Central Okanagan (Regional District) v. Westbank Indian Band et al., (1996) 71 B.C.A.C. 206 (CA)

• Judge: Hinds, Hollinrake and Williams, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 02, 1996
• Jurisdiction: British Columbia
• Citations: (1996), 71 B.C.A.C. 206 (CA)

Cent. Okanagan v. Westbank Band (1996), 71 B.C.A.C. 206 (CA);

    117 W.A.C. 206

MLB headnote and full text

Regional District of Central Okanagan (petitioner/respondent) v. Westbank Indian Band (respondent/appellant) and Her Majesty The Queen in Right of Canada as Represented by The Minister of Indian Affairs and Northern Development (respondent/respondent)

(V02597)

Indexed As: Central Okanagan (Regional District) v. Westbank Indian Band et al.

British Columbia Court of Appeal

Hinds, Hollinrake and Williams, JJ.A.

February 26, 1996.

Summary:

A regional district entered into an agree­ment with an Indian band for the provision of municipal services to the band. The dis­trict gave notice of arbitration under the agreement for resolution of a "dispute". The band refused to agree to the appointment of an arbitrator. The district petitioned for appointment of an arbitrator. A Chambers judge allowed the petition. The Indian band appealed.

The British Columbia Court of Appeal allowed the appeal and set aside the order of the Chambers judge.

Arbitration - Topic 3543.1

The arbitrator - Appointment - By court - Bars - Matter not fit for arbitration - An Indian band and regional district entered into an agreement for the provision of municipal services to the band - The agreement contained an arbitration clause governing all disputes involving interpre­tation of the agreement - The district sought to arbitrate the "dispute" of whether it was entitled to increase the cost of ser­vices - The British Columbia Court of Appeal held that this was not an arbitrable issue but an attempt to renegotiate or unilaterally amend one of the important terms in the agreement.

Arbitration - Topic 7909

Judicial review - Jurisdiction of the courts - Effect of an agreement to arbitrate - The British Columbia Court of Appeal agreed that courts ought not to interfere where the parties have chosen arbitration as a dispute resolution mechanism, unless there is a "clear reason" - However, absent a statu­tory provision empowering the arbitration board to determine its own jurisdiction or the issue of arbitrability, it is surely for the court, upon application, to determine whether the issue raised as a "disagree­ment" under the agreement, or an interpre­tation of the terms of the agreement, is, or is not, a matter which falls within the arbitration clause - See paragraphs 34 to 39.

Arbitration - Topic 7951

Judicial review - Jurisdiction of arbitrator - To determine arbitrability of grievance - [See Arbitration - Topic 7909 ].

Cases Noticed:

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 22].

New Brunswick v. O'Leary, [1995] 2 S.C.R. 967; 183 N.R. 229; 163 N.B.R.(2d) 97; 419 A.P.R. 97, refd to. [para. 22].

Cascade Builders Ltd. v. Alberta Govern­ment Telephones (1976), 1 A.R. 257 (T.D.), refd to. [para. 22].

Globe Union Industrial Corp. v. G.A.P. Marketing Corp., [1995] 2 W.W.R. 696; 100 B.C.L.R.(2d) 41 (S.C.), refd to. [para. 22].

Statutes Noticed:

Municipal Act, R.S.B.C. 1979, c. 290, sect. 808(3) [para. 19].

Self Government Enabling Act, S.B.C. 1990, c. 52, sect. 37 [para. 30].

Counsel:

J. Woodward and P. Hutchings, for the appellant, Westbank;

G. McDannold, for the respondent, Central Okanagan.

This appeal was heard in Vancouver, British Columbia, on February 2, 1996, before Hinds, Hollinrake and Williams, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Williams, J.A., on February 26, 1996.