Docket: T-373-15
Citation:
2016 FC 775
[ENGLISH
TRANSLATION]
Ottawa, Ontario, July 8, 2016
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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THE ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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AÉROPORTS DE
MONTRÉAL
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Respondent
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ORDER AND REASONS
I.
Introduction
[1]
Under agreements signed with the Government of
Canada, the respondent, Aéroports de Montréal [ADM], has been handling the
management, operations and maintenance of Dorval and Mirabel international
airports since 1992. According to the applicant [the Attorney General],
ADM must supply, at no charge, the necessary facilities for the clearance of
commercial goods at Mirabel Airport. He alleges that this is a binding
obligation for ADM under section 6 of the Customs Act, RSC, 1985,
c 1 (2nd Supp.). ADM, which already supplies such facilities, claims
that it is not obligated to do so free of charge if it entails the clearance of
goods passing through that airport, independently of any passenger.
[2]
Faced with this impasse, in March 2015, the
Attorney General brought an application for judicial review before this Court
to declare the rights and obligations of the parties on this issue. In
response to these proceedings, ADM filed a motion to refer the matter to
arbitration, a process it had already initiated, in accordance with the
provisions of the said agreements.
[3]
On November 18, 2015, Prothonotary
Richard Morneau allowed ADM’s motion, referred the parties to arbitration
and, under paragraph 50(1)(a) of the Federal Courts Act,
RSC, 1985, c F-7, suspended sine die the application for judicial
review filed by the Attorney General. As permitted under section 51 of
the Federal Courts Rules, SOR/98-106, the Attorney General is appealing
Prothonotary Morneau’s decision.
II.
Background
[4]
The transfer to ADM of the management of Dorval
and Mirabel airports is set out in an agreement entered into on April 1,
1992 [Transfer Agreement]. Under the terms of that agreement, the parties
signatory agreed to enter into a series of supplementary agreements. One of
these agreements is the Canadian Inspection Services Agreement [CIS Agreement],
signed on July 31, 1992. The expression “Canadian
Inspection Services” is defined therein as services [translation] “provided
to protect Canada’s industry, economy, health, environment, security and
public, while ensuring that the means of transportation, passengers, their
property and commercial goods entering, leaving or passing through Canada
comply with all relevant requirements of laws and regulations.” The CIS
Agreement identifies four federal departments that supply Canadian Inspection
Services, including the Department of National Revenue, which, at that time,
was notably responsible for enforcing the Customs Act.
[5]
Under the CIS Agreement, ADM undertakes, in
support of carrying out the mandate of each of these departments, to supply—or
arrange for the supply of—the [translation]
“CIS Facilities,” equipment, utilities, and
services to meet the requirements and standards set out, in particular, under
all applicable federal legislation, including the Customs Act. The
expression “CIS Facilities” is defined therein
as the [translation] “buildings, finished premises, reception facilities, vehicle
parking facilities and spaces, including waiting, holding and storage rooms
used or required in order to receive, monitor, examine, search, retain or
detain, remove and authorize or clear passengers, their property and their
commercial goods, and to collect revenues.”
[6]
Moreover, the Transfer Agreement and the CIS
Agreement both contain an arbitration clause. Thus, under paragraph 10.01
of the Transfer Agreement, any dispute or disagreement between the contracting
parties born of said agreement and which was not intended as a [translation] “point
of law,” may be deferred to an arbitration tribunal governed by the Commercial
Arbitration Code established by the Commercial Arbitration Act, RSC,
1985, c C-34.6. In turn, paragraph 16.1 of the CIS Agreement
provides for referral to arbitration [translation]
“in accordance with the provisions of clause 10 of
the Transfer Agreement,” of any matter related to one of the following
three situations: [translation]
(i) “if a CIS Department and ADM are unable to
agree on any question of fact, which necessitates an agreement under this
agreement”; (ii) “if there is a dispute
about the facts arising from this agreement or related thereto”; or
(iii) “if a dispute about the interpretation of
this agreement cannot be resolved through negotiation between the CIS
Department and ADM.”
[7]
On June 5, 2014, through its counsel, ADM
invited the Canada Border Services Agency [CBSA], the successor to Canada’s
Department of National Revenue for the purposes of, among other thing,
enforcing the Customs Act, to try to negotiate an acceptable solution to
the parties’ dispute regarding the premises intended for clearance of
commercial goods at Mirabel Airport. It contends that the CIS Agreement
restricts its obligations for the free supply of rooms for the clearance of
commercial goods accompanying a passenger, thereby excluding goods passing
through independently of any passenger.
[8]
On July 4, 2014, the CBSA reiterated that
ADM had both a contractual and a statutory obligation to supply, at no cost to
CBSA, the rooms and other facilities required to process all imported goods,
including commercial goods, whether they are or are not accompanied by a
passenger. In the same breath, it pointed out that the room it has occupied
for this purpose at Mirabel for a number of years under a lease entered into
between a third party and Public Works and Government Services Canada [translation] “was
an anomaly that the CBSA corrected in accordance with the provisions of the
Act.”
[9]
On September 29, 2014, ADM served the CBSA
with a formal notice of its intention to submit the dispute to arbitration under
clause 16 of the CIS Agreement and under clause 10 of the Transfer
Agreement. Therein it appointed the person who, from among the three members
required to form the arbitration tribunal, would be their preferred
arbitrator. As stated previously, this dispute ended up before the Court a few
months later when the Attorney General, being of the opinion that said dispute
fell outside the scope of those arbitration clauses because it raised a matter
of pure statutory interpretation, filed his declaratory relief.
III.
Prothonotary Morneau’s decision
[10]
Prothonotary Morneau was of the view that
he had to determine, in light of the state of the law, whether it was up to
this Court or to the arbitration tribunal to rule on the applicability of the
arbitration clauses in the dispute between ADM and CBSA.
[11]
First disposing of the so-called preliminary
questions, he was of the opinion that this is not a case in which, by the
virtue of the principles of proportionality and conserving judicial resources,
and in spite of the Court’s traditional reluctance to seize itself of and
decide preliminary motions under applications for judicial review, as urged by
the Attorney General, there is reason to refer the issue raised by ADM’s motion
to the trier of fact.
[12]
He also rejected the Attorney General’s argument
based on article 2639 of the Civil Code of Québec, CQLR,
c CCQ-1991 [CCQ], to the effect that, since he is questioning the scope
and application of a statutory provision, in this case section 6 of the Customs
Act, the dispute between the parties raises a matter of public order and
may not therefore, on its very face, be submitted to arbitration.
Prothonotary Morneau held that the Attorney General’s argument was
contrary to the teachings of Desputeaux v Éditions Chouette (1987) inc.,
2003 SCC 17, [2003] 1 SCR 178 [Desputeaux],
whereby, in order to preserve decision‑making autonomy within the
arbitration system, it is important that we avoid extensive application of the
concept of public order by courts and to instead reserve its application for
certain fundamental matters.
[13]
Lastly, Prothonotary Morneau believed that
there was no reason to conclude otherwise with respect to the argument based on
the more specific concept of [translation]
“directive public order.” He was not convinced
that, insofar as it involves the provision of rooms, section 6 of the Customs
Act relates to that concept, which, under the doctrine he cites, targets
first and foremost the rules relevant to dealing with civil society’s sake as a
whole. Prothonotary Morneau also reiterated in this regard that
application of the rules presenting a matter of public order does not,
moreover, preclude arbitration.
[14]
In addressing the issue at the heart of ADM’s
motion, Prothonotary Morneau noted the rule that any challenge to the
arbitration tribunal’s jurisdiction must first be decided by it, unless the
challenge is based exclusively on a question of law or, if it is based on a
question of mixed fact and law, that the question only involves superficial
consideration of the documentary evidence in the record.
[15]
Prothonotary Morneau, however, took the
view that ADM’s motion could be taken positively without him being required to
conduct the analysis based on the fact that ADM initiated the arbitration
procedure before the Attorney General undertook his declaratory relief before
the Court.
[16]
Alternatively, Prothonotary Morneau found
that it was up to the arbitration tribunal to determine its jurisdiction to
hear the dispute between ADM and CBSA. In this regard, he noted the warning served
by the Supreme Court of Canada in Sattva Capital Corp v. Creston Moly Corp,
2014 SCC 53, [2014] 2 SCR 633, against the practise of
identifying extricable questions of law in disputes over contractual
interpretation.
[17]
More fundamentally, he found that resolution of
the dispute between ADM and CBSA is not reduced to the mere application of
section 6 of the Customs Act. On this issue, he is of the opinion
that the analysis and review of the CIS Agreement, as well as the parties’
conduct after said agreement was signed, are [translation]
“also required to find a solution to the main dispute.”
IV.
Issue and standard of review
[18]
The Attorney General maintains that
Prothonotary Morneau erred in two ways:
- in determining, on the one hand, that the precedence of the notice
of arbitration led to the automatic referral of the case to an arbitration
tribunal; and
- in finding, on the other hand, that the onus is on the latter,
not on the Court, to decide which forum has jurisdiction to rule on the
dispute between ADM and CBSA.
[19]
As acknowledged by the Attorney General, it is
well established that where an appeal relates to a discretionary decision made
by a prothonotary, the Court will only intervene if said decision
(i) addresses questions vital to the final issue of the case; or (ii) is “clearly wrong, in the sense that the exercise of discretion
by the prothonotary was based upon a wrong principle or a misapprehension of
the facts” (Z.I. Pompey Industrie v. ECU-Line N.V.,
2003 SCC 27, [2003] 1 SCR 450, at paragraph 18; Merck
& Co. Inc. v. Apotex Inc., 2003 FCA 488, at
paragraph 19, leave to appeal to SCC refused, [2004] SCCA No. 80;
Canada v. Aqua-Gem Investments Ltd., [1993] 2 FC 425,
61 FTR 44). Should either of these two situations arise, the Court
then has jurisdiction to consider de novo the issue on appeal.
V.
Analysis
A.
Precedence of the notice of arbitration
[20]
The Attorney General maintains that
Prothonotary Morneau could not conclude that the issue of arbitrability of
the dispute between the parties would automatically be referred to an
arbitration tribunal merely due to the precedence of the notice of arbitration,
because the arbitration tribunal had not yet been constituted at the time he
filed his declaratory relief before the Court. He added that this situation is
not unlike the one that prevailed in Société en commandite Aires de service
Québec (9192-6402 Québec inc.) v. Québec (Procureur général),
2012 QCCS 4115 [Société en commandite], in which the Superior
Court of Quebec was found competent to rule on the issue of jurisdiction at the
time, even though an application to submit the dispute to arbitration was
pending. Lastly, he argued that this case differs from the case law invoked by
Prothonotary Morneau in support of his finding on this point.
[21]
However, in my view, it was open to
Prothonotary Morneau to conclude as he did on that issue.
[22]
On the one hand, the argument that the principle
of precedence only applies once the arbitration tribunal has been constituted
is not supported by the relevant legislation. In its relevant aspects,
clause 10 of the Transfer Agreement stipulates that any dispute or
disagreement that falls under said clause can be [translation] “deferred to an
arbitration tribunal” and “submitted by means of
a written application” signed by either signatory. The clause states
that the Commercial Arbitration Code [the Code], instituted by the Commercial
Arbitration Act, governs the arbitration tribunal, which is formed of three
arbitrators, with each party appointing its own arbitrator, the third being appointed
by the two arbitrators selected by each party. For its part, clause 16 of
the CIS Agreement refers to clause 10 of the Transfer Agreement and,
therefore, the Code, by stipulating that any arbitrable question related to
that Agreement must be referred to an arbitration tribunal in accordance with
the terms of said provision.
[23]
However, unless the parties agree otherwise,
section 21 of the Code places the beginning of the arbitration procedure [translation] “on
the date on which the application to submit the dispute to arbitration is
received by the respondent.” The expression “arbitration
tribunal” is defined in the Code as [translation]
“a sole arbitrator or a panel of three arbitrators,”
unless the parties agree on a different number of arbitrators.
[24]
As we have seen, any arbitrable dispute or
disagreement under the terms of the CIS Agreement must be submitted, by
operation of clause 10 of the Transfer Agreement and clause 16 of the
CIS Agreement, by means of a written application signed by either signatory,
and nothing in either of said Agreements words the beginning of the arbitration
procedure differently from section 21 of the Code. In other words, there
is nothing in this case that aligns the beginning of the arbitration procedure
with the constitution of the arbitration tribunal.
[25]
I note that it was nearly six months before
the Attorney General filed his declaratory relief before the Court that ADM
served the CBSA a [translation] “Notice to submit a dispute to arbitration under the
Commercial Arbitration Code” in connection with the dispute regarding
the supply of rooms for the clearance of commercial goods. In the notice, ADM
informed the CBSA of the identity of its arbitrator and advised the CBSA that
it had 15 days to appoint their own.
[26]
It therefore seems clear to me, in light of the
provisions of both the Code and the two agreements at issue, that on
September 29, 2014, the arbitration procedure had formally commenced,
even though the constitution of the arbitration tribunal was only in the initial
stage, and that, consequently, the arbitration procedure had already validly
commenced when, in March 2015, the Attorney General initiated its
declaratory relief.
[27]
On the other hand, in Dens Tech-Dens KG v.
Netdent-Technologies Inc., 2008 QCCA 1245, leave to appeal to SCC
refused, February 5, 2009, SCC No. 32819 [Dens Tech],
the Court of Appeal of Quebec unequivocally held that once the arbitration
process has begun, the parties [translation]
“cannot address the Superior Court beforehand to have
it rule on an issue that falls within the arbitrator’s jurisdiction and which
it must address” (Dens Tech, at paragraph 26). It
stated therein that the exception to the principle that it is the arbitrator’s
role to determine its jurisdiction to hear a dispute, which exception allows an
ordinary court to decide a question of law, only applied [translation] “when
the court is first seized of an action and then later presented with an
application for referral under article 940.1 of the C.C.P.” (Dens Tech,
at paragraphs 25–26). It should be noted that article 944 of the Code
of Civil Procedure [C.C.P.], as it read at the time of the Dens Tech
ruling, determined, as does section 21 of the Code, that the arbitration
proceedings commence on the date of service of the notice to the other party of
its intention to submit a dispute to arbitration. Article 631 of the
C.C.P., in effect in Quebec since January 1, 2016 (CQLR,
c C-25.01), is to the same effect.
[28]
In a recent case, the Superior Court of Quebec,
as Prothonotary Morneau noted, reproduced the same principle (Moreau v.
Gagnon, 2015 QCCS 3547, at paragraph 27 [Moreau]; see
also Aéroports de Montréal v. Société en commandite Adamax Immobilier,
2010 QCCS 4606, at paragraph 22 [Adamax]).
[29]
Contrary to the Attorney General’s submissions,
I see no reason not to apply the principle established in Dens Tech,
and reproduced in Moreau, to this file. While it is true that the
objection to the arbitrator’s jurisdiction in Dens Tech first and
foremost addressed the formal validity of the notice of arbitration, and not
the arbitrability of the dispute per se, the Court of Appeal of Quebec
nonetheless treated this objection as a question involving the arbitrator’s
jurisdiction, namely, that of determining the validity of the notice of arbitration
(Dens Tech, at paragraphs 26, 31). As is true in this case,
in that case, when the Superior Court was faced with the jurisdiction issue,
the notice of arbitration had been served but no arbitrators had yet been
appointed [Dens Tech, at paragraph 11].
[30]
With respect to Moreau, if it is also
true, as the Attorney General noted, that the Superior Court believed it had
jurisdiction to decide the issue of the arbitrator’s jurisdiction, that is,
however, precisely because no notice of arbitration had previously been served
in accordance with the arbitration agreement binding the parties [Moreau,
at paragraphs 26–28].
[31]
As regards Société en commandite, which
the Attorney General urges the Court to follow and, in which the Superior Court
of Quebec ruled on the arbitrator’s jurisdiction even though a notice of
arbitration was pending, I noted that strangely there is no mention therein of Dens Tech,
of which I have no reason to believe that the Court of Appeal of Quebec
excluded in its subsequent decisions and which authority remains undiminished
among judges of the Superior Court of Quebec as we have seen in Moreau
and Adamax. In this regard, I noted that in the two cases decided by
the Court of Appeal of Quebec after Dens Tech, and cited by the Attorney
General, the dispute between the parties was brought first before the Superior
Court of Quebec, and not before the arbitration tribunal (Ferreira v Tavares,
2015 QCCA 844, at paragraphs 5, 10; SMC Pneumatics (UK) Ltd.
v. Bombardier Transportation, 2009 QCCA 861, at
paragraphs 17–18).
[32]
I thus hesitate to rely on Société en
commandite to base my criticism of how Prothonotary Morneau addressed,
and ultimately decided, this issue.
[33]
Regardless, with all due respect, I find that
the approach taken in Dens Tech seems entirely consistent with the
current state of the law regarding the arbitration system, including this Court’s
jurisdiction, which, in the name of the principle of respect for the freedom
and autonomy of the intentions of the parties, seeks to promote and facilitate
application of the arbitration clauses and ensure their primacy.
[34]
This is what I believe must specifically be
understood from Dell Computer Corp v. Union des consommateurs,
2007 SCC 34, [2007] 2 SCR 801 [Dell Computer],
in which the Supreme Court of Canada recalled that of the two schools of
thought observable in international law over the degree of judicial scrutiny of
an arbitrator’s jurisdiction under an arbitration agreement, federal and Quebec
legislators clearly opted for the one giving precedence to the arbitration
process, under which arbitrators should be allowed to exercise their power to
rule first on their own jurisdiction (Dell Computer, at
paragraphs 69, 70, 80). This school of thought, associated with the
principle commonly known as the “competence-competence”
principle, thus tends to “prevent delaying tactics”
(Dell Computer, at paragraph 70). That option is made at the
expense of the school of thought that favours an interventionist judicial
approach to questions relating to the jurisdiction of arbitrators. As the
Supreme Court pointed out, that approach requires that the court must rule
first on the arbitrator’s jurisdiction so as to avoid a duplication of
proceedings since, at any rate, it has the power to review the arbitrator’s decision
regarding his or her jurisdiction (Dell Computer, at
paragraph 69).
[35]
Closer to home, these principles were emphasized
by this Court in GPEC International Ltd. v. Canadian Commercial Corporation,
2008 FC 414 [GPEC International], a case involving, like this
one, an arbitration procedure governed by the Code. The Court noted therein
that under the Code, “the determination of questions
relating to their own jurisdiction falls squarely within the powers granted to
the arbitrators themselves (see especially article 16).” I
emphasize that under federal law, article 16 fosters the “competence-competence” principle. In that case,
where the arbitration process had already begun, the Court referred the parties
to the arbitrator to rule on his or her jurisdiction to continue the
arbitration process. The Court specifically ruled that, whenever possible, it
was required to favour recourse to arbitration and discourage recourse to the
ordinary courts “which necessarily have the effect . .
. of halting an arbitration in mid-stream and frustrating the parties’ desire
to make use of this method for settling their disputes.” It is worth
reproducing the relevant excerpts from that decision:
[18] On a review of the above quoted
provisions of the Code, it seems clear to me that the determination of
questions relating to their own jurisdiction falls squarely within the powers
granted to the arbitrators themselves (see especially article 16). The
Court is directed, by article 8, to defer any arbitrable questions to the
arbitrators and, logically, this would include any question of the arbitrators’
powers. That this is indeed the case is made even clearer by
subsection 34(4). The highest authority ruled that objections to
arbitrators’ jurisdiction should be made to and decided, at least initially, by
the arbitrators themselves (Dell Computer Corp. v. Union des consommateurs,
2007 SCC 34, [2007] S.C.J. No. 34 (QL). See also Rogers
Wireless Inc. v. Muroff, 2007 SCC 35 at paras. 11-13,
[2007] S.C.J. No. 35 (QL)).
[19] Furthermore, it would appear to me that
as a matter of policy the Court should, whenever possible, favour recourse to
arbitration and discourage applications such as this one which necessarily have
the effect (and perhaps even the object) of halting an arbitration in
mid-stream and frustrating the parties’ expressed contractual intention to make
use of this method for settling their disputes. This is not a case in which the
Court is called upon to apply the traditional three part test for granting
interlocutory stays or injunctions ((Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110,
[1987] S.C.J. No. 6 (QL); RJR-MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311,
[1994] S.C.J. No. 17 (QL)). Rather, it is a case of the Court
having no discretion but to give effect to a clear direction founded in both
statute and in policy to respect the parties’ expressed desire to submit to
arbitration (Nanisivk Mines Ltd. v. F.C.R.S. Shipping Ltd., [1994]
2 F.C. 662, [1994] F.C.J. No. 171 (C.A.) (QL)). It is
not beside the point to note that the arbitrators have already held a full nine
weeks of trial and have given a detailed and lengthy award resulting therefrom.
(See also: Comtois International Export
Inc. v. Livestock Express BV, 2014 FC 475, at paragraph 34)
[36]
I am aware that there are two exceptions to the “competence-competence” principle, which allow
ordinary courts to decide on an arbitrator’s jurisdiction if the challenge to
the arbitrator’s jurisdiction is based solely on a question of law or, in cases
involving questions of mixed law and fact, the questions of fact require only
superficial consideration of the documentary evidence in the record.
[37]
However, I am satisfied that when faced with
such a question when the arbitration process has already begun, it is open to
an ordinary court, in the name of respect for the intentions of the parties and
to preserve decision-making autonomy within the arbitration system, the
legitimacy of which is henceforth fully recognized by Parliament (Desputeaux,
at paragraph 40), to determine that it is up to the arbitrator
to rule first on this issue. In my opinion, that exception, so to speak, to
the exceptions to the “competence-competence”
principle, find solid support in both federal and Quebec case law dealing with
the arbitration system. As the Court of Appeal of Quebec affirmed in Dens Tech,
[translation] “The exception to the general principle, which would enable
the Superior Court to decide a question of law, as stated in Dell, only applies
when the court is first seized of an action and then later presented with an
application for referral under article 940.1 of the C.C.P.,” which
was precisely the case in Ferreira and SMC Pneumatics (UK) Ltd.,
above.
[38]
In light of all the foregoing, I therefore
cannot be persuaded that, in finding that there is reason, given that the
Attorney General’s declaratory relief was initiated when the arbitration
process had already commenced, to refer the dispute between ADM and CBSA to
arbitration so that the decision as to which forum has jurisdiction to rule on
said dispute is first decided by the arbitration tribunal, the exercise of
discretion by Prothonotary Morneau was based upon a wrong principle or a
misapprehension of the facts and, as a result, is clearly wrong. I also cannot
convince myself that that decision, insofar as it has the effect of suspending,
not dismissing, the declaratory relief initiated by the Attorney General,
addresses questions vital to the final issue of the case and that,
consequently, a more strict standard of review should be applied. Regardless,
I would have reached the same findings as Prothonotary Morneau, had ADM’s
motion first been submitted to me.
[39]
I also agree with his view that the principle of
proportionality is of no help to the Attorney General in this case. Moreover,
I find it paradoxical to invoke this principle when Parliament and the courts
have expended so many efforts for several years to recognize the legitimacy and
importance of arbitration and to make it the preferred method of resolving
disputes in matters to which it applies (Desputeaux, at
paragraph 40). I also agree with ADM when it writes at paragraph 115
of its memorandum:
[translation]
115 If this reasoning were followed, one would have to conclude that the party
who is served the notice of arbitration and who wishes to avoid it, would
merely have to ignore the notice, come before the court and, lastly, ask it to
rule not only on the arbitration tribunal’s jurisdiction, but at the same time,
on the merits of the dispute as well, in the interests of judicial economy.
[40]
This is sufficient in my view to dispose of the
Attorney General’s appeal, especially since deciding whether or not the
resolution of the dispute between ADM and CBSA is based exclusively on an interpretation
of section 6 of the Customs Act, as the Attorney General is asking
us to do, would be tantamount to, in my view, deciding the arbitrability of the
dispute and, in so doing, usurp the efforts of the arbitration tribunal.
B.
The public order argument
[41]
Lastly, the argument intended to be, it seems,
preliminary, to the effect that said dispute is not arbitrable because it
raises an important matter of public order within the meaning of
article 2639 of the CCQ, affects, in my opinion, the jurisdiction of the
arbitration tribunal. For the reasons discussed above, it will therefore be up
to it to dispose of, especially since some caution is appropriate in this case
given that, as the Supreme Court noted in Desputeaux, a broad
interpretation of the concept of public order in article 2639 of
the C.C.Q. has been expressly rejected by the legislature, that public order
arises primarily when the “validity” of an
arbitration award must be determined, and that mere consideration of statutory
provisions does not mean that the decision may be annulled or even that the
arbitrator is not compelled to stay his or her proceedings (Desputeaux,
at paragraphs 53–54; Dens Tech, at paragraph 31).
[42]
The Attorney General’s appeal will therefore be
dismissed.
[43]
ADM seeks costs, assessed at $1,920.00. Based
on the Attorney General’s submissions at the hearing, it is my understanding
that he did not object to either the amount claimed or the manner in which it
was calculated. Under the discretion vested in me in this regard, ADM is entitled
to costs in the above amount, which I do not find unreasonable under these
circumstances.
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