IN THE SUPREME COURT OF BRITISH COLUMBIA
MSI Methylation Sciences, Inc.
(Petitioner)
And:
Quark Venture Inc.
(Respondent)
– and –
Docket: S189143
Registry: Vancouver
Between:
Quark Venture Inc.
(Petitioner)
And:
MSI Methylation Sciences, Inc.
(Respondent)
Before: The Honourable Madam Justice Adair
Reasons for Judgment
1. Introduction
[1] In June 2018, following a nine-day arbitration hearing, MSI Methylation Sciences, Inc. (“MSI”) was awarded damages of US$20 million against Quark Venture Inc. (“Quark”) for breach of contract (the “Award”). A further, supplementary award issued in September 2018 dealt with the currency of the Award, interest and costs.
[2] Quark now applies to set aside the Award on the basis that the arbitrator committed arbitral error and, alternatively, for leave to appeal what it says are certain questions of law arising out of the Award. Quark’s application is brought pursuant to sections 30 and 31 of the Arbitration Act, R.S.B.C. 1996, c. 55.
[3] MSI opposes Quark’s application.
[4] In addition, MSI has brought an application for leave to enforce the Award, pursuant to s. 29 of the Arbitration Act, and for related relief if any of the relief Quark is seeking is granted, including an order that Quark post security in the full amount of the Award. Quark opposes MSI’s application.
[5] For the reasons that follow, I have concluded that Quark’s application must be dismissed, and MSI’s application should be granted.
(a) The Investment Agreement between MSI and Quark
[6] MSI is a clinical-stage pharmaceutical company. Quark invests in life sciences as well as clean and advanced technology.
[7] MSI was developing a proprietary formulation, “MSI-195,” of S-adenosyl methionine, for the purpose of treating major depressive disorder, when the parties entered into negotiations for the investment in MSI by Quark.
[8] In September 2016, MSI and Quark entered into what is referred to in the Award as the “Investment Agreement.” The Investment Agreement provided for the investment by Quark in MSI of up to US$30 million, and (among other things) that:
(a) MSI agreed to issue treasury shares giving Quark a majority interest in MSI;
(b) Quark agreed to provide funds to MSI in four “tranches” (approximately US$1 million (the “First Tranche”), US$4 million (the “Second Tranche”), US$11 million (the “Third Tranche”) and US$14 million (the “Fourth Tranche”), respectively), on the terms and conditions set out in the Investment Agreement; and
(c) MSI agreed to spend those funds in accordance with a specified budget to complete a clinical study.
[9] The First Tranche of US$1 million was funded by Quark on September 30, 2016.
[10] In late November 2016, the parties’ representatives met at Quark’s offices to discuss the closing of the Second Tranche (US$4 million). At that meeting, Quark’s representatives told MSI’s representatives that there would be no further investment in MSI. No further funds were advanced by Quark under the Investment Agreement.
[11] On March 16, 2017, MSI commenced the arbitration (the “Arbitration”). In its arbitration notice, MSI alleged that Quark had breached the Investment Agreement by failing to close on the Second Tranche, and it described the value of its claim as US$29 million. MSI sought an order for specific performance of the Investment Agreement. Subsequently, it also sought damages in lieu of specific performance or, alternatively, common law damages for breach of contract.
[12] The parties agreed on the appointment of Mr. J. Kenneth McEwan, Q.C., as arbitrator (the “Arbitrator”). He was selected as a person who was familiar with contract law, venture capital, private equity and private placement in the field of Life Sciences.
[13] In 2017, the Arbitrator held several procedural meetings with parties’ counsel. Cross-applications for summary relief and for discovery were brought by MSI and Quark, respectively. The applications were heard by the Arbitrator in the latter part of 2017. In its motion for summary relief, MSI sought a “partial award” granting specific performance and damages, or, alternatively, an award granting summary judgment on its claim. MSI submitted that it was seeking specific performance because it would be difficult to accurately quantify its damages for breach of contract, as the assessment would require a quantification of the “opportunity cost of not having a successful Phase 2 Clinical Trial” and would be much greater than the US$30 million required to be paid by Quark under the Investment Agreement.
[14] The cross-applications were largely dismissed by the Arbitrator.
[15] The Arbitration hearing took place on April 2-7 and 9-11, 2018. Evidence in chief was given by affidavit and witness statements, and witnesses were then cross-examined. Closing submissions began on April 10, and continued on April 11. Counsel for MSI did not provide a written argument, but did provide a written outline of his submissions. On the other hand, counsel for Quark provided written closing submissions. The parties’ counsel also delivered oral argument over the two days.
[16] At the hearing, MSI did not pursue a claim for specific performance of the Investment Agreement. However, with respect to damages, MSI’s counsel advised at the beginning of his oral closing submissions that MSI was seeking damages in lieu of specific performance, or, alternatively, common law damages for breach of contract. On the topic of quantum, MSI’s counsel submitted that MSI was entitled in either case to the “full value” of the Investment Agreement plus an amount for Quark’s delay. MSI’s counsel submitted further that, whether damages were assessed in equity or at common law, the amount should be the same, namely US$29 million plus an amount for the time lost. MSI’s position was that there should be no discount from the $29 million on account of contingencies.
[17] In submissions, and with respect to common law damages, counsel for MSI argued that MSI was entitled to the amount of money that would bring it to the position it would have been in had the contract been performed, and damages for loss of profits. Counsel for MSI submitted that the parties would reasonably have contemplated damages for breach of contract at US$29 million. He argued that MSI was entitled to the value of the investment in MSI that Quark committed to make, which was US$29 million paid in “tranches.” MSI’s counsel submitted that Quark’s breach in failing to close the Second Tranche impaired MSI’s ability to meet the milestones of the Third and Fourth Tranches, and that Quark could not rely on its own behaviour (that is, its breach in failing to pay the Second Tranche) to force a material adverse change as justification for not closing on the Third and Fourth Tranches.
[18] Before concluding his submissions in chief, and after a short break, MSI’s counsel advised that MSI was withdrawing its claim for damages in lieu of specific performance because of legal theoretic difficulties, particularly with respect to the Third and Fourth Tranches and the jurisdiction of the Arbitrator. MSI’s counsel advised that MSI was proceeding with damages for breach of contract and for lost opportunity.
[19] Counsel for Quark then began his closing submissions. With respect to damages, Quark argued that the entire foundation of MSI’s claim of loss was exaggerated and ill-conceived. Quark submitted that MSI had not shown or proved any loss of any kind, let alone a loss in an amount ranging from US$4 million to US$29 million, or any loss of profit. Quark argued that, “[e]ven if a claim for ‘loss of opportunity’ might possibly lie,” there was no evidence to support it, since MSI was required to establish that, “having regard for the contingencies that bear on whether, had the opportunity not been lost, a financial advantage would actually have been realized” (citing Olive Hospitality Inc. v. Woo, 2007 BCCA 355 (CanLII), at para. 14, and Mickelson v. Borden Ladner Gervais LLP, 2018 BCSC 348 (CanLII)). Quark also cited the trial judgment in Graybriar Industries Ltd. v. Davis & Co., 1990 CanLII 1572 (B.C.S.C.) (in turn citing an Ontario Court of Appeal decision) for the proposition that: “Speculative and fanciful possibilities unsupported by expert or other cogent evidence can be removed from the consideration of the trier of fact and should be ignored, whereas substantial possibilities based on such expert or cogent evidence must be considered.” Quark submitted that there was no such evidence, and nothing to support any claims with respect to the Third and Fourth Tranches.
[20] The Award was issued on June 21, 2018.
[21] The Arbitrator found that, on November 30, 2016, Quark failed to make the payment that was then due in respect of the Second Tranche.
[22] Beginning at para. 89 of the Award, the Arbitrator set out certain provisions of the Investment Agreement that he considered arose most directly in relation to the parties’ arguments relating to the interpretation of the Agreement. He cited and relied on the principles applicable to the interpretation of contracts – particularly commercial agreements – described in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII).
[23] The Arbitrator then turned to his analysis and interpretation of the Investment Agreement. He wrote at paras. 91-92:
91. The context most material to the Investment Agreement and the issues that have been raised includes . . . that MSI was raising funds both for the conduct of a phase IIB clinical study and for working capital during the currency of that study. The budget appended as Schedule “A” to the Investment Agreement reflects the use of proceeds to accomplish that end. . . .
92. From a contractual perspective, it is to be understood that MSI required the full US$30 million investment to achieve these commercial objectives, which were also the objectives of the Investment Agreement. Correspondingly, it was necessary to that commercial purpose that the funds be used to that end, and not simply be dedicated to working capital generally, such that the opportunity to move to the next approval phase, and ultimately an FDA-approved drug, was maximized.
[24] The Arbitrator noted (Award, para. 93) that there were no milestones set out in the Investment Agreement as a pre-condition to the Second Tranche, as distinct from the First, Third and Fourth Tranches. The Arbitrator did not accept Quark’s argument that it had an untrammeled right not to proceed with funding, or a right simply to abandon the Investment Agreement prior to or at the time of the Second Tranche coming due. He concluded that this was inconsistent with the surrounding context in which the Investment Agreement was made. It would have denied to MSI the security of a funding commitment and undermined the intended purpose of the transaction, “which was to complete a further phase II study, in the hope of moving the product further in the approval process” (Award, para. 104).
[25] In the result, the Arbitrator found (Award, para. 106) that, in failing to proceed with the Second Tranche of funding, Quark breached the Investment Agreement.
[26] The Arbitrator then turned to remedy.
[27] The Arbitrator found (Award, para. 109) that there was nothing in the Investment Agreement that precluded MSI from availing itself of the ordinary remedies for breach of contract. He noted (Award, para. 111), that MSI initially claimed, but ultimately abandoned, its claim for specific performance of the Investment Agreement, and, at the hearing, sought damages in lieu of specific performance or, alternatively, common law damages.
[28] With respect to damages in lieu of specific performance, the Arbitrator was not persuaded that either specific performance, or damages in lieu thereof, would have been appropriate (Award, para. 112). The Arbitrator concluded (Award, para. 113) that MSI was entitled to common law damages for breach of contract, and that its damages were to be assessed as of the date of the breach, which was November 30, 2016.
[29] The Arbitrator then turned to the assessment of damages. It is here that Quark says the Arbitrator committed arbitral error, and also made errors of law.
[30] The Arbitrator wrote, beginning at para. 114:
Measure of Damages
114. The general rule is that a plaintiff is entitled to expectation damages for breach of contract:
The case is governed by the general rule applicable to all breaches of contract, and laid down as follows by Parke B. in Robinson v. Harman (1846) [1 Ex. 850, at p. 855].
The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.
(Haack v. Martin, 1927 CanLII 57 (SCC), [1927] S,C.R. 413, per Rinfret J., at p. 416, quoted in Bank of America Canada v. Mutual Trust Co., 2002 SCC 43 (CanLII)).
115. Expectation damages are assessed from the plaintiff’s perspective. The court must determine the value of the promise to the plaintiff at the time the obligation was to have been performed (Bank of America Canada v. Mutual Trust Co., 2002 SCC 43 (CanLII)).
116. In this case, the value of the promise must be considered as at the date the second tranche payment was due (November 30, 2016). The promise that was given through the Investment Agreement was the opportunity to receive US$30 million in exchange for an issuance of shares from treasury. As at the intended date of the second tranche payment (November 30, 2016), MSI had received US$1 million and was unconditionally entitled to receive another US$4 million.
117. The balance of the US$29 million (i.e. US$25 million) was not an amount to which MSI was unconditionally entitled. It was entitled only to the opportunity to receive that amount if, inter alia, certain milestones were met.
118. The approach to assessment of lost opportunities was addressed by the Court of Appeal in Pacific Destination Properties Inc. v. Granville West Capital Corp., 1999 BCCA 115 (CanLII), (“Pacific Destination Properties”) at para. 55:
In Bradshaw Construction Ltd. v. Bank of Nova Scotia (1992), 1992 CanLII 4038 (BC CA), 73 B.C.L.R. (2d) 212 (C.A.) this Court considered the principles applicable to damages, including a claim of loss of opportunity. At pages 228-229, the court referred to the following as a correct statement of the applicable law for loss of opportunity (as set out by the trial judge):
When deciding whether the plaintiff suffered any damages as a consequence of the actions of the defendant, Bradshaw must prove the existence of a loss on a balance of probabilities. It has done so. But when it comes to assessing the actual amount of the loss the standard of proof is not so strict.
Determining the amount of damages in these circumstances is largely a matter of assessing the strength and weaknesses of various possibilities. It is much like measuring the amount of a past or future loss of income in a personal injury action. The more certain the possibility of the loss the greater the award; the less certain the possibility the smaller the award. When looking at events that may have taken place but for a certain event, it is impossible to say what would have probably happened when the event came about, because one does not know the nature of the circumstances at the relevant time when the event might have occurred. The best that can be estimated are the possibilities, not the probabilities.
119. In this case, MSI was to meet certain milestones prior to the third and fourth tranches coming due. Quark retained an entitlement not to proceed with the third and fourth tranches in the event of a material adverse change to the financial position, business, assets or prospects of MSI or its subsidiary, or dissatisfaction with legal documentation. Its rights in that regard, while expressly “in its sole discretion” were necessarily constrained. At minimum, its ability to rely on the existence of a material adverse change or defect in legal documentation were subject to its duty of honest performance, informed by good faith (Bhasin v. Hrynew, 2014 SCC 71 (CanLII) at para. 93).
120. Accordingly, while also taking into account the other contingencies potentially at play, the primary question is what the likelihood is that both of the following would have occurred:
a. MSI would have met the milestones; and
b. Quark would not (in honest performance of its contractual obligations) have exercised its right to claim a material adverse change or defect in legal documentation.
121. Neither party led evidence or made substantive argument with respect to the appropriate discount to the value of MSI’s opportunity on the basis of future contingencies.
122. As in Pacific Destination Properties, I consider the prospect that the milestones would have been met without any good faith exercise by Quark of its ability to claim a material adverse change or defect in legal documentation, or other condition precedent left unmet, to be “probable”. As in Pacific Destination Properties, I nonetheless discount the likelihood of the third and fourth tranches being paid by approximately one-third (in this case 36%) to adjust for all uncertainties and negative contingencies.
123. Accordingly, I find that as at November 30, 2016, the value of the promise made to MSI was US$4 million plus US$16 million, or US$20 million.
124. I recognize that the proper measure of contractual damages is what the plaintiff was entitled to from the defendant, less whatever the plaintiff has retained as a result of the breach that it would not have retained if the contract had been carried out.
125. In this case, the value of what MSI has retained (shares in treasury), while potentially significant to others, is zero to the company itself. Shares in treasury are not an asset of the corporation. They are ownership pieces of the corporation. They represent value to potential shareholders and, when issued, can impact value to existing shareholders. But to the company, they do not have value.
126. Accordingly, the value of MSI’ s damages is not properly discounted by the fact that it has not been required to issue shares as it would have been if the Investment Agreement had been carried through.
[31] The Arbitrator gave the parties leave to make submissions concerning currency and the application of the Foreign Money Claims Act, R.S.B.C. 1996, c. 155, interest and costs. Following submissions, those matters were dealt with in a supplementary award dated September 12, 2018 (the “Supplementary Award”).
[32] I will first discuss Quark’s application to have the Award set aside on grounds of arbitral error. I will then turn to Quark’s application for leave to appeal. Finally, I will address MSI’s application for leave to enforce the Award.
(a) Has Quark shown the Arbitrator committed arbitral error?
[33] Section 30 of the Arbitration Act empowers the Court to set aside or remit an award if the arbitrator has committed an arbitral error:
Court may set aside award
30 (1) If . . . an arbitrator has committed an arbitral error, the court may
(a) set aside the award, or
(b) remit the award to the arbitrator for reconsideration.
(2) The court may refuse to set aside an award on the grounds of arbitral error if
(a) the error consists of a defect in form or a technical irregularity, and
(b) the refusal would not constitute a substantial wrong or miscarriage of justice.
(3) Except as provided in section 31, the court must not set aside or remit an award on the grounds of an error of fact or law on the face of the award.
. . .
[34] This power is discretionary.
[35] “Arbitral error” is defined (in s. 1 of the Arbitration Act) in relevant part as follows:
“arbitral error” means an error that is made by an arbitrator in the course of an arbitration and that consists of one or more of the following:
. . .
(d) failure to observe the rules of natural justice;
[36] Quark says that the Arbitrator failed to observe the rules of natural justice, and thereby committed arbitral error, by basing the Award on an approach to damages that was not advanced by the parties and on which the parties were not given an opportunity to make submissions.
[37] Quark says that, in particular, the Arbitrator adopted his own theory of damages and proceeded on the basis that damages should be assessed on the same basis as if Quark’s breach in failing to pay the Second Tranche amounted to an accepted repudiation of the Investment Agreement – a position never taken by either MSI or Quark. In doing so, Quark says that, without seeking any submissions from the parties on these issues, the Arbitrator unilaterally concluded that:
(a) MSI’s damages assessed as of November 30, 2016 should include the subsequent loss of opportunity to receive the Third and Fourth Tranches and damages should be assessed in accordance with a case that was not cited by either party (namely, Pacific Destination Properties Inc. v. Granville West Capital Corp., 1999 BCCA 115 (CanLII));
(b) the appropriate discount to apply under the Arbitrator‘s loss of opportunity theory of MSI’s damages was 36%; and
(c) there was zero cost to MSI in issuing treasury shares, meaning MSI’s damages should not be reduced to take into account the fact that it never issued treasury shares in exchange for the funding, as contemplated under the Investment Agreement.
[38] Quark says that, of the cases relied on by the Arbitrator with respect to damages assessment, only one was cited by either party, and at no time did the Arbitrator seek submissions from the parties on the cases he relied on. Quark says that the Arbitrator was under a duty (consistent with the requirements of natural justice) to determine the Arbitration on the basis of the cases which had been advanced by each party, and of which each party had notice. Quark says further that the parties are entitled to assume that the Arbitrator will base the Award solely on the evidence and argument presented by them prior to the making of the Award.
[39] Quark argues that this case has parallels to Hawkeye Power Corporation v. Sigma Engineering Ltd., 2012 BCCA 414 (CanLII). In that case, a new trial was ordered on appeal, on the basis that trial judge had decided the case on an interpretation of the contract that was not put to parties, and that was neither pleaded nor argued. Quark says that, in this case, the Arbitrator committed the same breach of natural justice as in Hawkeye, by proceeding on the damages theory that MSI lost the opportunity to receive the Third and Fourth Tranches, without giving Quark the opportunity to make submissions on that point. Quark argues that fairness concerns such as those raised in Hawkeye are heightened in the arbitration context, where appeals of an award are limited to questions of law alone.
[40] Quark says that, in addition, in assessing damages the Arbitrator did not address in any way Quark’s position that MSI had failed to show any loss. Quark says further that, to the extent a loss of opportunity approach was correct, the Arbitrator ignored the evidence before him that the Third Tranche in fact did not close, and that the conditions precedent for its closing had not been satisfied.
[41] In Quark’s submission, the Arbitrator was obligated to deal with these essential issues raised by Quark in relation to MSI’s claim for damages, and a failure to do so amounts to a failure to observe the rules of natural justice and, therefore, arbitral error.
[42] Quark says that these arbitral errors are more than defects in form or technical irregularities, and refusing to set aside the Award would constitute a substantial wrong or miscarriage of justice. Quark argues that these arbitral errors go to the heart of the Award, forming a critical component of the Arbitrator’s assessment of damages. This assessment, which Quark says was made in a vacuum of submissions and evidence, would leave MSI in a better position than it would have been in had the Investment Agreement been performed, as MSI was awarded the majority of the proceeds (US$20 million) available under the Investment Agreement, without taking into account either MSI’s concomitant obligation to spend the proceeds only on the clinical study or the consideration that MSI owed to Quark under the Investment Agreement.
[43] On the other hand, MSI says that the claim of arbitral error is unfounded and is, if anything, simply another means by which Quark seeks to express its unhappiness with the substantive outcome reflected in the Award. MSI says that this is not a permissible use of s. 30 of the Arbitration Act. MSI says that the Arbitrator acted in accordance with the requirements of natural justice and no relief under s. 30 can be justified.
[44] MSI says that, on the record, it is clear that the Arbitrator, throughout his involvement, was sensitive to procedural fairness issues. During closing submissions, the Arbitrator frequently asked questions and engaged in discussion with counsel. MSI says that the Arbitrator and counsel for the parties had several exchanges during closing submissions regarding the method by which damages would be calculated (or assessed).
[45] MSI says that Quark is now attempting, by asserting arbitral error, to revive opportunities to argue about damages that it declined to use fully during the hearing of the Arbitration. MSI says that damages as a whole did not occupy a large portion of Quark’s closing submissions. Rather Quark’s primary focus was on the argument that Quark had not breached the Investment Agreement and was, therefore, not liable.
[46] MSI says that assessing damages on the basis of loss of opportunity to receive the Third and Fourth Tranches was in fact argued before the Arbitrator. MSI framed its submissions in relation to that opportunity, and, in its closing brief of authorities, Quark in fact included a number of cases (for example, Olive Hospitality, Mickelson, Graybriar and Trinden Enterprises Ltd. v. Ramsay, 2009 BCCA 125 (CanLII)) in which the topic of damages for loss of opportunity was discussed. The Arbitrator engaged in discussion with MSI’s counsel on those points.
[47] What then are the requirements for “natural justice” in the arbitration context?
[48] As D. Smith J.A. observed in 0927613 B.C. Ltd. v. 0941187 B.C. Ltd., 2015 BCCA 457 (CanLII), at paras. 59-60:
[59] Natural justice requirements in arbitration have been broadly stated to require the arbitrator to act in good faith (or stated otherwise to be unbiased), fairly listen to both sides, and to give a fair opportunity to those who are parties to make representations, including to correct or to contradict any relevant statement prejudicial to their view. [citations omitted]
[60] Natural justice will require an arbitrator to act with procedural fairness, the requirements of which will depend on the subject-matter of the dispute, the circumstances of each case, the nature of the inquiry, and the rules under which the parties have agreed to arbitrate their dispute. [citations omitted] The duty of fairness is not a “one size fits all” requirement but is molded by the circumstances of each case. Its most basic requirement is “simple fairness” or “fair play in action”. See Canada (Attorney General) v. Mavi, 2011 SCC 30 (CanLII) at para. 42; Ridge v. Baldwin, [1962] 1 All E.R. 834 (C.A.) at 850, Harman L.J., cited in Kane at 1113.
[49] In my view, there was no failure by the Arbitrator to observe the rules of natural justice, and Quark has failed to demonstrate any arbitralerror in that respect.
[50] The record submitted on the applications before me make it clear that the Arbitrator, throughout his involvement, was sensitive to issues concerning procedural fairness. There can be no doubt that both sides were given a fair opportunity to present their respective cases.
[51] I would not give effect to Quark’s complaint that the Arbitrator based the Award on an approach to damages that was not advanced by the parties and on which the parties were not given the opportunity to make submissions. In my view, the opposite is true. The record before me supports the conclusion that MSI framed its submissions concerning damages based on an entitlement to receive the value of the Investment Agreement (namely, US$29 million) paid in tranches, including compensation for the loss of the opportunity to receive the Third and Fourth Tranches. MSI made submissions that Quark could not rely on its own behaviour (that is, the failure to close on the Second Tranche, thereby impairing MSI’s ability to meet the Third and Fourth Tranche milestones) to limit MSI’s damages. Quark provided authorities to the Arbitrator on loss of opportunity and addressed the point directly in it closing submissions. That Quark chose not to develop the point more fully in closing submissions, and (for example) make submissions addressing more explicitly an appropriate contingency deduction in the context of loss of opportunity, does not create a breach of natural justice and arbitral error.
[52] Quark asserts that the Arbitrator committed arbitral error by relying on Pacific Destination Properties, a case that neither party cited to him and on which neither party had an opportunity to make submissions. However, it is not an error or a breach of natural justice for an arbitrator (or a judge) to rely on case authorities not cited by counsel: see, for example, ICBC v. Patko, 2008 BCCA 65 (CanLII) at para. 37. Although it is improper for a judge to decide a case on issues that were not argued, a judge is entitled to seek assistance on the issues argued beyond the authorities counsel provides: ICBC v. Patko, at para. 37. In my view, the same principle applies to the Arbitrator, who was selected (in part) because of his expertise in contract law.
[53] The legal principles discussed in paras. 114-115 and 118 of the Award were not obscure legal points that were raised for the first time in the Award or that the parties (specifically Quark) had no opportunity to address. Rather, they were well established. The theory that there could be entitlement to contract damages based on loss of opportunity was not a theory that the Arbitrator created on his own, divorced from cases and arguments presented to him at the Arbitration hearing. The law discussed in Pacific Destination Properties fell within the law as stated in the authorities that the parties had squarely put before the Arbitrator.
[54] The very well-known case of Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145, is cited in Pacific Destination Properties (at para. 44) for the proposition that the damages which the innocent party ought to receive in respect of breach of contract are those which may fairly and reasonably be considered either arising naturally from the breach of it or as may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it. The same principle was cited by counsel for MSI in closing argument. In Trinden, one of the authorities in Quark’s brief of authorities, Saunders J.A. noted (at para. 23) that “[C]ompensation for loss of opportunity . . . is no more than the application of Hadley v. Baxendale. . .”. The propositions stated in paras. 48 and 49 of Pacific Destination to the effect that a person cannot take advantage of its own wrong were also well-established, and advanced in closing argument by counsel for MSI in support of an assessment of damages at US$29 million.
[55] The assessment of damages based on a loss of opportunity, with respect to which a contingency deduction may be appropriate, was also a concept discussed in the authorities provided by Quark to the Arbitrator. It was not a breach of natural justice for the Arbitrator to consider and apply this concept in his assessment of MSI’s damages.
[56] In my view, this case does not find a parallel in Hawkeye. On the contrary, as of closing submissions, there could have been little doubt about MSI’s position that its damages should be assessed on the basis of what it asserted was the value of the Investment Agreement (that is, US$29 million), and the issues addressed by the Arbitrator in the Award concerning the assessment of damages were the subject of both submissions and authorities placed before him in closing arguments.
[57] I would also not give effect to Quark’s argument that the Arbitrator committed arbitral error by not expressly addressing all of Quark’s submissions on damages in the Award. Like a trial judge, while an arbitrator must give comprehensible reasons for the arbitrator’s decision, the arbitrator is not required to refer to all the arguments, provisions or jurisprudence or to make specific findings on each constituent element, for the decision to be reasonable: see Sattva, at para. 75. In my view, the Arbitrator met the standard that applies.
[58] Accordingly, I dismiss this part of Quark’s petition.
(b) Should leave to appeal be granted under s. 31 of the Arbitration Act?
[59] Section 31 of the Arbitration Act allows for appeals to the Court on questions of law arising from an arbitral award if the court grants leave, and provides in relevant part:
Appeal to the court
31 (1) A party to an arbitration, other than an arbitration in respect of a family law dispute, may appeal to the court on any question of law arising out of the award if
. . .
(b) the court grants leave to appeal.
(2) In an application for leave under subsection (1) (b), the court may grant leave if it determines that
(a) 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,
(b) the point of law is of importance to some class or body of persons of which the applicant is a member, or
(c) the point of law is of general or public importance.
(3) If the court grants leave to appeal under subsection (2), it may attach conditions to the order granting leave that it considers just.
. . .
[60] In the event that a question of law is properly identified, the court must still make the determination required in s. 31(2) of the Arbitration Act and identify a ground that supports the granting of leave to appeal.
[61] Here, Quark relies on s. 31(2)(a).
[62] What must be shown in that respect is discussed in Sattva, at paras. 68 and following. In order to rise to the level of a miscarriage of justice for the purposes of s. 31(2)(a), an alleged legal error must pertain to a material issue in the dispute which, if decided differently, would affect the result of the case. According to this standard, a determination of a point of law “may prevent a miscarriage of justice” only where the appeal itself has some possibility of succeeding. An appeal with no chance of success will not meet the threshold of “may prevent a miscarriage of justice” because there would be no chance that the outcome of the appeal would cause a change in the final result of the case. At the leave stage, it is not appropriate to consider the full merits of a case and make a final determination regarding whether an error of law was made. However, some preliminary consideration of the question of law is necessary to determine whether the appeal has the potential to succeed and thus to change the result in the case. The appropriate threshold for assessing the legal question at issue under s. 31(2) is whether it has arguable merit or a reasonable prospect of success. Assessing whether the issue raised by an application for leave to appeal has arguable merit must be done in light of the standard of review on which the merits of the appeal will be judged. This requires a preliminary assessment of the applicable standard of review. Except in rare cases (none of which apply here), reasonableness will almost always apply to commercial arbitrations conducted pursuant to the Arbitration Act.
[63] Statutory limitations on the scope of appellate review of arbitration awards are “absolute,” and the test for leave to appeal is not easily met: see Sattva, at para. 104; and 0927613 B.C. Ltd., at para. 7. Such limitations reflect the policy objectives of only allowing limited judicial intervention in respect of arbitrationdecisions and the importance of judicial restraint in the review of arbitral awards, at least in the commercial context: see Boxer Capital Corporation v. JEL Investments Ltd., 2015 BCCA 24 (CanLII), at paras. 3-6. A finding that the questions proposed by Quark on its application for leave are not questions of law would wholly dispose of the issue of the courts’ jurisdiction to review those questions: see Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32(CanLII), at para. 42.
[64] In Teal Cedar Products, the Supreme Court of Canada clarified the approach to identifying a question of law for the purposes of granting leave under s. 31of the Arbitration Act. Gascon J. (for the majority) wrote, at paras. 43-47:
[43] The process for characterizing a question as one of three principal types — legal, factual, or mixed — is also well-established in the jurisprudence (Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35). In particular, it is not disputed that legal questions are questions “about what the correct legal test is” (Sattva, at para. 49, quoting Southam, at para. 35); factual questions are questions “about what actually took place between the parties” (Southam, at para. 35; Sattva, at para. 58); and mixed questions are questions about “whether the facts satisfy the legal tests” or, in other words, they involve “applying a legal standard to a set of facts” (Southam, at para. 35; Sattva, at para. 49, quoting Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235).
[44] That said, while the application of a legal test to a set of facts is a mixed question, if, in the course of that application, the underlying legal test may have been altered, then a legal question arises. For example, if a party alleges that a judge (or arbitrator) while applying a legal test failed to consider a required element of that test, that party alleges that the judge (or arbitrator), in effect, deleted that element from the test and thus altered the legal test. As the Court explained in Southam, at para. 39:
. . . if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.
Such an allegation ultimately challenges whether the judge (or arbitrator) relied on the correct legal test, thus raising a question of law (Sattva, at para. 53; Housen, at paras. 31 and 34-35). Accordingly, such a legal question, if alleged in the context of a dispute under the Arbitration Act, and assuming the other jurisdictional requirements of that Act are met, is open to appellate review. These “extricable questions of law” are better understood as a covert form of legal question — where a judge’s (or arbitrator’s) legal test is implicit to their application of the test rather than explicit in their description of the test — than as a fourth and distinct category of questions.
[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).
[46] From this standpoint, the characterization of a question on review as a mixed question rather than as a legal question has vastly different consequences in appeals from arbitration awards and civil litigation judgments. The identification of a mixed question when appealing an arbitration award defeats a court’s appellate review jurisdiction (Arbitration Act, s. 31; Sattva, at para. 104). . . .
[47] . . . In consequence, characterizing the nature of the specific question before the court requires delicate consideration of the narrow issue actually in dispute. . . .
[65] Quark says that the following questions of law arise out of the Award:
(1) the Arbitrator erred in law by holding that MSI’s expectation damages for breach of contract should be assessed by reference to the amounts to be paid by Quark under the Investment Agreement rather than by reference to the loss to MSI of not obtaining the clinical study data that MSI would have obtained had the Investment Agreement been performed;
(2) the Arbitrator erred in law by holding that damages assessed as of November 30, 2016, for breach of Quark’s failure to pay the Second Tranche include damages for the Third and Fourth Tranches despite the Investment Agreement remaining open and requiring continuing performance by both parties; and
(3) the Arbitrator erred in law by holding that MSI’s damages should be assessed without taking into account MSI’s retention of the treasury shares that it would have been required to issue to Quark had the Investment Agreement been performed.
[66] Quark says further that the threshold under s. 31(2)(a) of the Arbitration Act for leave to appeal is met. Quark says that the result of the Arbitration – an award of damages of US$20 million – is of undeniable importance to the parties and justifies the intervention of the court. In addition, Quark says that each of its proposed questions of law may prevent a miscarriage of justice as each is of arguable merit.
[67] MSI says that none of Quark’s questions is a question of law. Rather, in MSI’s submission, the questions are factual, or (at best) ones of mixed fact and law. MSI says further that none of the questions arises out of the Award. Rather, in MSI’s submission they arise out of Quark’s mischaracterization of what the Arbitrator did. Finally, MSI says that, even if one or more of Quark’s questions were a question of law, the court should not grant leave. This is because Quark has failed to show both that the importance of the result to the parties justifies the intervention of the court, and that the appeal has arguable merit in the light of the applicable standard of review, which is reasonableness.
[68] I turn then to consider each of Quark’s proposed questions, which (for convenience) I have slightly paraphrased in the headings below.
(ii) Q. 1: the Arbitrator erred in law by basing MSI’s expectation damages on the amounts payable under the Investment Agreement instead of on what MSI would have received had the Agreement been performed
[69] With respect to its first proposed question, Quark says that the Arbitrator correctly stated the legal test governing the assessment of damages for breach of contract, namely, that the innocent party should be placed, as far as money can do so, in the same position as it would have been in had the contract been performed. However, Quark says that in assessing MSI’s damages, the Arbitrator considered only Quark’s obligations under the Investment Agreement and failed to consider the effect of MSI performing its own obligations under the Agreement (for example, to carry out the clinical trial), which would have consumed all of the funding. Therefore, Quark says, although the Arbitrator identified the correct legal test, he failed (in the manner described in para. 44 of Teal Cedar Products) to apply all of the elements of that test. As a result, Quark says, the Arbitrator erred in law.
[70] In response, MSI says that the proposed question is not a question of law at all, but a question of fact, or, at most, a question of mixed fact and law. That is because the assessment of damages generally raises matters of mixed fact and law, or of fact alone, and Quark’s proposed question squarely engages the assessment of damages. MSI says that there is no dispute concerning the legal test for contract damages. This was the test set out in para. 114 of the Award. MSI says that the only question, therefore, is what did the Arbitrator do in applying this legal test to the facts, which is (at best for Quark) a question of mixed fact and law, and not subject to appeal.
[71] MSI says further that the proposed question does not arise out of the Award. Rather, it assumes that the Arbitrator did not take into account the loss to MSI of not obtaining the clinical study data that MSI would have obtained had the Investment Agreement been performed. However, MSI says that this assumption is not borne out by the Award. MSI says that, in assessing damages, the Arbitrator expressly took into account contingencies that included whether MSI would have met the milestones for the Third and Fourth Tranches, as well as other contingencies potentially at play (see Award, para. 120). Moreover, MSI says that the Arbitrator was alive to Quark’s points, including that, in its view, the opportunity to invest in MSI did not have value (see Award, para. 130).
[72] In my view, Quark’s first proposed question does not state a question of law. It is, at best, a question of mixed fact and law concerning how the Arbitrator, who was clearly aware of the correct legal test, as well as the nature and object of the Investment Agreement, carried out the assessment of contract damages based on the facts.
(iii) Q. 2: the Arbitrator erred in law by assessing MSI’s damages as of November 30, 2016 to include damages for the Third and Fourth Tranches
[73] With respect to its second proposed question, Quark says that MSI’s claim for specific performance (or damages in lieu thereof) constituted an election to affirm the Investment Agreement and keep the contract alive. Quark says that, while at the Arbitration hearing, MSI abandoned its claim for specific performance, it never abandoned its claim for damages in lieu thereof. However, Quark says (citing Dosanjh v. Liang, 2015 BCCA 18 (CanLII), at paras. 53-54) that such damages are awarded only in cases where specific performance is available, that is, in cases where the contract has not been terminated.
[74] Quark says that the Arbitrator found that damages in lieu of specific performance were not appropriate, but not that they were unavailable because there had been an accepted repudiation of the Investment Agreement, which there had not been. Quark says that there was no basis for the Arbitrator to assess damages as though there had been an accepted repudiation (based on Quark’s breach in failing to pay the Second Tranche), and the issue of whether or not Quark breached an obligation to pay the Third and Fourth Tranches was not properly before the Arbitrator.
[75] MSI says that the second proposed question does not raise a question of law. Rather, MSI says that it embeds within it a host of issues of fact or mixed fact and law, including whether a repudiation is required in the circumstances (since there was a breach of the obligation to pay the Second Tranche, not merely an anticipatory breach), and, if there was a repudiation, whether it was accepted. Moreover, MSI says that the loss of opportunity itself is strongly factual. Whether the Arbitrator erred by characterizing MSI’s potential receipt of funds under the Third or Fourth Tranches as an opportunity that was lost by virtue of Quark’s failure to pay the Second Tranche (and therefore a breach of the Investment Agreement) is a question of fact, or, at most, mixed fact and law.
[76] MSI says further that this proposed question does not arise out of the Award, and misconceives the context before the Arbitrator. MSI says that the proposed question is based on at least two erroneous premises: first, that a repudiation by Quark and acceptance by MSI were required for the Arbitrator to award damages for loss of opportunity in relation to the Third and Fourth Tranches; and, second, that there was no accepted repudiation and no basis for the Arbitrator to assess damages as though there had been.
[77] In my view, this question is, again, not a question of law, but is (at best) a question of mixed fact and law concerning how the Arbitrator assessed damages. In addition, it misinterprets how the Arbitrator assessed damages, and is not a question that arises out of the Award.
[78] The Arbitrator assessed MSI’s damages arising out of the breach of contract (the failure to pay the Second Tranche) to include loss of the opportunity to receive the Third and Fourth Tranches. MSI was entitled to a remedy in damages for the breach of the Investment Agreement found by the Arbitrator. The failure by Quark to proceed with the Second Tranche of funding was not merely an anticipatory breach; it was an actual breach of the parties’ contract. Contrary to how the second proposed question is framed, damages were not assessed to “include damages” for the Third and Fourth Tranches. Rather, damages were assessed based on the loss of the opportunity to receive the Third and Fourth Tranches, arising from the actual breach. Moreover, by the end of MSI’s closing submissions, MSI was not seeking damages in lieu of specific performance, but common law damages for breach of contract. That is how damages were assessed by the Arbitrator.
(iv) Q. 3: the Arbitrator erred in law by declining to take the shares that MSI would have issued under the Investment Agreement into account in assessing MSI’s damages
[79] Quark says that, in assessing damages, the Arbitrator contravened the principle that a claimant is not entitled to recover the entirety of what it bargained for without giving up anything in return, as it cannot be placed in a better position than it would have been in had the contract been performed. Quark says that the Arbitrator erred in law by holding that MSI’s damages should not be discounted by the treasury shares that it retained as a result of Quark’s breach. Quark says that, contrary to the Arbitrator’s conclusion that the unissued MSI shares have no value, there is indeed value in the shares MSI has retained because, without diluting its shareholders, it can issue the shares to new purchasers for its own benefit. This gives rise to double recovery.
[80] MSI says that this question is a question of fact, or, at most, a question of mixed fact and law. The Arbitrator identified the correct legal test (see Award, para. 124). MSI says that the Arbitrator did not deduct a value for the shares because he found as a fact that they did not have value to MSI: see Award, paras. 125-126. This is not open to challenge on an appeal under s. 31.
[81] I agree with MSI. Quark’s third proposed question does not identify a question of law. Rather, it seeks to challenge a finding of fact made by the Arbitrator. The Arbitrator identified the correct legal test. He did not “decline” to take the shares into account. Rather, he found as a fact that the shares had no value.
[82] Given my conclusions that none of the three questions proposed by Quark is a question of law, I do not intend to discuss whether Quark could nevertheless have demonstrated what is required under s. 31(2)(a) of the Arbitration Act, assuming it had identified a question of law.
[83] Quark’s application for leave to appeal is dismissed.
(c) MSI’s petition for enforcement of the Award
[84] With respect to enforcement of the Award, MSI relies on s. 29 of the Arbitration Act, which provides:
Enforcement of an award
29 (1) With leave of the court, an award may be enforced in the same manner as a judgment or order of the court to the same effect, and judgment may be entered in the terms of the award.
. . .
[85] The fact that leave is required makes it clear that an award is not entitled to automatic status as a judgment of the court. Rather, the court must exercise its supervisory power in determining whether it is appropriate to permit an award to be enforced as a judgment of the court. See Bekar v. TD Evergreen, 2006 BCCA 266 (CanLII), at paras. 37-38. The application for leave may be adjourned, or leave may be refused, if: the award is not “perfected,” such as where there are outstanding issues between the parties that the arbitrator had indicated he or she will or must address; if proper processes were not followed in obtaining the award; or where the award is still subject to appeal. See Bekar, at para. 38; and The Owners, Strata Plan BCS 3165 v. KBK No. 11 Ventures Ltd., 2014 BCSC 2276 (CanLII), at para. 96
[86] An application under s. 29 is not a hearing of the merits of the arbitrated dispute. See: J. Brian Casey, Arbitration Law of Canada: Practice and Procedure, 3rd ed. (New York: JurisNet, 2017), at p. 534.
[87] As the Supplementary Award addressed the remaining issues outstanding, the Award has been perfected. I have rejected Quark’s arguments concerning arbitral error, and I have concluded that Quark has not identified any question of law that would justify leave being granted under s. 31 of the Arbitration Act.
[88] No grounds have been established on which leave to enforce either the Award or the Second Award should be refused. Accordingly, I grant leave, pursuant to s. 29 of the Arbitration Act, to enforce both the Award and the Supplementary Award.
[89] In summary, I make the following orders:
(a) Quark’s petition is dismissed, with costs on Scale B;
(b) with respect to MSI’s petition:
(i) MSI is granted leave to enforce the Award and the Supplementary Award (collectively, the “Awards”) in the same manner as a judgment of this court;
(ii) Quark shall pay to MSI the amount of Canadian currency necessary to purchase the following amounts of U.S. currency at a chartered bank located in B.C. at the close of business on the conversion date, being the last day before the day on which a payment pursuant to this order is made:
(A) US$20,000,000;
(B) US$80,066.67;
(C) post-Awards interest in an amount calculated up to the date of this order pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79;
(D) post-judgment interest in an amount calculated commencing on the date of this order under the Foreign Money Claims Regulation, B.C. Reg. 165/96; and
(iii) Quark shall pay costs of the proceeding to MSI on Scale B.
