IN THE SUPREME COURT OF BRITISH COLUMBIA
IRONWOOD DEVELOPMENTS LTD.
(Petitioner)
V
GREAT PACIFIC INDUSTRIES INC.
(Respondent)
Introduction
[1] The petitioner, Ironwood Developments Ltd. (“Ironwood”), applies for leave to appeal the arbitration award of Gary Snarch (“arbitrator”) dated December 13, 2018. The petitioner also seeks an order granting the appeal and amending the award.
[2] The respondent is Great Pacific Industries Inc., now Save-On-Foods Limited Partnership (“Save-On-Foods”). Ironwood leases a commercial property in the shopping plaza it owns to Save-On-Foods.
[3] The commercial lease between the parties expired in July 2018. A dispute arose regarding its renewal. The parties could not agree upon the minimum rent payable by Save-On-Foods to Ironwood and entered into an arbitration agreement to settle the issue. In making his decision, the arbitrator had to consider a comparable property lease to determine the Net Effective Rental (“NER”) rate.
[4] The petitioner says that the arbitrator erred by failing to consider the specific terms of the comparable property’s lease in reaching his conclusion on its NER rate. The petitioner argues that this error is a pure question of law for which leave to appeal should be granted.
[5] There are two issues in this appeal. First, should leave be granted? I must determine whether there is a pure question of law which would permit an appeal, or whether it is a question of mixed fact and law to which an appeal is not available under the Arbitration Act, R.S.B.C. 1996, c. 55 (“Arbitration Act”). Second, if leave is granted, should the appeal be considered on its merits?
[6] If I am unwilling to consider the appeal on its merits, the petitioner requests that I remit the matter back to the arbitrator with my determination on the question of law.
[7] The premises in question is a 35,514 square foot commercial property
(the “premises”) operating as a Save-On-Foods grocery store. It is located in the Ironwood Plaza Shopping Centre at 3000-11666 Steveston Highway, Richmond, BC.
[8] The parties entered into a commercial lease on July 4, 1998 for a 20-year term, whereby Save‑On‑Foods leased the property from Ironwood to operate a retail grocery store.
[9] Section 20.1 of the lease grants the respondent the option to renew the lease for two successive terms of five years each. Save-On-Foods exercised this option to renew the lease past the initial 20-year term through to 2023. The minimum rent to be paid is governed by s. 20.2, which sets out how to determine the rental value. It provides that if the parties cannot agree on the minimum rent, the dispute will be resolved by an arbitrator under the Arbitration Act.
[10] The parties submitted their dispute regarding the minimum rent to the arbitrator. He rendered his decision on December 13, 2018. He determined that the appropriate rent was one that landed between the two parties’ respective positions. He quantified the minimum rent as $27.00 per square foot per annum.
[11] The arbitrator provided background on the property and the following overview:
The Arbitration is to determine the Minimum Rent (as that term is defined in the Lease) for the five year renewal term commencing on June 7, 2018 (the “Effective Date of Renewal”) by analysing the current market rental value for premises comparable to the Subject Property in size, age, and use in the Richmond area. The tenant has exercised the five year renewal option.
The… NER for the subject property from 2014 to 2018 was $14.50 per square foot per annum, a stepped rent that was negotiated in 1998.
The Landlord’s position is that the NER for the Subject Property as of the Effective Date of Renewal is $33 per square foot per annum and the Tenant’s position is that the NER value is $22 per square foot per annum.
[12] The arbitrator was presented with two expert appraisal reports that canvassed the rental rates of a number of comparable properties. After making appropriate qualitative adjustments, meaning adjustments for factors such as store size, location, and ease of access and quantitative adjustments, meaning a time adjustment for rents negotiated in years past, these experts offered their opinions on the fair market rent for the premises.
[13] The arbitrator identified two issues: 1) the applicability of the quantitative adjustments used by the experts and 2) the applicability of the qualitative adjustments used by the experts.
[14] Each expert relied on a number of comparable properties in coming to their opinion. Both experts relied on another Save-On-Foods located at 3471 Moncton Street, Richmond, BC (“Moncton Street”). The respondent’s expert alone relied on a different Save-On-Foods located in the Terra Nova Shopping Centre at 3673 Westminster Highway, Richmond, BC (“Terra Nova”).
[15] The arbitrator concluded that he could only rely on these two comparable properties to determine the minimum rent for the premises.
[16] The arbitrator found that he did not need to engage in a quantitative adjustment, because the leases for the two comparable properties were renewed in the current time period. He held that applying qualitative adjustments, to both Terra Nova and Moncton Street was more reliable in determining minimum rent.
[17] The Terra Nova tenant agreed to spend $1.5 million in renovations for its store during the term of its comparable lease. Whether or not this expenditure should be factored into Terra Nova’s NER rate was a primary issue at arbitration.
[18] On the first day of the hearing the arbitrator asked whether all or any portion of the $1.5 million should be added to Terra Nova’s average rent of $21.20 per square foot per annum. Save-On-Foods took the position that it should not be factored into the NER rate, whereas Ironwood said the opposite.
[19] Save-On-Foods produced the Terra Nova lease and modification of lease agreements at the arbitration. Mr. Picard, Vice President of Real Estate for Save-On-Foods, was permitted to testify regarding the $1.5 million renovation. He testified that the money had not yet been spent at Terra Nova, but the project would be a “refresh”. This meant that the money would not be spent on improving the landlord’s asset, but on fixtures Terra Nova would remove at the end of the lease (such as interior signage and décor). Save-On-Foods argued these fixtures would be “tenant’s trade fixtures” as defined in article 10.2 of the Terra Nova lease.
[20] Ironwood’s position was that the $1.5 million expenditure was a direct financial benefit to the landlord and would consequently affect the NER rate for the ten-year renewal term. Ironwood sought and obtained leave to recall its expert, Mr. Wong, to respond to Mr. Picard’s testimony. The arbitrator summarized his evidence at para. 66 as follows:
…Mr. Wong’s evidence was that, if the $1.5 million were not considered Tenant’s Trade Fixtures as defined under the lease (i.e. could not be taken out by the tenant at the end of the lease term), the NER amortized over the 10 year renewal term would be $27.20 per square foot per annum (as opposed to $21.20). Alternatively, and at a minimum, counsel argued that it must have played a role in determining the rent, especially when one considers Article 3.2(b) of the Terra Nova lease which references the percentage rent to which the landlord is entitled…
[21] At para. 70, the arbitrator stated that a great deal of time in closing submissions was spent on the interpretation of articles 1.1(z) and 10.2 of the Terra Nova lease, the tenant’s trade fixtures, and their effect on s. 5(a) of the modification of lease. At para. 72, he queried what effect Terra Nova not doing the refresh would have on the five-year renewal term beginning in 2019.
[22] The arbitrator reproduced several sections of the modification of lease agreement. He did not reproduce s. 6, which refers to what occurs if the tenant does not complete the $1.5 million renovation.
[23] Sections 4 to 6 of the modification of lease agreement provide:
4. The Minimum Rent payable (per annum) during the renewed portion of the Term will be the amount determined by multiplying the Ground Floor Area by the following amounts:
(a) for the period of May 16, 2019 to May 15, 2021: $20.00 per square foot;
(b) for the period of May 16, 2021 to May 15, 2024: $22.00 per square foot;
(c) for the period of May 16, 2024 to May 15, 2026: $25.00 per square foot; and
(d) for the period of May 16, 2026 to May 15, 2029: $27.00 per square foot.
5.
(a) The Tenant shall perform a renovation of the Leased Premises (the “Renovation”), which Renovation must be undertaken in accordance with the terms and conditions of the Lease (including but not limited to Paragraph 10.1 of the Lease). The Renovation shall be completed by no later than December 31, 2020 (the “Deadline”). The Tenant hereby agrees that the Renovation shall be completed by the Tenant: (i) at its sole cost and expenses; (ii) in accordance with all applicable laws and the applicable provisions of the Lease; (iii) in a good and workmanlike manner; and (iv) shall constitute an investment by the Tenant directly into the Leased Premises of not less than One Million Five Hundred Thousand Dollars ($1,500,000.00), excluding applicable taxes (the “Threshold”).
(b) The Tenant will (using commercially reasonable efforts) provide the Landlord, on a prompt and timely basis after completion of the Renovation, a letter (the “Letter”) [confirming the completion and actual costs of the renovation]…
6. Notwithstanding anything to the contrary contained in the Lease or this Agreement, if Landlord proves in a court of competent jurisdiction that Tenant has failed to provide the Letter on a prompt and timely basis after completion of the Renovation in accordance with Paragraph 5(b) above, then:
…
(b) The Tenant shall be deemed to have exercised its first option to renew the Term of the Lease, leaving Tenant with only one remaining option to renew the Term of the Lease for a term of 5 years;
(c) Paragraph 3 of this Agreement shall be deleted and replaced with the following:
“3. Pursuant to Paragraph 20.1 of the Lease, the Tenant hereby notifies the Landlord that the Tenant is exercising the first option to renew the Term of the Lease, as stated in Paragraph 20.1 of the Lease, for total additional period of five (5) years (commencing May 16, 2019, through to and including May 15, 2024) and the Landlord hereby acknowledges having received from the Tenant the notice required pursuant to Paragraph 20.1 of the Lease. For clarity, subsequent to the aforementioned exercise, one option to renew this Lease for an additional term of 5 years remains.”
(d) Paragraph 4 of this Agreement shall be deleted and replaced with the following:
“4. The Minimum Rent payable (per annum) during the renewed portion of the Term will be the amount determined by multiplying the Ground Floor Area by the following amounts:
(a) for the period of May 16, 2019 to May 15, 2021: $20.00 per square foot; and
(b) for the period of May 16, 2021 to May 15, 2024: $22.00 per square foot.”
[24] The arbitrator set out Save-On-Foods’ submissions regarding the effect on the five-year renewal if the tenant did not do the refresh at Terra Nova. Referring to s. 6 of the modification of lease agreement, Save-On-Foods stated that the consequence would be that the Terra Nova tenant would be deemed to have exercised its first option to renew the term, leaving only one remaining option to renew for a term of five years. The tenant would lose the additional ten years to which it would be entitled to renew if it carried out the refresh. The tenant would also lose the set rental rates for years six through ten. However, the rental rates for years one through five would remain unaffected.
[25] At para. 74 the arbitrator stated, “I agree with this position”. The arbitrator noted that the issue was not whether the $1.5 million expenditure would provide value to the landlord, but what NER rate the Terra Nova tenant must pay during the relevant period. He concluded the NER rate for Terra Nova is $21.20 per square foot per annum.
[26] The arbitrator ruled that the minimum rent for the premises is $27.00 per square foot per annum. He reached this figure by presumably adding $5.80, due to other positive qualitative adjustments, to the Terra Nova rent of $21.20. In coming to this conclusion, the arbitrator did not factor in the $1.5 million expenditure, or lack thereof.
[27] The petitioner argued that the arbitrator had to determine the proper NER rate for Terra Nova in order to use it as a comparable when determining the premises’ rent. Ironwood relies on The Appraisal of Real Estate, 3rd Canadian Edition (Appraisal Institute of Canada) at p. 20.10, an authoritative appraisals text. This text describes the NER rate and its importance as follows:
Effective Rent
In markets where concessions take the form of free rent, above–market tenant improvements or atypical allowances, an appraiser must quantify the true effective rent. Effective rent (or actual occupancy cost) is an analytical tool used to compare leases with different provisions and develop an estimate of market rent. Effective rent may be defined as the total of base rent, or minimum rent stipulated in a lease, over the specified lease term minus rent concessions, e.g., free rent, excessive tenant improvements, moving allowances, lease buyouts, cash allowances, and other leasing incentives. Effective rent may be calculated in several different ways.
[28] The petitioner took a similar position at the hearing to the one it took at arbitration. Ironwood argued that the $1.5 million renovation expenditure must be amortized over Terra Nova’s ten-year rental term in calculating the NER rate because the renovation is mandatory and is a “reverse tenant inducement”. Such an inducement requires the tenant to incur an expense for the landlord’s benefit. This results in Terra Nova’s proper NER rate being $27.20 per square foot per annum.
[29] Ironwood argued that pursuant to s. 5(b) of the modification of lease agreement, the Terra Nova tenant must send a letter to its landlord confirming completion of the renovation. The petitioner argued that before s. 6 becomes operative, the tenant must have both failed to complete the renovation and failed to send the confirmation letter.
[30] Ironwood took the position that if s. 6 became operative, it would remove rights from the tenant. However due to the word “notwithstanding” found in that section, if the renovation was not completed and the letter was not sent, the Terra Nova landlord retained all other rights under the lease such as the ability to terminate for breach of contract.
[31] Ironwood argued that leave should be granted under s. 31 of the Arbitration Act because the arbitrator made an error of law by failing to consider the specific terms of the Terra Nova lease modification agreement upon which he based his award. Ironwood argues the legal test for contractual interpretation requires the adjudicator to consider the precise words used in the contract and ensure that all its terms are given meaning.
[32] Had the arbitrator considered the specific terms, particularly s. 6, he would have determined that the renovation was mandatory and factored the $1.5 million into Terra Nova’s NER rate. Instead, according to the petitioner, the arbitrator relied on a summary of the lease modification agreement provided by Save-On-Foods. The petitioner argued that the failure to consider the actual words of the contract constitutes a pure error of law: Robb v. Walker, 2015 BCCA 117(CanLII) at para. 53 (Chiasson J.A. dissenting on analysis and outcome); and Arbutus Bay Estates Ltd. v. Canada (Attorney General), 2017 BCCA 374 (CanLII)at paras. 27 to 32.
[33] The petitioner argued that leave should be granted pursuant to s. 31(2)(a) of the Arbitration Act, which provides that the court may grant leave where “the importance of the result of the arbitration to the parties justifies the intervention of the court and the determination of the point of law may prevent a miscarriage of justice”. The petitioner agreed the other two considerations under ss. 31(2)(b) and (c) of the Arbitration Act do not apply.
[34] The petitioner argued that the issue is important in terms of principle and money, with the result depriving the petitioner of $890,000 over the five-year renewal period.
[35] Ironwood requested that I allow the appeal, find that the NER rate for Terra Nova is $27.20, and add $5.80 for qualitative adjustments. This would amend the minimum rent for the premises to $33 per square foot per annum for the lease renewal period of June 8, 2018 to June 7, 2023.
[36] Save-On-Foods argued that leave to appeal should not be granted because this is a question of mixed fact and law. Pursuant to the Arbitration Act, leave to appeal can only be granted for pure questions of law.
[37] In addition, the respondent argued that leave to appeal under the Arbitration Act is discretionary. It should only be exercised when the party meets the tests under s. 31(2)(a), (b), or (c). Here it has not done so.
[38] In the alternative, the respondent argued that if it is a pure question of law, the standard of review is reasonableness.
[39] Save-On-Foods argued that the arbitrator did consider the wording of the lease modification agreement and the effect of s. 6. Counsel argued that while the renovation was a contractual term, the agreement contemplates the tenant not conducting the renovation and the repercussions that would flow from such an outcome. These repercussions do not affect the rent for the relevant years for the comparable, those being the five years of the first renewal.
[40] Save-on-Foods argued that the arbitrator determined that the consequences for failing to complete the renovation were as set out in s. 6. The arbitrator agreed with the respondent that the tenant would be deemed to have exercised its first option to renew the term, leaving it with only one remaining option to renew for a further five years. In addition, the Terra Nova tenant would lose its guaranteed rental rates for years six through ten. The respondent argued that this is a reasonable interpretation of the lease modification agreement.
[41] Section 31 of the Arbitration Act provides a narrow right of appeal for arbitral decisions. Appeals of arbitration awards are only done by consent of the parties or if the court grants leave to appeal. In determining whether to grant leave to appeal, s. 31(2)(a) of the Arbitration Act requires the court to consider the importance of the results of the arbitration to the parties and whether the determination of a point of law may prevent a miscarriage of justice. Issues of public importance to some class or body of persons are also considered but are not relevant here. Leave is discretionary.
[42] There are principled reasons for this narrow right of appeal. As stated by Chief Justice Bauman in Boxer Capital Corporation v. JEL Investments Ltd., 2015 BCCA 24 (CanLII) at para. 3, “commercial arbitration is intended to provide a speedy and, in the vast majority of cases, final determination of the issue or issues between the parties.” At para. 6, he stated “parties are afforded such narrow scope to appeal arbitral awards because arbitration is intended to be ‘an alternate dispute mechanism rather than ‘one more layer of litigation’” (emphasis in original.).
[43] Recently, the Supreme Court of Canada specifically commented on the BC Arbitration Act. In Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32 (CanLII) [Teal], Gascon J., writing for the majority, held:
[1] In British Columbia, the scope of appellate intervention in commercial arbitration is narrow in two key ways. First, there is limited jurisdiction for appellate review of arbitration awards because that jurisdiction is statutorily limited to questions of law. Second, even where such jurisdiction exists, our Court recently held that a deferential standard of review – reasonableness – “almost always” applies to arbitration awards. Together, limited jurisdiction and deferential review advance the central aims of commercial arbitration: efficiency and finality.
[References omitted.]
[44] Only questions of law are reviewable under the Arbitration Act. This is complicated by the fact that questions of law are difficult to distinguish from non-reviewable questions of mixed fact and law.
[45] In Housen v. Nikolaisen, 2002 SCC 33 (CanLII), a case regarding statutory interpretation, the Supreme Court of Canada determined that there is a true “question of law” only where a question of law, or a legal principle, is “extricable” from the question of mixed fact and law:
[36] To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in [Jaegli Enterprises Ltd. v. Taylor, 1981 CanLII 26 (SCC), [1981] 2 S.C.R. 2], is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.
[46] Contractual interpretation was traditionally considered a question of law. However in 2014, the Supreme Court of Canada held in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII) [Sattva] that the Court changed the landscape regarding commercial arbitrations and determined that interpretation of a contract is a matter of mixed fact and law. This new approach to contractual interpretation recognized that the interpretive process is set within a factual matrix.
[47] In Sattva, the Court further held that contractual interpretation should not be “dominated by technical rules of construction.” Adjudicators must “read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances, known to the parties at the time of formation of the contract”: para. 47.
[48] I set out a key passage from this seminal decision describing one of the underlying reasons for determining that contractual interpretation involves questions of mixed fact and law:
[51] … One central purpose of drawing a distinction between questions of law and those of mixed fact and law is to limit the intervention of appellate courts to cases where the results can be expected to have an impact beyond the parties to the particular dispute. It reflects the role of courts of appeal in ensuring the consistency of the law, rather than in providing a new forum for parties to continue their private litigation. For this reason, [Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748] identified the degree of generality (or “precedential value”) as the key difference between a question of law and a question of mixed fact and law. The more narrow the rule, the less useful will be the intervention of the court of appeal…
[49] Justice Warren succinctly summarized the principles from Sattva in Conmac Enterprises Ltd. v. 0928818 B.C. Ltd., 2018 BCSC 360 (CanLII) as follows:
[42] In Sattva, the Supreme Court of Canada directed a new approach to the legal characterization of questions of contractual interpretation, which had historically been considered questions of law. At para. 49, the Court in Sattva explained that the goal of contractual interpretation is fact specific; specifically, to ascertain the objective intent of the parties through the application of legal principles of interpretation. The Court concluded, at para. 50, that questions of contractual interpretation are questions of mixed fact and law because contractual interpretation is an exercise in which the legal principles of interpretation are applied to the words of the written contract, considered in light of the factual matrix. At para. 53, the Court recognized that it may be possible to identify an extricable question of law from within what is initially characterized as a question of mixed fact and law, and identified legal errors made in the course of contractual interpretation as including the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor. However, at paras. 54 and 55, the Court cautioned against finding an extricable question of law too readily and observed that, because of the close relationship between the selection and application of principles of contractual interpretation and the ultimate construction of the contract, the circumstances in which a question of law can be extricated from the interpretation process will be rare.
[50] Justice Rothstein, writing for the Court in Sattva, reasoned that an appeal from an arbitral award is different from a judicial review of a statutory tribunal decision. Under the Arbitration Act, parties generally choose to submit their dispute to arbitration and they select their arbitrator. Moreover, while the Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII) framework for judicial review affords deference to the factual findings of administrative tribunals, the Arbitration Act“forbids review of an arbitrator’s factual findings”: Sattva at para. 104.
[51] In Sattva, the Supreme Court of Canada was clear that leave to appeal should not be granted for broad unspecified inquiries into an arbitral award. As the BC Court of Appeal has articulated, leave to appeal should only be granted where there is a question of law that can be clearly perceived and delineated: Hayes Forest Services Limited v. Weyerhaeuser Company Limited, 2008 BCCA 31 (CanLII) at para. 45; and Elk Valley Coal Partnership v. Westshore Terminals Ltd., 2008 BCCA 154 (CanLII) at para. 17.
[52] These are the legal principles that I must apply to the case before me.
[53] The first issue in this petition is whether leave to appeal should be granted. I must only consider the second issue, whether the appeal should be considered on its merits, if I decide the first in the affirmative.
[54] The Arbitration Act does not act like a privative clause, which signals deference in the context of judicial reviews of statutory tribunals. The Arbitration Act places a jurisdictional bar on questions of mixed fact and law. It is absolute. Even where factual findings are erroneous, they cannot be reviewed: Sattva at paras. 42, 104; Teal at paras. 41-42; and Richmont Mines Inc. v. Teck Resources Limited, 2018 BCCA 452 (CanLII) [Richmont] at paras. 9 and 66.
[55] Since Sattva, it is more difficult for parties to obtain leave to appeal on questions of contractual interpretation. At the leave stage, the petitioner must demonstrate an arguable case that the arbitrator made an extricable and identifiable error of pure law which affected the outcome of the award. Otherwise, this Court has no jurisdiction to consider the appeal.
[56] Contractual interpretation is typically a question of mixed fact and law. Only if the arbitrator was addressing the wrong test or failed to consider relevant legislation would it rise to a question of law. For example, in The Crestmark Developments Limited Partnership v. Greata Ranch Developments Limited Partnership, 2018 BCSC 932 (CanLII) [Crestmark], the court held the arbitrator’s failure to refer to relevant provisions of the BC Partnership Act to be an error of law.
[57] Ironwood took the view that because the arbitrator did not set out s. 6 of the lease modification agreement, he must not have reviewed the lease’s actual words. Instead the arbitrator relied on a summary of the lease agreement prepared by counsel for the respondent. Ironwood argued that failing to consider the actual words of a contract constitutes a pure error of law.
[58] Save-On-Foods argued that the arbitrator looked at the surrounding circumstances as set out in paras. 122-124 of its closing submissions before the arbitrator. The surrounding circumstances were the modification of lease agreement was signed on that basis. The Terra Nova tenant would invest $1.5 million on a refresh for its store in exchange for a longer lease term to realize its return. However, the two additional optional terms to renew the lease would be lost and the lease would revert back to the original if the tenant did not do the renovation.
[59] According to Save-On-Foods, nothing about the agreed upon renovation affected the rent paid during the first five years of the renewal term.
[60] The arbitrator did not set out the wording in s. 6 of the lease modification agreement. After setting out Save-On-Foods’ position regarding s. 6, the arbitrator stated:
[74] I agree with this position. Whether the $1.5 million expenditure will provide value to the landlord (which may very well be the case given the landlord’s entitlement to 1% of the gross sales over a certain threshold and the fact that a more attractive Plaza would, presumably, draw in more customers) is not the issue. What is to be determined is the effective rental rate to be paid by the tenant during the relevant period. It is clear from the modification of the lease that there would be no impact on the rent that Save‑On‑Foods would pay for the first five years of this renewal term if it did not proceed with the $1.5 million renovation. There are only repercussions for further renewals.
[61] The arbitrator explicitly refers to the “modification of the lease” in para. 74, which indicates that he reviewed the language of the lease. Even without this wording, I could not assume that the arbitrator did not review the lease modification agreement, a document central to the dispute. He was clearly alive to the issue regarding the agreement and raised it with the parties on the first day of the hearing.
[62] After raising the issue, the arbitrator permitted additional viva voce evidence from Mr. Picard and Mr. Wong on the issue of the $1.5 million renovation and the negotiation of the lease modification agreement. Based on the language of the agreement, including ss. 4 and 6, as well as the testimony regarding the surrounding circumstances, he accepted the respondent’s position.
[63] It would have been preferable for the arbitrator to set out all the relevant portions of the lease modification agreement prior to accepting the respondent’s position. However not setting out the words of the contract, or setting out every detail of testimony, does not establish that the arbitrator did not consider all of the relevant factors. There is no obligation that an adjudicator refer to all evidence, all arguments, or every case to which he or she is referred in making a decision: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII) at paras. 14 and 16; and Heintzman and Goldsmith on Canadian Building Contracts, 5th Edition at 11 s. 11(b)(ii).
[64] Here it is clear that the arbitrator addressed this argument and meaning of s. 6. There was no error of law.
[65] Ironwood also argued that the words of the contract cannot be interpreted the way the arbitrator did, therefore there was a legal error. Save-On-Foods argued that the petitioner is “putting the cart before the horse”. By this it means the petitioner disagreed with the outcome of the arbitration award and then worked backwards to find the legal error: Richmont at para. 61.
[66] Whether or not the petitioner “put the cart before the horse”, both parties relied on their respective witnesses to provide the context in which the language was negotiated. Mr. Wong testified that this type of language is characterized as a reverse tenant inducement. Mr. Picard testified regarding the actual negotiations that led to the language and its ultimate consequences. This is evidence of the factual matrix of the case.
[67] The following comments in Teal are instructive:
[45] Courts should, however, exercise caution in identifying extricable questions of law because mixed questions, by definition, involve aspects of law. The motivations for counsel to strategically frame a mixed question as a legal question – for example, to gain jurisdiction in appeals from arbitration awards or a favourable standard of review in appeals from civil litigation judgments – are transparent (Sattva, at para. 54; Southam, at para. 36). A narrow scope for extricable questions of law is consistent with finality in commercial arbitration and, more broadly, with deference to factual findings. Courts must be vigilant in distinguishing between a party alleging that a legal test may have been altered in the course of its application (an extricable question of law; Sattva, at para. 53), and a party alleging that a legal test, which was unaltered, should have, when applied, resulted in a different outcome (a mixed question).
[68] A recent case, Crestmark is also instructive. Crestmark involved the question of whether interest was payable on a loan between business partners. Leave to appeal was granted on a question of statutory interpretation. With respect to interpreting the contract, the petitioner argued that the arbitrator erred by failing to take into account an express provision of the partnership agreement. This, it argued, was a question of law. Justice Crossin rejected the petitioner’s argument, stating at para. 124, “I have concluded, properly construed, this is a question of contractual interpretation and Crestmark has not identified a question of law arising from this determination.”
[69] The petitioner argued that a proper interpretation of the lease modification agreement would have rendered a different result. Even assuming that the petitioner has correctly identified an error in the arbitrator’s reasoning, it cannot be extricated from the factual matrix of the case. The analysis involved fact specific valuations in the context of a lease modification agreement.
[70] In Ironwood’s closing submissions before the arbitrator it acknowledged that testimony and emails containing earlier drafts of the Terra Nova modification of lease were “objective evidence” of the factual matrix. For example, the petitioner stated “the only objective evidence we have of the circumstances surrounding the lease modification agreement are the emails and draft agreement found at exhibits 14, a, b and c. From the emails we can see that the parties had turned their minds to how the $1.5 million Renovation requirement would work and how it should be worded.”
[71] By the petitioner’s own admission, the interpretation of this contract is question of mixed fact and law. The legal interpretation cannot be divorced from its factual matrix.
[72] I decline to grant the petitioner leave to appeal the arbitrator’s decision.
[73] In the event that I am wrong regarding whether leave should be granted, to consider the appeal I would have to be satisfied that the ground of appeal has arguable merit.
[74] The standard of review of an arbitrator’s decision is almost always the deferential standard of reasonableness: Sattva at para. 75; and Teal at para. 74. Therefore Ironwood must demonstrate that the arbitrator’s interpretation of the lease was not one that was reasonably available to him and that this error affected the result of the award.
[75] Both parties spent a great deal of time on the interpretation of Terra Nova’s lease modification agreement. As already stated, the key issue between the parties was whether the Terra Nova tenant’s rent was impacted by the $1.5 million renovation term.
[76] The difference between their two positions is that the petitioner argued that the mandatory $1.5 million renovation must be factored into the NER rate. The respondent argued that the renovation affects the future options for renewal, but does not affect the rental rates for years one through five. Years one through five are the only relevant years in the Terra Nova lease to be used as the comparable rent.
[77] The arbitrator accepted the respondent’s interpretation based on his understanding of the meaning of ss. 4 and 6 of the lease modification agreement, as well as the contract as a whole. This interpretation is not unreasonable. As is often stated, there are matters about which reasonable people can disagree.
[78] The following passage from Teal is apt:
[64] Whether the arbitrator failed to apply the foregoing principle raises a legal question. That said, merely raising a legal question does not exhaust the requirements for jurisdiction under s. 31 of the Arbitration Act. To grant leave on such a question of law, the court must be satisfied that the ground of appeal has “arguable merit” (Sattva, at para. 74; Arbitration Act, s. 31(2)(a)). In my view, if the Court of Appeal on remand had properly conducted a “preliminary examination of the question of law” in light of the reasonableness standard to be applied (Sattva, at paras. 74-75 and 106), it would have concluded that there is no arguable merit to this alleged legal error. The arbitrator‘s interpretation was rooted in the words of the contract, not overwhelmed by them. While the arbitrator may have placed significant weight on the factual matrix when interpreting the meaning of “compensation”, there is no arguable merit to the claim that he interpreted that matrix isolated from the contract’s words so as to effectively create a new agreement (Sattva, at para. 57; Hall, at pp. 33-34).
[79] Inherent in the petitioner’s argument is the view that there is only one possible way to interpret this contract. This has been repeatedly rejected by the courts. As stated by Rothstein J. in Sattva, “ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning”: para. 47.
[80] Given my decision regarding leave, I need not address the merits of the appeal. If I am wrong, there is no arguable merit to the appeal.
