Administrative law – Decisions of administrative tribunals – Arbitration Board – Judicial review – Jurisdiction of arbitrator – Standard of review – Correctness
Urban E. Homes Ltd. v. Condomium Corp. No. 0313563,  A.J. No. 187, 2013 ABQB 109, Alberta Court of Queen’s Bench, February 15, 2013, R.A. Jerke J.
The Applicant, Urban E. Homes Ltd., constructed a condominium development (“Urban Manor”) in 2003. The Respondent, Condominium Corporation No. 0313563, owned the common property. Urban Homes and the Alberta New Home Warranty Program (the “Program”) provided a warranty to the owners of units at Urban Manor. The condominium common property warranty certificate (the “Certificate”) contained provisions relating to the use of arbitration for the parties to resolve disputes about matters in the Certificate.
There have been several water leaks in Urban Manor and several repairs have been undertaken. In January 2012, the Respondent filed an application to have the application of the warranty adjudicated by way of arbitration with Urban Homes. The Respondent did not seek any relief against the Program and the Program was not a party to the arbitration application. Urban Homes challenged the jurisdiction of the arbitrator and the arbitrator rejected that argument. The arbitrator decided that he had jurisdiction. Urban Homes applied to the Court for a review of the arbitrator’s decision on the issue of jurisdiction.
The Court held that the standard of review was correctness since this was an issue of jurisdiction.
Urban Homes argued that the arbitrator had failed to consider the effect of the mandatory processes outlined in the Certificate. The Court held that the arbitrator considered those provisions but concluded they had no application to this dispute.
The Court next held that the arbitration application related to the warranties provided in the Certificate. The Court held the matters in issue fell within the scope of the arbitration agreement.
The Court considered the Respondent’s failure to comply with mandatory procedures that were to be followed in order to pursue the arbitration process. The Court held that the failure to comply with the mandatory procedures only affected the warranty obligations of the Program. The failure to comply with the mandatory procedures did not negate the warranty obligations of the builder, Urban Homes.
Finally, the Court considered whether conciliation was a mandatory requirement to be fulfilled before arbitration. The Court held that conciliation was not one of the two mandatory conditions for arbitration.
The Court dismissed the application for review and awarded costs to the Respondent.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at email@example.com or review his biography at http://www.harpergrey.com.
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