2129752 Manitoba Ltd. v. Domo Gasoline Corp., (2014) 306 Man.R.(2d) 313 (CA)

• Judge: Mainella, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: July 10, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 306 Man.R.(2d) 313 (CA);2014 MBCA 76

2129752 Man. v. Domo Gasoline (2014), 306 Man.R.(2d) 313 (CA);

      604 W.A.C. 313

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. SE.002

Domo Gasoline Corporation Ltd. (applicant/respondent) v. 2129752 Manitoba Ltd. (respondent/applicant)

(AI 14-30-08181; 2014 MBCA 76)

Indexed As: 2129752 Manitoba Ltd. v. Domo Gasoline Corp.

Manitoba Court of Appeal

Mainella, J.A.

August 20, 2014.

Summary:

Since 1989, Domo Gasoline Corp. had operated a gas bar on leased property. The lease provided for additional rent payable on gross sales of products other than gasoline unless these were designated as promotional products. A 2009 audit by the lessor revealed that additional rent had not been paid on sales of cigarettes and other products as these had been designated as promotional products by Domo. In January 2010, the lessor sent a notice of default on the lease to Domo. In April 2010, the lessor applied for leave under s. 14 of the Limitation of Actions Act to issue a statement of claim notwithstanding the six year limitation period. Greenberg, J., held that the s. 14 application was to be heard by an arbitrator. In September 2011, the lessor issued a notice of arbitration. The arbitrator allowed the s. 14 application and ordered Domo to pay rent arrears back to 1989. Domo sought leave to appeal under s. 44(2) of the Arbitration Act.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 297 Man.R.(2d) 254, allowed the application in part. Leave to appeal was granted on two questions. The appeal proceeded.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 305 Man.R.(2d) 177, allowed the appeal in part, remitting the matter to the arbitrator with directions. The lessor sought leave to appeal under s. 48 of the Arbitration Act.

The Manitoba Court of Appeal, per Mainella, J.A., dismissed the application.

Editor's Note: For the decision determining that the Limitation of Actions application was to be heard by an arbitrator, see (2011), 267 Man.R.(2d) 217.

Arbitration - Topic 7902

Judicial review (incl. appeals) - Jurisdiction of the courts - Discretionary powers - [See second Arbitration - Topic 8701 ].

Arbitration - Topic 7915

Judicial review (incl. appeals) - Jurisdiction of the courts - Power to review and remit an award - [See second Arbitration - Topic 8701 ].

Arbitration - Topic 8301.1

Judicial review (incl. appeals) - Grounds - General - Questions of law - [See second Arbitration - Topic 8701 ].

Arbitration - Topic 8701

Judicial review (incl. appeals) - Practice - Appeals - Leave to appeal or right to appeal - Since 1989, Domo Gasoline Corp. had operated a gas bar on leased property - The lease provided for additional rent payable on gross sales of products other than gasoline unless these were designated as promotional products - A 2009 audit revealed that additional rent had not been paid on sales of cigarettes and other products - An arbitrator ordered Domo to pay rent arrears back to 1989 - On Domo's appeal, Rempel, J., held that the arbitrator had erred in holding that Domo had been selling cigarettes at an undiscounted price in the absence of evidence as to how Domo priced cigarettes - The matter was returned to the arbitrator with directions to hear evidence as to Domo's cigarette prices in order to determine whether the pricing strategy met the test for "promotional sales" as established in the arbitration award - The lessor sought leave to appeal under s. 48 of the Arbitration Act, asserting, inter alia, that Rempel, J., had misapprehended or misinterpreted the arbitrator's reasons - The Manitoba Court of Appeal, per Mainella, J.A., dismissed the application - While the lessor had a reasonable prospect of success on this ground of appeal, the question did not raise a matter of sufficient importance to warrant consideration by the Court of Appeal nor was the lessor unfairly prejudiced by Rempel, J.'s decision - The decision had not overturned the award or disposed of the arbitration in Domo's favour - See paragraphs 23 to 31.

Arbitration - Topic 8701

Judicial review (incl. appeals) - Practice - Appeals - Leave to appeal or right to appeal - Since 1989, Domo Gasoline Corp. had operated a gas bar on leased property - The lease provided for additional rent payable on gross sales of products other than gasoline unless these were designated as promotional products - A 2009 audit revealed that additional rent had not been paid on sales of cigarettes and other products - An arbitrator ordered Domo to pay rent arrears back to 1989 - On Domo's appeal, Rempel, J., held that the arbitrator had erred in holding that Domo had been selling cigarettes at an undiscounted price in the absence of evidence as to how Domo priced cigarettes - The matter was returned to the arbitrator with directions to hear evidence as to Domo's cigarette prices in order to determine whether the pricing strategy met the test for "promotional sales" as established in the arbitration award - The lessor sought leave to appeal under s. 48 of the Arbitration Act, asserting, inter alia, that Rempel, J., had improperly reopened the arbitration to allow the calling of further evidence - The Manitoba Court of Appeal, per Mainella, J.A., dismissed the application - The court agreed with the lessor that it would have been better for Rempel, J., to have sought clarification from the arbitrator under s. 44(3) of the Act before deciding the appeal - Such an approach would have been in keeping with the Act's general philosophy against court intervention in the arbitration process - However, the decision was a discretionary one - No pure question of law or jurisdiction arose on which leave to appeal to the Court of Appeal could be granted - See paragraphs 32 and 33.

Arbitration - Topic 8701

Judicial review (incl. appeals) - Practice - Appeals - Leave to appeal or right to appeal - Since 1989, Domo Gasoline Corp. had operated a gas bar on leased property - The lease provided for additional rent payable on gross sales of products other than gasoline unless these were designated as promotional products - A 2009 audit revealed that additional rent had not been paid on sales of cigarettes and other products - An arbitrator ordered Domo to pay rent arrears back to 1989 - On Domo's appeal, Rempel, J., held that the arbitrator had erred in holding that Domo had been selling cigarettes at an undiscounted price in the absence of evidence as to how Domo priced cigarettes - The matter was returned to the arbitrator with directions to hear evidence as to Domo's cigarette prices in order to determine whether the pricing strategy met the test for "promotional sales" as established in the arbitration award - The lessor sought leave to appeal under s. 48 of the Arbitration Act, asserting, inter alia, that Rempel, J., had improperly reopened the arbitration to allow the calling of further evidence - The Manitoba Court of Appeal, per Mainella, J.A., dismissed the application - The court agreed with the lessor that litigants were expected to exhaust their evidence at the first opportunity - However, the question of whether Rempel, J., should have remitted the matter to the arbitrator did not involve a matter of sufficient public importance to warrant consideration by the Court of Appeal - The decision did not endanger the values of finality and fairness - The implication of the decision was modest - Rempel's, J.'s order recognized that the arbitrator, alone, was to determine the relevance of the cigarette pricing to his award - The order was circumscribed by its wording - The lessor's concern that the entire arbitration had been reopened was not persuasive - See paragraphs 34 to 51.

Cases Noticed:

Rolling River School Division v. Rolling River Teachers' Association of the Manitoba Teachers' Society et al. (2009), 236 Man.R.(2d) 249; 448 W.A.C. 249; 2009 MBCA 38, refd to. [para. 2].

Winnipeg Airports Authority Inc. v. EllisDon Corp. (2011), 268 Man.R.(2d) 66; 520 W.A.C. 66; 2011 MBCA 51, refd to. [para. 23].

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 24].

King v. Operating Engineers Training Institute of Manitoba Inc. (2011), 270 Man.R.(2d) 63; 524 W.A.C. 63; 2011 MBCA 80, refd to. [para. 24].

Lake Louise Limited Partnership v. Canad Corp. of Manitoba Ltd. et al. (2014), 306 Man.R.(2d) 205; 604 W.A.C. 205; 2014 MBCA 61, refd to. [para. 24].

Hayes Forest Services Ltd. v. Weyerhaeuser Co. (2008), 250 B.C.A.C. 286; 416 W.A.C. 286; 2008 BCCA 31, refd to. [para. 25].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 27].

Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257 (B.C.C.A.), refd to. [para. 40].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 40].

Statutes Noticed:

Arbitration Act, S.M. 1997, c. 4; C.C.S.M., c. A-120, sect. 44(3) [para. 32].

Counsel:

P. Halamandaris and S. Garfinkel, for the applicant;

D.G. Hill, for the respondent.

This application was heard in Chambers on July 10, 2014, by Mainella, J.A., of the Manitoba Court of Appeal, who pronounced the following decision on August 20, 2014.