award. The appeal is dismissed. B.

Section 45 - Application to set aside the Award [30] Mr. Dawson seeks to set aside the Award pursuant to section 45(1)(

f) and (

g) of the Arbitration Act which provides that thecourt may set aside an award where: (

f) the applicant was treated manifestly unfairly and unequally, was not given an opportunity to present a case or to respond to anotherparty’s case, or was not given proper notice of the arbitration or of the appointment of an arbitrator, (

g) the procedures followed in the arbitration did not comply with this Act or the arbitration agreement. [31] Mr. Dawson makes of number of submissions in this regard. i. Failure to adhere to accepted practice [32] Mr. Dawson submits that it is an accepted practice amongst the family law bar that if the structure of an agreement is reachedthrough mediation, the details are published by the mediator and delivered to legal counsel to prepare a final written agreement withattached MPA Acknowledgments.

There was no consensus between counsel or any evidence filed on this application to establish that thisis a generally accepted practice or that compliance with such a practice would be required in circumstances where the parties executed aMediation/Arbitration Agreement that did not contemplate such a process.

In the absence of such evidence, there is no basis to considerwhether this practice could be inferred as an implied term of the Agreement (despite its absence as an express term), whether a departurefrom this alleged practice is significant or whether such a practice should preclude parties from proceeding in a different fashion.

[ 33 ] While one mechanism to document a settlement reached through mediation may be the execution of an agreement by the parties with MPA Acknowledgments, there is no reason why parties who are participating in mediation in connection with an agreement to arbitrate their dispute are not at liberty to instead have a consent arbitration award issued pursuant to

section 36 of the Arbitration Act that would not require MPA Acknowledgments. ii. Conversion of a mediation into an arbitration without sufficient notice [ 34 ] Mr. Dawson submits that the Arbitrator/Mediator unilaterally converted a non-binding mediation into a Consent Arbitration Agreement without following the procedures outlined in the Agreement or the Arbitration Act . Both the Arbitration Act and Agreement permit a flexible use of both arbitration and mediation techniques.

Sections 35 and 36 of the Arbitration Act state: 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.

(2) After the members of an arbitral tribunal use a technique referred to in subsection (1), they may resume their roles as arbitrators without disqualification. 36 If the parties settle the matters in dispute during arbitration, the arbitral tribunal shall terminate the arbitration and shall record the settlement in the form of an award. [ 35 ] Paragraph 20 of the Agreement states: 20.

The parties shall begin this process as a mediation and only have the Mediator/Arbitrator arbitrate those issues that they are unable to resolve by agreement in mediation. [ 36 ] The parties were in their eighth mediation session on October 15, 2015 with a plan to proceed to an arbitration hearing commencing in a few weeks if the matter was not resolved through mediation.

When the parties had reached an agreement on the financial issues, the Mediator/Arbitrator specifically asked them if they wanted to proceed to have the matter dealt with as a consent arbitration award or have the opportunity to speak with counsel and sleep on it. Both parties expressly agreed to proceed with a consent arbitration award, as is evident from the following excerpts from the transcript at page 394 and pages 401-404: The Arbitrator: The next question is, is this done? Is this a deal? Can I say this is a consent arbitration award, and it’s done? Or are we sleeping on it and talking to our lawyers?

Are we cementing it and nobody can wiggle out of it? ... The Arbitrator: Yeah. So the question is, do we cement this now, or do we leave it for people to sleep on and retract from in the morning when they have their --when they talk to their girlfriend or their mom or -- Mr. Dawson: Yeah, I -- The Arbitrator: --and change their minds. Mr. Dawson: I’m of the view that we should hang up and never speak of this again to anyone, including our lawyers or anyone, and -- Ms. Dawson: I’m actually laughing. Sorry. That’s funny. The Arbitrator: No, so my question is -- Ms.

Dawson: I’m laughing because it’s probably true, because the minute you talk to anyone else, it’s going to get screwed up. The Arbitrator: No, but – no, because Ashley will say, What are you doing, right? And you talk to your big brother or your mom, they’ll say, What are you doing? And – because they want to support you and they want to take care of you. You always get that, and what they really need to do is talk to me, right, and understand what you guys did and why you did it. So the question is cement or sleep on it? Mr. Dawson: Yeah, that’s the thing.

Like, I don’t – if we give the opportunity to –well, nobody else – nobody else deals with this other than me and Ron, but -- The Arbitrator: So just elect. Cement or sleep? Mr. Dawson Cement. The Arbitrator: Catherine? Ms. Dawson: Done. Cement.

The Arbitrator: Cement. Okay. So I’m hearing that you guys are giving me authority to impose this as a consent arbitration award as a final deal subject to me being able to fine tune details or wording to make this effective and anything we didn’t talk about that doesn’t fit inside that is going to be subsumed in the spirit of it so it doesn’t change – change it, but there might be little details we have to word in there because we didn’t take the time to word them now. That’s how court orders get done.

They have a rule in the Court orders that said, you know, the court grants an order, and then sometimes there’s – you know, they forgot to add a clause or something to make the word order work, and people going back to the judge and say, give us a clause that says ‘X’ to make this you did give us work. That’s all we’re talking about. Can’t change it, right? You give me that authority. I can’t change it. I can only fill in the blanks that we didn’t say out loud. Mr. Dawson: Yeah. The Arbitrator: Okay. Mr. Dawson: Yeah.

I didn’t understand every word you just said there, but I feel like I’ve been read my rights, and I acknowledge them. The Arbitrator: Yeah, okay. Catherine? Ms. Dawson: So I’m just upset because the daycare lady is texting yelling at me, so -- The Arbitrator: Tell her this was a really big day and you’ll give her a bonus. Mr. Dawson: I don’t have my money (inaudible) payment. The Arbitrator: You’re not going to pay it today. You’ll pay it later. Ms. Dawson: Okay.

On a side note, Jaimie, then can you and I work together to transfer the – well, I guess let’s try and get this done by November, so we can get those things out of the way. The Arbitrator: Yeah. Okay, Catherine? So you’re okay with the – a consent arbitration award, Doug to fill in the details if necessary to make it work, right? Ms. Dawson: Sorry. Say that again. The Arbitrator: Consent arbitration award, Doug to fill in the details if necessary to make it work Ms. Dawson: Yeah. The Arbitrator: Yeah. Okay. Ms. Dawson: And then what are we doing with – sorry, I’m trying to drive here.

Yeah, I agree to that, and then for parenting, the schedule, Jaimie, do you and I just make it temporary again for the next month or so until we can get in with Doug again? [ 37 ] The manner in which the Mediator/Arbitrator proceeded was consistent with both the Arbitration Act and the Agreement. The parties had entered into an Agreement that contemplated the use of both mediation and arbitration techniques.

Once the settlement was reached during the mediation phase, the parties were asked by the Mediator/Arbitrator and agreed to move into the arbitration phase and incorporate their settlement into a consent arbitration award. The parties were given clear and sufficient notice that this was taking place. [ 38 ] There is no reason why a settlement reached through the use of mediation techniques as contemplated in

section 35 could not be incorporated into an award or why

section 36 should be narrowly construed to be only available for a settlement reached in the course of an actual arbitration hearing. Such an

interpretation would be inconsistent with the legislative intent of providing a flexible mechanism for parties to resolve their disputes outside the court process. The Arbitration Act should be interpreted in a broad purposive fashion. iii. Failure to instruct Mr. Dawson to contact his counsel [ 39 ] Mr. Dawson submits that he was treated unfairly because he was not instructed to contact his counsel before agreeing to have the understanding reached on October 15, 2015 incorporated in a consent arbitration award.

The parties attended the first three mediation sessions prior to execution of the Agreement with counsel present and five mediation sessions thereafter without their counsel. The parties are not unsophisticated. Mr. Dawson is a chartered accountant and partner at Ernst & Young, where he has worked for 19 years. There is nothing to indicate that the parties were precluded from finalizing an agreement without their counsel or that they were incapable of making a decision that was binding upon them without their counsel. Moreover, it is clear from the transcript that Mr.

Dawson was given the opportunity to either cement the understanding or to sleep on it and discuss it with counsel. He elected the former. iv. Caucusing [ 40 ] Mr. Dawson expresses concern that the Mediator/Arbitrator obtained information and had a discussion on the merits of the case with Ms. Dawson without him or his legal counsel present. The practice of caucusing separately with each party at various points in the process is a well-recognized mediation technique. Mr. Dawson was clearly aware that this technique was being utilized. He met with the Mediator/Arbitrator without Ms.

Dawson and participated actively in this process without expressing any concerns at the time. His after-the-fact rejection of this technique is without merit. v. Provision of Legal Advice by the Mediator/Arbitrator

[ 41 ] Mr. Dawson alleges the Mediator/Arbitrator provided legal advice in the course of the mediation session. It is reasonable to expect there to be some general discussion about legal concepts by a mediator in the course of mediation. There is a difference between providing legal advice and legal information. I have reviewed the alleged legal advice given by the Mediator/Arbitrator in the course of the eight hour session on October 15, 2015. I do not consider the information provided by the Mediator/Arbitrator inappropriate in the circumstances. vi. Discussion between the Mediator/Arbitrator and Ms.

Dawson’s Counsel [ 42 ] Mr. Dawson expresses concern that there was a private telephone call between the Mediator/Arbitrator and Ms. Dawson’s counsel in the course of the session on October 15, 2015, but there was no similar call with his counsel. A review of the transcript indicates that in the course of meeting with the Mediator/Arbitrator Ms. Dawson suggested that they contact her counsel, which was done, and an ensuing discussion took place between the Mediator/Arbitrator, Ms. Dawson and Ms. Dawson’s counsel. This occurred earlier in the day prior to the parties reaching an understanding.

There is no evidence that Mr. Dawson had or expressed a similar desire to speak with his counsel that day or that he was deprived of such an opportunity. Mr. Dawson does not identify how he was prejudiced by not having had such a conversation. I see nothing unfair about the discussion itself or anything unfair arising from it. vii. Undue influence/undue pressure [ 43 ] Mr.

Dawson alleges the mediation process was unfair as “it placed him under continual emotional and financial distress and undue influence”, that the Mediator/Arbitrator “failed to appreciate the obvious emotional and financial stress” that he was under and that the Mediator/Arbitrator applied undue pressure to make him agree to an award without insisting that he speak with his counsel.

While there is no doubt that both parties were experiencing significant stress, this is likely the case with most parties who are in the course of trying to resolve their property, support and parenting issues on the breakdown of a marriage. I have reviewed the instances of alleged undue pressure identified in the transcript and I am of the opinion that Mr. Dawson has not established he was subjected to any undue influence or undue pressure by the Mediator/Arbitrator. viii. Failure to arbitrate all issues submitted in the Agreement [ 44 ] Mr.

Dawson submits that the failure to deal with all of the issues in dispute in the Award delinked the financial and property issues from his long expressed desire for a comprehensive decision on all issues. While Mr. Dawson may have wanted a comprehensive decision, the parties had not reached agreement on parenting issues on October 15, 2015 when he agreed to cement the financial deal and to

schedule further sessions to deal with the parenting issues. Presumably, he was prepared to trade-off his desire for a comprehensive settlement with other concessions made by Ms. Dawson. ix. Confusion [ 45 ] Mr. Dawson submits that there was confusion with respect to offers. I have reviewed the excerpts identified from the transcripts and I am satisfied whatever confusion or frustration that the parties expressed in the course of the day, in the end, they understood the terms of the understanding they reached. [ 46 ] At no point does Mr.

Dawson identify any particular confusion or specific errors that he claims were made by the Mediator/Arbitrator in his October 15, 2015 email, which summarized the main points of the deal. In the event that Mr. Dawson thought the Mediator/Arbitrator made a mistake, such that the parties’ agreement was not accurately reflected in the Award, he could have brought an application pursuant to

section 43 of the Arbitration Act to correct it.

Section 43 permits correction of typographical errors, errors of calculation and similar errors in an award or injustices caused by an oversight by the arbitral tribunal. This is the mechanism prescribed in the legislation to deal with such matters. x. Failure to give notice and conduct a proper hearing [ 47 ] Mr. Dawson submits the Mediator/Arbitrator failed to conduct a proper arbitration hearing and that he was not given adequate notice of the commencement of the arbitration phase of the proceedings.

Once the parties reached an understanding of how they wished to resolve their financial issues and agreed to have the Mediator/Arbitrator issue a consent arbitration award, there was no need to hold a hearing, as there would have been no purpose in doing so. Both parties were notified that the Mediator/Arbitrator would issue a consent arbitration award; he gave them the option to cement the understanding or sleep on it. Both elected to cement the understanding and have the award issued. xi.

Failure to receive confirmation from the parties [ 48 ] The email sent by the Mediator/Arbitrator on October 15, 2015 advised the parties that “we have the recording to double check any of this, but do please confirm this is your understanding of what we did together.” Mr. Dawson states that he failed to provide confirmation in response to this email. His failure to do so was not a pre-requisite to the Award.

This statement by the Mediator/Arbitrator did not modify the agreement the parties reached to “cement” their understanding and permit them, instead, to walk away if they failed to provide their subsequent confirmation. This is apparent from the overall context and the statement in the email that the arrangements reached can be double-checked on the recording. xii. Conclusion [ 49 ] I am satisfied that Mr. Dawson agreed to have the understanding reached in the mediation session on October 15, 2015 incorporated into the Award and that he later changed his mind.

He has not established any grounds to have the Award set aside. In particular, I am satisfied that Mr. Dawson was not treated unfairly or unequally; he was not deprived of the opportunity to present his case or respond to Ms. Dawson’s case; he was given proper notice of the arbitration; and, the process followed by the

Mediator/Arbitrator complied with the Arbitration Act and the Agreement. Mr. Dawson’s application to set aside the Award is dismissed. C. Frustration [ 50 ] Mr. Dawson submits that the Award has been frustrated because it directs payments or transfers that he can no longer make due to the decline in the value of his investments. He relies on the Frustrated Contracts Act , RSA 2000, c F-27, as amended. That Act applies to “a contract…governed by the law of Alberta that…has become impossible of performance or been otherwise frustrated and the parties to which for that reason have been discharged” (s 2(1)).

The Act applies to contracts, not to arbitration awards or court orders, and it is not available to attack the Award. [ 51 ] Moreover, the doctrine of frustration is not applicable in the circumstances in any event. The doctrine of frustration was summarized in Fishman v Wilderness Ridge at Stewart Creek Inc , 2010 ABCA 345 at para 4 : The doctrine of frustration arises in many and varied situations, and it has been described in different ways.

It essentially involves an unforeseen change to the circumstances underlying the contract, through no fault of the parties, that renders the contract incapable of performance. The change of circumstances must be fundamental in nature, such that it goes to the root of the contract. It is not enough that performance has become more difficult; performance must be impossible.

The destruction of the subject of the contract can amount to frustration, but not if the risk of destruction has been allocated in the contract to one of the parties, and not necessarily if the subject of the contract can be replaced. [ 52 ] In that case, the Court concluded that a fire that destroyed a condominium under construction, but that would be covered by insurance and rebuilt with the result that completion was delayed by a year, did not constitute frustration. [ 53 ] In this case, Mr.

Dawson alleges that the Award contemplates a number of payments or transfers that are now impossible for him to make due to market forces. In particular, he refers to a decline in the value of an RRSP account from $115,000 to $76,283 and a drop in his non-registered investment portfolio from $120,000 to $69,791. The evidence before me does not establish that performance by him of these obligations has been rendered impossible; simply that it may have become relatively more expensive. Moreover, Mr.

Dawson’s failure to make the required payment and to transfer certain investments in October 2015, and the resulting increase in the cost to him of doing so now due to market forces that have occurred between then and now, is the result of his own actions. [ 54 ] Mr. Dawson has not established that the Frustrated Contracts Act or the doctrine of frustration applies to the Award or that he would satisfy the requirements for either if they did apply. D. Conclusion [ 55 ] The appeal and application to set aside the Award pursuant to sections 44 and 45 of the Arbitration Act are dismissed.

If the parties are unable to agree on how costs should be addressed then they are at liberty to provide me with their written submissions within 30 days. Heard on the 4 th day of February, 2016. Dated at the City of Calgary, Alberta this 21 st day of March, 2016. J. Strekaf J.C.Q.B.A. Appearances: Ronald S. Foster, Q.C.,Foster LLP for the Applicant Krysta Ostwald, Widdowson Kachur LLP for the Respondent