Twinn v Twinn, 2016 ABQB 553

Court of Queen’s Bench of Alberta Citation: Twinn v Twinn, 2016 ABQB 553 Date: 20161004 Docket: 1503 08727 Registry: Edmonton Between: Catherine Twinn Plaintiff - and - Roland Twinn, Bertha L’Hirondelle, Everett Justin Twin, Margaret Ward and Brian Heidecker Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] Catherine Twinn is a trustee of two Sawridge Band trusts.

She seeks a stay of arbitration/mediation proceedings commenced against her by the other trustees of the trusts. She also seeks remedies concerning the costs of the arbitration/mediation proceedings to date. As an alternative to the stay she seeks, Ms. Twinn asks the Court to impose terms on the conduct of the arbitration/mediation proceedings. Background [ 2 ] Catherine Twinn, Roland Twinn, Bertha L’Hirondelle, Everett Justin Twin and Margaret Ward are the trustees of the 1985 Sawridge Band Inter Vivos Settlement and the 1986 Sawridge Band Inter Vivos Settlement.

Brian Heidecker is the Chair of the boards of trustees but is not himself a trustee. [ 3 ] There is extensive litigation between Catherine Twinn and the Respondents. In 2011, the trustees commenced actions seeking declarations as to the definition of beneficiaries under the terms of each trust. Ms. Twinn is adverse to the positions taken by the

other trustees. In 2014, Ms. Twinn commenced an action challenging the validity of the appointment of two of the Respondent trustees. [ 4 ] The beneficiary actions are proceeding slowly. The validity of appointment action is apparently in its early stages. A special chambers application has been set for November, 2016 to determine whether Ms. Twinn is entitled to be indemnified for her costs in the beneficiary actions.

Her position is that since the trusts are paying the costs of the other trustees (who are apparently in agreement as to how those actions should be resolved), the trusts should be paying her costs as she argues a different position. This cost application appears to be a preliminary step in the beneficiary actions before the merits will be addressed. [ 5 ] The trustees are bound by a Code of Conduct for trustees, signed by all of them on January 12, 2009.

The Code of Conduct provides for a dispute resolution process in the event of complaints about a trustee’s conduct. [ 6 ] In February, 2015 the Respondent Trustees complained about Ms. Twinn’s conduct in her role as trustee. A Code of Conduct mediation/arbitration process was commenced under the terms of the Code of Conduct. [ 7 ] Although there were discussions between the two sides concerning the appointment of a mediator/arbitrator, Ms.

Twinn commenced this action in June, 2015 to stay any mediation/arbitration proceedings against her, pending the outcome of the lawsuits already commenced concerning the beneficiaries of the trusts and the validity of appointment of some of the trustees. [ 8 ] Brian Heidecker filed an application on July 2, 2015 and the Respondent Trustees filed an application on July 6, 2015. These applications sought a stay of the two lawsuits previously commenced by Ms.

Twinn pending the outcome of the Code of Conduct proceedings. [ 9 ] All of the parties’ applications were adjourned to a special chambers application to be heard on January 6, 2016. [ 10 ] An arbitrator was appointed by Mr. Heidecker, but then the process was terminated in August, 2015 because of complaints by Ms. Twinn that the process required by the Code of Conduct had not been properly followed. [ 11 ] A new complaint was made by the Respondent trustees at a trustee meeting on September 16, 2015. At that meeting, Ms.

Twinn advised the other trustees that she had conduct complaints concerning them. [ 12 ] All of the trustees agreed that there would be a special meeting of trustees on November 25, 2015 to discuss the two complaints. Ms. Twinn provided her letter of complaint about the other trustees on November 18, 2015. [ 13 ] Nothing was resolved at the November 25, 2015 special meeting. Following the November 25 meeting, the Respondent trustees brought an application to adjourn the special chambers application set for January 6, 2016. Ms.

Twinn cross-applied for relief and conditions relating to the adjournment of the application. [ 14 ] That application was heard by me on December 16, 2015. [ 15 ] As at that date, neither side had taken steps to appoint an arbitrator or arbitrators to determine the Code of Conduct complaints. [ 16 ] At that application, I was satisfied that the special chambers application was moot, as there were no properly commenced arbitration proceedings by either side under the terms of the Code of Conduct. I cancelled the special chambers application.

I stayed this action, as there was no live Code of Conduct proceeding against Ms. Twinn. While she sought an order that no further Code of Conduct proceedings be commenced until after the determination of the two previous lawsuits, I refused to grant such an order. [ 17 ] I also stayed the Respondents’ application to stay Ms. Twinn’s actions pending completion of the Code of Conduct proceedings, as there was no live Code of Conduct proceeding.

I concluded that their application was premature, and thus moot. [ 18 ] I recognized that the parties were likely to re-commence Code of Conduct proceedings against each other, but declined to issue orders prospectively. Costs were expressly reserved. [ 19 ] The parties were ultimately unable to agree on the form of order; specifically whether the reservation of costs included the December 16 application or whether it related to costs in this action other than those relating to the December 16 application [ 20 ] Ms.

Twinn brought this application returnable May 24, 2016 to settle the terms of the order from the December 16, 2015 application, to stay the pending arbitration proceedings relating to new Code of Conduct complaints, and for various cost remedies. [ 21 ] It appeared that the Respondent trustees had or were in the process of commencing arbitration proceedings relating to their Code of Conduct complaints against Ms. Twinn. [ 22 ] Mr. Heidecker took no position on the current application.

The Respondent trustees argued that there should be no stay of their pending arbitration proceedings. [ 23 ] The applications were argued before me on May 24, 2016. I finalized the form of order arising from the December 16, 2015 application, and reserved on the issue of the stay of arbitration proceedings. [ 24 ] On June 7, 2016, Ms. Twinn’s counsel applied for leave to file additional written submissions in relation to her applications. I agreed to allow the submissions to be filed, and that was done on June 21, 2016. The Respondent trustees filed supplementary submissions on June 30. Mr.

Heidecker took no position. Positions of the Parties

[25] Ms. Twinn argues that the Court should stay the Code of Conduct arbitrations to prevent manifestly unfair or unequaltreatment of a party, as well as to prevent multiple proceedings and avoid inconsistent findings. She cites s 6(

c) of the Arbitration Act,RSA 2000 c A-43, New Era Nutrition Inc. v Balance Bar Co., 2004 ABCA 280 and Olymel SEC v Premium Brands Inc., 2005 ABQB312. [26]

Section 6 of the Arbitration Act provides: 6 No court may intervene in matters governed by this Act, except for the following purposes as provided by this Act: (

a) to assist the arbitration process; (

b) to ensure that an arbitration is carried on in accordance with the arbitration agreement; (

c) to prevent manifestly unfair or unequal treatment of a party to an arbitration agreement; (

d) to enforce awards. [27] Ms. Twinn also relies on s 8 of the Judicature Act, RSA 2000 c J-2 to prevent duplicative proceedings. [28] That

section provides: 8 The Court in the exercise of its jurisdiction in every proceeding pending before it has power to grant and shall grant, either absolutelyor on any reasonable terms and conditions that seem just to the Court, all remedies whatsoever to which any of the parties to theproceeding may appear to be entitled in respect of any and every legal or equitable claim properly brought forward by them in theproceeding, so that as far as possible all matters in controversy between the parties can be completely determined and all multiplicity oflegal proceedings concerning those matters avoided. [29] Ms.

Twinn recognizes that the test for a stay may be governed by the interim injunction tests stated in RJR-MacDonald Inc. vCanada (Attorney General), (SCC), [1994] 1 SCR 311, and cites MacFarlane v MacFarlane, 2016 ABCA 92, tosupport this principle. [30] She expresses concern that if she is removed as a trustee, potential beneficiaries of the trust may lose an advocate “both on theBoard and in the 2011 and 2014 Actions” on the basis that she can only effectively represent them if she is a trustee. [31] Ms. Twinn also argues that:

a) Additional costs of the arbitration proceedings will be borne by the trusts, and will result in additional costs to all beneficiaries;

b) The Code of Conduct complaints include trustees whose appointment has been called into question by Ms. Twinn, and the validityof their appointments should be determined before Code of Conduct arbitration proceedings; and

c) The arbitration proceedings could “undercut the Applicant’s claim to be indemnified for legal costs in her capacity as Trustee”. [32] The Respondent trustees argue that arbitration of a Code of Conduct dispute is mandatory, citing Balancing Pool v TransAltaUtilities Corporation, 2009 ABQB 631.

In that case, Wittmann ACJ (as he then was) stated at para 30 that “once either party invokes thearbitration process, the dispute will necessarily be referred to arbitration and arbitration is mandatory”. [33] He noted at para 31: The court must stay a suit in favour of an arbitration when the plaintiff is a party to the contract for arbitration. It has no choice.

Thereare a few specified exceptions in s. 7(2) (of the Arbitration Act), but none applies here. [34] The Respondent trustees refer to Yaworski v Gowling Lafleur Henderson LLP, 2012 ABQB 424, where the Court stayed theplaintiff’s action because the defendant had invoked an arbitration process. [35] They also cite several cases where the Courts have intervened in trust business where the administration of the trust hasbecome impossible or improbable, or is stalemated, or where there are unacceptable conditions; Re Consiglio, (No 1), 1973 CarswellOnt861 (ONCA), Scott v Scott, (SK KB), [1991] 5 WWR 185 (Sask QB), Dunsdon v Dunsdon, 2012 CSC 1274,Radford v Radford Estate, (ON SC), [2008] CarswellOnt 5297 (ONSC), and Mailing v Conrad, (ONSC). [36] In response to the Applicant’s argument that the arbitration will not be fair, the Respondent trustees note that the Court mayprovide “positive” assistance to the arbitration process to ensure fairness, citing Alenco Inc v Niska Gas Storage US, LLC, 2009 ABQB192. [37] With reference to the RJR-MacDonald tests, the Respondent trustees argue that the first part of the test has not been satisfied,as the Applicant has not demonstrated that there are serious issues to be determined between these parties. [38] With respect to irreparable harm, Ms.

Twinn argues that the harm to her is that her ability to be indemnified for costs may beimpaired if she is no longer a trustee. The Respondent trustees argue that financial harm is not irreparable harm. [39] Ms. Twinn is also concerned that she could lose the ability to advocate for the beneficiaries and potential beneficiaries, whoseinterests she says she represents. [40] She says that “the balance of convenience favours the Applicant, as well as the Beneficiaries. The Defendant Trustees will

only ‘suffer’ a delay in the commencement of the arbitration proceedings while the special chambers application is heard. If the Applicant is ultimately successful at the special chambers application, then the Arbitration will be stayed and the costs associated with it will have been wasted.” [ 41 ] In response to some of these concerns, the Respondent trustees have proposed that the trusts pay Ms. Twinn’s legal costs (past and future) in relation to the Code of Conduct proceedings, and that they will consent to Ms.

Twinn continuing to participate in the two beneficiary actions even if she is removed as a trustee as a result of the Code of Conduct proceedings. [ 42 ] Ms. Twinn responded to this proposal objecting to the scope of the costs the Respondent trustees were prepared to authorize; specifically the costs of this action as opposed to the costs of the Code of Conduct arbitrations. [ 43 ] The Respondent trustees also argue that it is not clear that the Applicant could not be indemnified in the other actions, citing Re Gunn Estate , 2010 PECA 13 .

The Applicant is a beneficiary of the trusts, so has other avenues of recourse available to her if she is removed as a trustee. Analysis [ 44 ] The Applicant relies heavily on s 6(

c) of the Arbitration Act as well as the New Era Nutrition Inc. and Olymel SEC cases. [ 45 ] S 6(

c) of the Arbitration Act provides: 6 No court may intervene in matters governed by this Act, except for the following purposes as provided by this Act: (

c) to prevent manifestly unfair or unequal treatment of a party to an arbitration agreement... [ 46 ] Much of the Applicant’s argument focuses on unfairness or unequal treatment of the Applicant by virtue of the Code of Conduct proceedings. I will deal with those under the tests for a stay discussed below. [ 47 ] The New Era Nutrition Inc. case makes it clear that the Court will in appropriate cases stay arbitration proceedings. There, Conrad JA stated at para 3 : [3] The legislative intent behind

section 7 of the Arbitration Act is to discourage duplicitous proceedings where there are overlapping matters that cannot be reasonably divided. I am satisfied that where one party has both sued and arbitrated the same issues, it would be manifestly unfair to deny the other party the remedy contemplated by statute where the matters in dispute cannot be reasonably separated. In my view, the other party can apply under

section 6 (

c) of the Arbitration Act to stay the arbitration rather than make an application under

section 7 for a remedy it does not want, and does not think appropriate – namely, to stay the litigation. Multiple proceedings in the circumstances here could involve far more than the mere “inconvenience” of having witnesses participate in two proceedings. The chambers justice should have determined whether the overlapping matters could be reasonably separated. [ 48 ] There, New Era invoked the arbitration provisions of the parties’ Product Development and Distribution Agreement.

It had already commenced legal proceedings seeking damages for breach of contract, tort and breach of copyright. [ 49 ] The Court noted (at para 9) that the civil suit sought some of the same declarations as it sought in the arbitration proceedings. [ 50 ] Ultimately, the Court held at para 43: [43] I take all of these factors to mean that the Legislature intended that the courts use subsection 6 (

c) to provide a remedy to cure unfairness arising from matters not covered by the specific language of the legislation. In my view, it would be manifestly unfair to deny the remedy contemplated by

section 7 which is designed to protect against the dangers inherent in duplicitous proceedings. It is an uncommon situation where a party seeks to both sue and arbitrate. Frequently the dangers inherent in duplicitous actions arise when some parties are covered by an arbitration clause and others are not. I am satisfied that subsection 6(

c) allows a party, faced with both a statement of claim and a notice to arbitrate, to apply to stay the arbitration on the basis that the matters in the two proceedings overlap and cannot be reasonably separated.

To avoid the difficulties encountered by the parties here, an application for this relief should be made at an early date. [ 51 ] The essence of the decision staying the arbitration was to prevent the risk of contrary findings in proceedings with overlapping subject matters, as well as the inconvenience of the cost and having to participate in two proceedings. [ 52 ] The case at bar is entirely different. The Respondent trustees commenced arbitration proceedings against the Applicant.

There does not appear to be any overlap with the lawsuits commenced by the Applicant before the Code of Conduct proceedings against her were commenced. It was the Applicant who commenced this action against the Respondent trustees, after the arbitration proceedings were commenced. [ 53 ] Since I do not see that the proceedings overlap, New Era would not seem to have any bearing on this case. [ 54 ] As for Olymel SEC , the dispute was whether or not the agreement between the parties mandated arbitration instead of litigation, such that the plaintiff’s lawsuit should be stayed.

Erb J refused to stay the lawsuit, holding that not all of the issues could be determined in the arbitration. She concluded that the lawsuit was the process that allowed all of the issues to be determined, especially because there was a third party involved in the litigation, not subject to the arbitration proceedings. [ 55 ] That case turned on overlap between the proceedings. Since there is no obvious overlap here, this case is of no assistance to the Applicant.

[56] Thus the issues here need to be decided on the principles governing stays of proceedings. [57] Stays of proceedings are generally governed by the same principles as are interlocutory injunctions (RJR-MacDonald at para46, citing Manitoba (Attorney General) v Metropolitan Stores (MTS) Ltd., (SCC), [1987] 1 SCR 110. The test asdescribed in RJR-MacDonald requires the applicant to:

a) Demonstrate a serious question to be tried;

b) Convince the court that it will suffer irreparable harm if the relief is not granted; and

c) Demonstrate that it will suffer the greater inconvenience if the relief is not granted (at paras 83 – 85). Serious question to be tried [58] I am satisfied that there are indeed serious questions to be tried between the parties. The applications before me are only asmall part of a larger battle between the two trustee camps. This part of the test is satisfied. [59] The Applicant seeks the removal of two of the Respondent trustees in one of the existing lawsuits.

The Respondent trusteeshave responded by commencing Code of Conduct proceedings against the Applicant, seeking her removal. [60] The Applicant has also commenced Code of Conduct proceedings against the Respondent trustees. I assume that theallegations in her Code of Conduct complaint includes aspects of her lawsuit relating to the disqualification of two of the trustees. [61] I have no details as to the nature of the complaints against the trustees. Removing trustees has significant consequences to theadministration of the trust.

No one is suggesting that the competing complaints are frivolous. [62] These are matters that need to be decided so that ongoing administration of the trusts can continue. Irreparable harm [63] I do not see that the Applicant has demonstrated that she will suffer irreparable harm if the arbitration proceeds. [64] The only evidence on the subject of financial harm is Ms. Twinn’s argument that “there is only so much personal legalexpense that the Applicant is able to sustain.” No evidence has been put forward as to Ms.

Twinn’s financial capacity, and it seems clearthat the trusts will be able to pay any amount of costs ordered against them. [65] Ms. Twinn does not say that she is unable to fund the ongoing costs of these various disputes. [66] As for her argument that if she is removed as a trustee, her ability to be indemnified for costs in the various lawsuits she hasbrought or defended in her capacity as a trustee, this again is a financial argument. It is by no means clear that her ability to beindemnified would be compromised. She commenced or defended the various actions while a trustee.

The Respondent trusteesacknowledge that they will not object to her continuing with those lawsuits if she is removed as a trustee. [67] Ms. Twinn is also a beneficiary of the trusts and has rights and remedies in that capacity. The Court has a broad discretionregarding costs. If her positions are ultimately successful, she has a reasonable prospect of recovering sizeable costs.

Even if she isunsuccessful but is found to have acted reasonably and in good faith in the lawsuits, she may still have a strong argument in favour ofbeing awarded substantial costs. [68] I do not see that these financial fears satisfy the “irreparable harm” test. [69] Regarding the Applicant’s argument that she may be disadvantaged in being able to represent the interests of the beneficiaries(or potential beneficiaries) she is arguing for, the Respondent trustees have satisfied that concern by confirming that the Applicant willbe entitled to continue in those lawsuits even if she is removed as a trustee.

Balance of inconvenience [70] As I have found no irreparable harm, it is unnecessary for me to assess the balance of convenience or inconvenience.Nevertheless, if I am mistaken as to irreparable harm, I should complete the analysis as to the balance of convenience and do so here. [71] If I understand the Applicant’s position correctly, she seeks to stay proceedings which may have her removed as a trustee untilthe other lawsuits have been concluded.

She has her own lawsuit against two of the Respondent trustees seeking their removal, which isnot proposed to be stayed. [72] The Applicant argues that the only inconvenience to the Respondent trustees is delay in pursuing her ouster. [73] I cannot see that the balance of convenience or inconvenience favors a freezing of the Applicant’s position as trustee. Thetrusts are ongoing and presumably have ongoing administration issues. [74] The Applicant’s lawsuits are in the early stages. I am mindful of the delays inherent in litigation. These delays are exacerbatedby the current shortage in judicial resources.

If the lawsuits are to be tried, it is likely that the trial of the actions will be some years down

the road. Civil lawsuits that are ready for trial are unlikely to be tried in Edmonton before late 2017, at the earliest. [ 75 ] The actions here are in their early stages, and are a long way away from being ready for trial. So trials in 2017 are unlikely. [ 76 ] On the other hand, arbitrations can be conducted expeditiously. There may be limited document disclosure and limited questioning.

Private arbitrators are frequently available on short notice. [ 77 ] The arbitration of Code of Conduct complaints can be accomplished in a matter of months, not years. [ 78 ] To the extent that the Applicant’s disqualification lawsuit is not subsumed in her Code of Conduct complaints, she may pursue those proceedings through the courts. It appears, however, that she wants to have the issues there decided in comprehensive arbitration proceedings, if the arbitration is not stayed.

The Respondent trustees appear agreeable to that, although take the position that some of the issues the Applicant has raised are not the proper subject of Code of Conduct arbitration proceedings. [ 79 ] I leave that issue to be resolved in the first instances by the parties in their discussions, and next by the arbitrator. Ultimately, non-arbitrable issues may have to proceed through the litigation process, but again that would not appear to result in an overlap of issues. [ 80 ] The Applicant is a party to the Code of Conduct. She agreed to the arbitration provisions contained in it.

It provides an expedient manner of resolving conduct issues. The Applicant has not satisfied me that the balance of convenience favours staying the arbitration proceedings under the Code of Conduct. [ 81 ] As for arguments that the arbitration proceedings will be expensive and will deplete the funds available to the beneficiaries, the size of the trusts and the importance of the issues in the various lawsuits outweigh concerns over the costs of arbitration proceedings over who should be trustees of the trusts.

Section 6(

c) of the Arbitration Act [ 82 ] It should be obvious from my conclusions on the issues of irreparable harm and balance of inconvenience that the Applicant has failed to establish that the arbitration proceedings under the Code of Conduct would be manifestly unfair to her, or would provide unequal treatment to her. The only element of unequal treatment is the issue of payment of legal expenses, and this concern has been overcome by the Respondent trustees’ agreement to reimburse the Applicant’s legal costs on the same basis as theirs will be reimbursed to them.

Conclusion [ 83 ] The Applicant’s application to stay the Code of Conduct proceedings is dismissed. The Code of Conduct proceedings should proceed in accordance with the provisions of the Code of Conduct, subject to the terms offered by the Respondent trustees, namely that: a. The complaints of all Trustees will be heard by the same mediator/arbitrator at the Code of Conduct Process. All Trustees may amend their complaints to include additional complaints, within one month prior to the commencement of the Code of Conduct Process. b.

The Applicant will submit names of two potential mediators/arbitrators to the Respondent Trustees within two weeks of the entry of this Order. If one of the nominees is acceptable to the Respondent Trustees, then they will notify the Applicant. The Respondent Trustees will submit names of two potential mediators/arbitrators to the Applicant within two weeks of receipt of the Applicant’s nominees. The Applicant will notify the Respondent Trustees if any of the Respondent Trustees’ nominees are acceptable within two weeks of receipt of the names of the nominees.

If no agreement is reached, the parties will submit the four names of the nominee mediators/arbitrators to Mr. Justice Graesser in a joint letter, with Mr. Justice Graesser to choose the mediator/arbitrator. c. Any Trustees removed at the Code of Conduct Process will continue to have the right to fully participate in Queen’s Bench Actions 1103 14112 and 1403 04885 in the same manner as if they were still a Trustee. d. All Trustees will be fully indemnified from the Trusts for their future reasonable legal costs of participation in the Code of Conduct Process on a solicitor and client basis.

Their Bills of Costs may be submitted on a monthly or other periodic basis to the Arbitrator for approval. The Bills of Costs may be redacted to exclude privileged references. The Mediator/Arbitrator’s decision will be final. [ 84 ] I do not have jurisdiction to order that the Applicant’s disqualification proceedings against two of the trustees be dealt with by arbitration. That appears to be what both sides want, and I encourage them to agree to the terms necessary to include that dispute in the arbitration.

That appears efficient and economic. [ 85 ] To the extent that trustee qualifications (as raised in the Applicant’s disqualification claim) are not agreed to become the subject of Code of Conduct proceedings, they must remain in the Applicant’s lawsuit. [ 86 ] If the issues raised by the Applicant are agreed be included in Code of Conduct proceedings, Ms.

Twinn should amend her complaint against the Respondent trustees accordingly. [ 87 ] No manifest unfairness or unequal treatment of the Applicant by reason of the arbitration proceedings have been made out. [ 88 ] With respect to the costs of these proceedings to date, I see a difference between Code of Conduct proceedings themselves and litigation to stop or stay the Code of Conduct proceedings.

It is manifestly unfair that the Respondent trustees have been reimbursed their legal fees for commencing Code of Conduct proceedings and then abandoning them when the Applicant objected and was required to commence this action to stop them, without the Applicant being reimbursed her costs in opposing the Code of Conduct proceedings.

These are costs relevant to this action, and not strictly within the scope of the Code of Conduct proceedings. [ 89 ] I conclude that the Applicant should have her legal costs reimbursed for steps taken in the abandoned Code of Conduct proceedings, as well as in this action, to the point of the application before me in December, 2015. [ 90 ] I awarded no one costs of the December, 2015 application, finding that the application was an abuse of process. The Applicant has been unsuccessful in this application, but for the concessions made by the Respondent trustees. I do not award her any costs of this application.

However, because the Respondent trustees are being reimbursed their legal expenses by the trusts, I do not consider it appropriate that the Applicant be required to reimburse the trusts for any costs expended in opposing this application. [ 91 ] If the parties cannot agree on the quantum of the costs I have ordered, they may contact me to discuss a process to resolve any dispute. [ 92 ] The above conditions address the Applicant’s procedural concerns as to legal costs, hearing the competing complaints at the same time and by the same arbitrator, and as to a fair process for the selection and appointment of the arbitrator. [ 93 ] As for amendment of existing complaints and adding additional allegations, the trusts are ongoing entities, and I expect that issues may arise from time to time.

The proper place to determine these issues is under the Code of Conduct. For the purposes of the presently contemplated proceedings, it seems to me that the parties should agree on a date by which all amendments will be put forward. If they cannot agree on a date, I will set a date if the arbitrator has not yet been appointed. If the arbitrator has been appointed, procedural issues and deadlines for the arbitration will be in his or her jurisdiction and not mine, subject to the provisions of s 6 of the Arbitration Act . Heard on the 24 th day of May and the 21 st day of June, 2016.

Dated at the City of Edmonton, Alberta, this 4 th day of October, 2016. Robert A. Graesser J.C.Q.B.A. Appearances: Brian P. Kaliel, QC and Scott Sherlock Miller Thomson LLP for the Plaintiff Nancy E. Cumming, QC and Joseph Kueber, QC Bryan & Company LLP for the Defendants Roland Twinn, Bertha L’Hirondelle, Everett Justin Twin and Margaret Ward Barbara J. Stratton, QC Bennett Jones LLP

for the Defendant Brian Heidecker (did not appear on the applications)