IN THE SUPREME COURT OF BRITISH COLUMBIA
In the Matter of the Commercial Arbitration Act,
R.S.B.C. 1996, c. 55
And in the Matter of an Arbitration
Between:
Pat Morton
Petitioner
And
H&R Block Canada Inc.
Respondent
Before: The Honourable Mr. Justice Burnyeat
Reasons for Judgment
In Chambers
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Counsel for the Petitioner: |
T. F. Beasley |
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Counsel for the Respondent: |
A. P. Prior |
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Date and Place of Hearing: |
July 10, 2007 |
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Vancouver , B.C. |
[1] Applying pursuant to s. 21 of the Commercial Arbitration Act, R.S.B.C. 1996, c. 55 (“ Act”) and ss. 2-5 of the Judicial Review Procedure Act, R.S.B.C. 1996, c.241, the Petitioner seeks leave to appeal the December 15, 2006 Final Award (“Award”) of an Arbitration Panel (“Panel”) relating to questions which were submitted to the Panel for arbitration pursuant to the provisions of the Act and pursuant to the arbitration provisions contained within a “Satellite Franchise Agreement” dated October 7, 1977 (“Franchise Agreement”) between H&R Block Canada Inc. (“Block”) and Donalda Kennedy. Subsequently Ms. Kennedy assigned her rights under the Franchise Agreement to the Petitioner, Pat Morton (“Ms. Morton”).
PROVISIONS OF THE FRANCHISE AGREEMENT
[2] The portions of the Franchise Agreement which are in issue are set out in paragraphs 7, 9, and 12 of the Franchise Agreement. Paragraph 7 reads in part:
Block shall further supply, without charge, all such other items set forth as items free (except for freight and insurance) to Franchisee in the H & R Block Policy and Procedure Manual as may be amended from time to time (the “Manual”).
[3] Paragraph 9 of the Franchise Agreement provides in part that Ms. Morton as the Franchisee “… shall manage and conduct the business in accordance with the rules and regulations set forth in the Manual”. (emphasis added)
[4] Paragraph 12 of the Franchise Agreement sets out the “ARBITRATION” paragraph as follows:
Except as to a breach for non-payment of the franchise royalty, the provisions relating to arbitration shall be applied to any alleged breach of this Agreement and any other disputes that may arise from time to time, but no other rights and privileges of the parties hereto under any other provisions of this Agreement shall be affected by the results of any such arbitration procedure. The arbitrators shall have no right to include or decide issues not directly involved in any dispute before them. The decision of the arbitrators shall be by a majority thereof. The expense of arbitration shall be borne equally by Block and Franchisee. The arbitration shall be open to all interested parties, subject to the rules of the arbitrators. The decision of the arbitrators shall be legally binding upon the parties thereto. The location of any arbitration proceeding shall be determined by the arbitrators.
THE ARBITRATION AGREEMENT
[5] The November 2006 Arbitration Agreement between the parties set out the following matters which were submitted to the Panel for arbitration:
1. Did H&R Block advise Allianz that Ms. Morton had an option to transfer her license to it; further, did H&R Block instruct Allianz to cancel Ms. Morton’s license and, if so, is she entitled to compensation? [“ ALLIANZ ISSUE”]
2. Is Ms. Morton required to have her clients sign Yes/No on the current privacy agreement provided by H&R Block, thereby agreeing to the current privacy agreement? [“ PRIVACY AGREEMENT ISSUE”]
3. Is H&R Block entitled to receive a list of all programs on Ms. Morton’s personally owned computers? [“ PERSONAL COMPUTER ISSUE”]
4. Is H&R Block required to provide a copy of the policy and Procedure Manual in printed form and should changes to the Policy and Procedure Manual be forwarded to Ms. Morton in printed form or in an electronic format on a regular basis; further, what amount (if any) is H&R Block entitled to charge Ms. Morton for printed copies of the Policy and Procedure Manual, any forms it contains and/or any changes to it? [“ HARD COPY MANUAL ISSUE”]
5. Is H&R Block required to provide Ms. Morton a computer program which will provide the forms for tax preparation with only having to sign a license not to use the program for any other purpose? [“ COMPUTER PROGRAM ISSUE”]
APPLICABLE PROVISIONS OF THE ACT
[6] Section of the Act provides:
31 (1) A party to an arbitration may appeal to the court on any question of law arising out of the award if
(a) all of the parties to the arbitration consent, or
(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 this section, it may attach conditions to the order granting leave that it considers just.
CASE AUTHORITIES
[7] Only questions of law can be the subject of a review under s. 31 of the Act : T he Association of Administrative and Professional Staff v. University of British Columbia[2007] B.C.J. No. 1172 (Q.L.)(B.C.S.C.) where Ballance J. stated:
It is clear from subsection 31(1) of the CAA that a party to an arbitration may only appeal to this court on a question of law arising out of an award. Questions of fact and questions of mixed fact and law are immune from review: ( Ed Bulley Ventures Ltd. v. Eton-West Construction Inc., 2002 BCSC 826.) (at para. 33)
[8] Stating a general error in law is not sufficient. There must be specific questions of law stated in a petition. In Domtar Inc. v. Belkin Inc. , (1989), 39 B.C.L.R. (2d) 257 (B.C.C.A.), Lambert J.A. on behalf of the Court stated:
As a matter of practice, it is essential that the petition for leave under s. 31 should state the question or questions of law on which leave to appeal is requested. A general allegation of error in law is not sufficient. In my opinion, leave should not be granted except on specific questions of law, identified and stated in the petition. If the applicant for leave does not state a precise question of law which can be argued about in relation to s. 31, neither the opposing party nor the judge will be able to come to grips with the issues that must be considered under the section. (at para. 8)
[9] In this regard, Parrett J. in Student Assn. of British Columbia Institute of Technology v. British Columbia Institute of Technology[1999] B.C.J. No. 554 (Q.L.)(B.C.S.C.) referred to the decision in Domtar, supra, and then stated:
The petition in the present case fails to meet the standard referred to by Lambert, J.A. In paragraph 22 of the petition this aspect of the proceeding is cast in these terms:
22. The arbitration is of sufficient importance to the parties to justify the intervention of this Honourable Court in a determination of the points of law which arose in the arbitration to prevent a miscarriage of justice.
It is questionable at best whether, within the context of the application for leave under s. 31 a precise question of law is stated at all. (at 47-8)
[10] An appeal is also restricted to questions of law that arise from the award itself as opposed to questions of law that arise out of the dispute between the parties: Domtar, supra, at paras. 17-8.
[11] Assuming that a question of law is identified, the Court must then be satisfied that one of the preconditions set out in s. 31(2)(a), (b), or (c) of the Act is met. The consideration of whether one of the preconditions is met should be examined on a “principled basis”. In Student Assn. of the British Columbia Institute of Technology v. British Columbia Institute of Technology , (2000) 80 B.C.L.R. (3d) 266 (B.C.C.A.), Saunders J.A. on behalf of the Court stated:
In my judgment, s. 31(2)(a) ought to be approached in this fashion. Firstly, the court must satisfy itself that one of the conditions precedent set out in s. 31(2)(a), (b) or (c) is met. Thereafter it should exercise its discretion, and not by establishing a stringent rule applicable to only one subsection, but on a principled basis.
How, then, should a court approach a leave application under s. 31(2)(a)? There are three requirements:
[1] the importance of the result of the arbitration to the parties justifies the intervention of the court;
[2] the determination of the point of law may prevent a miscarriage of justice;
[3] granting leave is an appropriate exercise of judicial discretion.
The first criterion is, in my view, well described in Domtar Inc. v. Belkin Inc.:[ (1989), 39 B.C.L.R. (2d) 257 (B.C.C.A.)] is the result of the arbitration sufficiently important, in terms of principle or money, to the parties that the expense and time of court proceedings is justified. This criterion excludes frivolous appeals and appeals on non-weighty matters.
The second criterion was described in Domtar Inc. v. Belkin Inc. as whether, if the point of law were decided differently, the arbitrator would have been led to a different result. In other words, was the alleged error of law material to the decision; does it go to its heart? I agree that this is the essential consideration for a party prepared to spend the time, money and energy on an appeal.
Where, then, if anywhere, does consideration of the merits of the appeal belong? Mr. Roberts for the Student Association contends that any consideration of the merits of the appeal belong in the determination of whether a miscarriage of justice may occur; that is, under the second criterion. I do not agree. In my view, the apparent merit or lack of merit of an appeal is part of the exercise of the residual discretion, and applies equally to all three subsections, (a) through (c). Just as an appeal woefully lacking in merit should not attract leave under (b) (of importance to a class of people including the applicant) or (c) (of general or public importance), so too it should not attract leave under (a). Consideration of the merits, for consistency in the section as a whole, should be made as part of the exercise of residual discretion.
In considering the merits of an appeal or lack thereof, an appellant should establish more than an arguable point. The merits of the appeal, while not requiring that the award is obviously wrong or the decision is patently unreasonable, must have sufficient substance to warrant the appeal proceeding. And on this I would not expect the appeal itself to be argued on the leave application.
I do not consider that the application of any formula will determine whether a chambers judge should exercise discretion and grant leave to appeal. The discretion is to be exercised judicially, that is, trial judges will take into consideration those matters with which they are well familiar. Those matters include the apparent merits of the appeal, the degree of significance of the issue to the parties, to third parties and to the community at large, the circumstances surrounding the dispute and adjudication including the urgency of a final answer, other temporal considerations including the opportunity for either party to address the result through other avenues, the conduct of the parties, and the stage of the process at which the appealed decision was made (in my view, unlike the facts in "The Nema", [ Pioneer Shipping Ltd. v. B.T.P. Tioxide Ltd., [1982] A.C. 724] interlocutory orders would rarely, if ever, pass the sieve of judicial discretion). Undoubtedly included in this assessment will be respect for the forum of arbitration, chosen by the parties as their means of resolving disputes, and recognition that arbitration is often intended to provide a speedy and final dispute mechanism, tailor made for the issues which may face the parties to the arbitration agreement. (para. 25-31)
AWARD OF THE PANEL, DISCUSSION, AND DECISION
[12] Regarding the ALLIANZ ISSUE, the Panel set out that Block entered into a distribution agreement with Allianz Education Fund Inc. (“Allianz”) for the distribution through existing franchises by Block of individual scholarship plans or Registered Education Scholarship Plans (“RESP”). Block informed Ms. Morton that she was not eligible to participate in the Block distribution of the products of Allianz. Once that refusal was received, Ms. Morton approached Allianz directly and was granted a licence by Allianz to sell their scholarship plans. Ms. Morton informed Block of this fact by an October 15, 2003 email transmission. Block then contacted Allianz to take the position “this needs to be cancelled ASAP”.
[13] The Panel quoted Clause 11 of the agreement between Allianz and Block which provided:
Neither party shall without the prior written consent of the other during and for a period of two years after the termination of a Initial Term or any Renewal Period, directly or indirectly, solicit for employment, hire or contract with any full time or part time employee of the other party across Canada. For the purposes of this clause 11 only any registered full-time or part-time employee of any Franchisee or a Franchisee, if an individual, or the owner of a Franchisee shall be considered a Block employee, and any representative or employee of AEFI shall be considered an AEFI employee.
[14] After reviewing the criteria for the torts of unlawful interference with economic relations and of inducing breach of contract, the Panel came to the conclusion that both torts required an element of unlawfulness or lack of justification. The Panel concluded that Block did advise Allianz that Ms. Morton had an option to transfer her licence to it and that Block had demanded that Allianz cancel her licence if she did not transfer her licence. However, the Panel came to the conclusion that Block was justified in taking this position and that Ms. Morton was not entitled to any compensation:
In the present case, Block had an agreement with Allianz which it saw as being breached if Allianz employed Ms. Morton and her son as agents for the sale of its scholarship plans. Allianz’s reaction when the matter was brought to its attention signifies that it too saw such an arrangement as being contrary to its obligations under the distribution agreement. Also, Block had a legitimate interest to protect; i.e., its ability and obligation to comply with respect to compliance with the regulatory authorities if one of its franchisees was selling scholarship plans but was not subject to the controls that Block would normally have had in place under the CF-10 franchise agreement. Block’s ability to comply may have been severely hampered. Block was justified in enforcing its contractual rights and ensuring that it remained in compliance with the securities regulators. Its conduct was not unlawful and, in the circumstances was justified. It did not amount to either interference with economic relations or an inducement of breach of contract.
[15] Regarding the Award, subparagraphs (b)(vi) through (x) of the Petition of Ms. Morton requests that the Court set aside that portion of the Award dealing with the ALLIANZ ISSUE and hold that:
(vi) Block can not enter into a contract with a third party, including Allianz Education Fund Inc. (“Allianz”), which purports to affect the contractual rights of Franchisees, including the Petitioner;
(vii) Without a separate contractual agreement with its Franchisees, Block can not require others, including Allianz, to cancel or affect, contracts or licenses with its Franchisees, including the Franchisees under the CS-7 Agreements, including the Petitioner;
(viii) Block does not have the right at law or in equity to induce others including Allianz to breach contracts or unlawfully interfere with economic relations of the Franchisees under the CS-7 Agreements including the Petitioner, including the cancelling of the Petitioner’s license to sell under the Petitioner’s contract with Allianz;
(ix) The Award condones an unlawful restraint of trade by Block on the Franchisees under CS-7 Agreements including the Petitioner, including with their trade generally and with Allianz;
(x) The Award condones an unlawful interference by Block with the economic relations of the Franchisees under CS-7 Agreements including the Petitioner, and including with the Petitioner’s economic relations with Allianz.
[16] Those subparagraphs are described as “questions of law” or “points of law”. However, I have concluded that those portions of the Petition dealing with the ALLIANZ ISSUE do not set out questions of law arising from the Award. On that basis alone, that part of the Petition should be dismissed. The Petition might well have set out questions of law such as “the Panel erred in concluding that the steps taken by Block were not tortuous activities including interference with economic relations or inducement of breach of a contract”, “the Panel erred in concluding that the actions taken by Block did not amount to an unlawful restraint of trade”, or “the Panel erred in concluding that Block could enter into an contract with a third party which would adversely affect the contractual rights that Ms. Morton had with Block.” However, that is not what is set out in the Petition as the questions of law.
[17] Assuming that Ms. Morton could overcome this initial hurdle, the questions raised in subparagraphs (b)(vi) through (b)(x) of the Petition relate not to questions of law but to questions of mixed law and facts. It is question of fact or mixed fact and law whether the terms of the Agreement would permit Block to require Allianz to “cancel or affect” any contract or license that Allianz might have with Ms. Morton or whether the terms of the Agreement would prohibit Block from entering into an agreement with Allianz which purported to affect the contractual rights of Ms. Morton.
[18] Assuming that Ms. Morton can overcome this further hurdle, the question is whether the provisions of s. 31(2) of the Act have been satisfied. The “points of law” are not of general or public importance. There is no suggestion that the “points of law” are of importance to other franchisees of Block. In fact, it is clear that only a few franchised holders are operating under the form of Satellite Franchise Agreement which is in effect between Ms. Morton and Block. In the circumstances, I am satisfied that importance of the decision of the Panel relating to the ALLIANZ ISSUE does not justify the intervention of the Court and that no miscarriage of justice will result in leave to appeal to the ALLIANZ ISSUE is denied. Additionally, I cannot be satisfied that Ms. Morton has developed an argument of sufficient substance to warrant the appeal procedure.
[19] I am also satisfied that Ms. Morton will have other avenues to address the results. In particular, Ms. Morton may well be in a position to pursue Allianz in an action for breach of contract or Block for the tortuous activities alleged. In the circumstances, leave is not granted relating to subparagraphs (b)(vi) through (b)(x) of the Petition.
[20] Regarding the PRIVACY AGREEMENT ISSUE, the Manual requires franchisees such as Ms. Morton to obtain the signatures of their clients on the form setting out the privacy policy established by Block. It was the position of Ms. Morton before the Panel that:
… rather than protecting her clients’ privacy it has the opposite effect as it allows Block to, and use of, her clients’ private information. She is concerned that Block will use the information to which it would have access to contact her clients directly and to perhaps solicit their business.
[21] In this regard, the Panel concluded:
Block’s privacy policy may be complicated and go beyond what is legally required but it is a reasonable and appropriate one. Ms. Morton’s privacy policy may be adequate. The test is not, however, which policy is better; the test is what have the parties agreed. Ms. Morton has agreed to operate her business in accordance with the Manual and she is therefore bound to utilize the Block privacy policy.
We therefore conclude that Ms. Morton is required to have her clients sign the current privacy assurance form in accordance with Policy C3120. If her clients do not wish to receive additional information from Block, they must check the box on the form.
[22] Regarding the PRIVACY AGREEMENT ISSUE, Ms. Morton seeks an order in subparagraph (b)(xi) of the Petition that the Court set aside that portion of the Award dealing with the PRIVACY AGREEMENT ISSUE and amend the Award and hold that:
(xi) Block can not require that clients of Franchisees, including the Petitioner’s clients, must sign Block’s Privacy Agreements, without allowing clients a clear option of not allowing the disclosure. The Block Privacy Agreement, once signed, only permits clients to acknowledge that they do not want Block to send them any unnecessary financial or tax-related information. The clients should not be required to sign the Block Privacy Agreement if the clients do not want Block and its affiliates to have their personal information.
[23] Again, that is described as the question of law. However, what is set out in subparagraph (b)(ix) of the Petition can hardly be described as a question of law. In the absence of a question of law set out in subparagraph (b)(xi) of the Petition relating to the PRIVACY AGREEMENT ISSUE, this part of the Petition should also be dismissed. Some of the problem in this regard relates to the Arbitration Agreement and the question that was to be answered by the Panel. The Panel has answered the question that was posed and the pertinent paragraph of the Petition relating to that decision lacks a specific question of law for which leave to appeal is requested.
[24] Assuming that a specific question of law was set out, it is also apparent that there are other more appropriate opportunities for Ms. Morton to address the question she is posing and a more appropriate avenue for that question to be determined. The question of whether the Block Privacy Agreement complies with the provisions of the Personal Information Protection Act, R.S.B.C. 2003, c. 63 lies with the Commissioner appointed under the Freedom Information Protection of Privacy Act or under the Federal Personal Information Protection Electronic Documents Act ( Canada). If Ms. Morton is concerned about what she is required to have her clients sign is not in accordance with the legislation, then she can follow up with a complaint regarding the Block Privacy Agreement.
[25] In any event, taking into account the matters which are set out in s. 31(2) of the Act, I am not satisfied that leave to appeal should be granted relating to the PRIVACY AGREEMENT ISSUE. In subparagraph (b)(iv) of the Petition, Ms. Morton requests that the Court set aside the Award or amend the Award and hold that: “The Block Manual is not mandatory to, and is a guideline only, to business operations and practices of the Franchisee Agreements, including the Petitioner.” It appears to be the basis of the request in the Petition relating to the PRIVACY AGREEMENT ISSUE. However, the Manual is not a guideline. Ms. Morton has agreed to “manage and conduct” her business in accordance with the Rules and Regulations set forth in the Manual which includes the requirement that her clients sign the particular Block Privacy Agreement set out in that Manual from time to time. The determination by the Panel that the word “shall” means “shall” could not considered an error of law so that it cannot be said that the discretion of the Court should be invoked to grant leave to appeal the PRIVACY AGREEMENT ISSUE.
[26] The provision of the Manual is clear. As it is used in paragraph (9) of the Manual, the word “shall” translates into that which must be done by a holder of a Block Franchise. Ms. Morton is not in a position to follow the provisions of the Manual when she manages and conducts her business only when those provisions suit her. As well, it is a question of mixed fact and law whether, because of the course of conduct between Ms. Morton and Block or as a result of custom in the industry, there is an implied term in the Agreement that the Manual will only serve as guidance to franchisees such as Ms. Morton.
[27] The “point of law” regarding the PRIVACY AGREEMENT ISSUE is not of general or public importance, there is no evidence that the “point of law” is of importance to the Franchise holders as a group, and there is a more appropriate and available avenue for the concerns of Ms. Morton to be raised — with those who are mandated to provide a final and binding decision relating to her concerns. Accordingly, leave is not granted relating to subparagraphs (b)(iv) and (b)(xi) of the Petition.
[28] Regarding the PERSONAL COMPUTER ISSUE, the Panel noted that Block agreed to supply tax preparation software to its franchisees at no cost and, in return, franchisees were required to sign a “Software Licence Agreement”. Ms. Morton refused to sign the version that was presented to her in September, 2005. The Software Licence Agreement contains provisions such as the requirement that franchisees provide a list of non-Block software being used and not to have non-business software on computers on which Block software is being used.
[29] In concluding that Block was entitled to receive a list of all programs on the personally owned computers of Ms. Morton on which Block software was being used, the Panel concluded:
Ms. Morton is not obliged to obtain her software from Block, and there is no obligation on Block under the Franchise Agreement to provide the software. Ms. Morton has elected to use Block’s software and has signed the Software License Agreement. The Software License Agreement requires franchisees to disclose non-Block and non-business software. Having signed the agreement, Ms. Morton has agreed to these terms and, if requested by Block, is required to provide the list of such programs. In future years, if Ms. Morton continues to object to the terms of the Software License Agreement she can choose to obtain software elsewhere.
[30] Relating to the decision of the Panel in that regard, Ms. Morton asks the Court in subparagraph (b)(iii) of the Petition to set aside or amend the Award and hold that:
(iii) Block must provide all Block computer software programs to the Franchisees, including the Petitioner, and that this software is subject only to the standard computer industry License Agreements and is not subject to Block’s Privacy Agreements;
[31] That subparagraph does not set out a question of law. Assuming that a question of law was set out in this subparagraph of the Petition, I am satisfied that the provisions of s. 31(2) of the Act are not met and that, in any event, I should not grant leave to appeal the question set out in that subparagraph of the Petition. First, it is clear that the Software Licence Agreement requires Ms. Morton to list all the programs running on the personally owned computers of Ms. Morton where Block Software is being run. Second, neither the Panel nor the Court could be in a position to require Block to amend its Software Licence Agreement as is requested by Ms. Morton. Third, there is nothing to indicate that the “point of law” raised in this regard is of importance to other franchisees or is of general or public importance.
[32] I am satisfied that nothing justifies the intervention of the Court. No miscarriage of justice will be prevented if the “point of law” is determined. Accordingly, the part of the Petition dealing with the PERSONAL COMPUTER ISSUE is dismissed.
[33] Ms. Morton now takes no issue of the determination of the Panel regarding the HARD COPY MANUAL ISSUE and, accordingly, is not proceeding with the matter set out in subparagraphs (b)(i) or (b)(ii) of the Petition.
[34] Regarding the COMPUTER PROGRAM ISSUE, the Panel concluded:
Block is under no obligation to provide software to its franchisees under the CS-7 Franchise Agreement. Block is required to provide forms under paragraph 7 of the CS-7 Franchise Agreement. If Ms. Morton wishes to carry on her business using printed forms, Block would be required to provide those. If she wishes to carry on her business using computer generated tax preparation, she can either buy software from a third party or buy it from Block. She is not obligated to buy it from Block, and therefore not obligated to sign any Software License Agreement with Block. However, if she chooses to do so, she is be obliged to agree to whatever terms and conditions Block wishes to impose in return for supplying such software. This would include signing the Software License Agreement.
[35] Regarding this part of the Award, Ms. Morton asks the Court in subparagraph (b)(xiii) of the Petition to set aside this part of the Award or amend the Award and hold that:
(xii) Block can not require Franchisees, including the Petitioner, to sign License Agreements for the use of computer software which is different and more restrictive than standard computer industry License Agreements, or in the alternative, that Block must provide the Franchisees, including the Petitioner, with computer software programs which are subject only to the standard computer industry license agreement, and which should not include any other contractual obligations.
[36] Again, no question of law is set out in that subparagraph of the Petition. Even if I could find that there was a question of law set out, I would not grant leave to appeal that subparagraph of the Petition as there is no merit to the complaint of Ms. Morton in that regard. First, the Panel is correct in concluding that Ms. Morton was not required to sign the Block Software Licence Agreement. Second, the Court would not be in a position to require Block to provide computer software programs that were “…subject only to the standard computer industry licence agreement, and which should not include any other contractual obligations”. Third, there is no suggestion that this is a matter of importance to Block franchisees. Accordingly, that part of the Petition dealing with the COMPUTER PROGRAM ISSUE is also dismissed.
[37] In subparagraph (b)(xiii) of the Petition, Ms. Morton asks the Court to set aside the Award or amend the Award and hold that:
(xiii) Block must compensate the Petitioner for damages, on the noted Points of Law and Questions of Law including damages for breach of the Franchise Agreement and for damages arising out of the cancellation of the contract of the Petitioner with Allianz, in the sum of $300,000 in general damages and $1,000,000 in punitive damages.
[38] The Arbitration Agreement did not request the Panel to assess damages. Rather, it was a request that the Panel decide on whether Ms. Morton was “entitled to compensation”. As a result, the Panel did not deal with the amount of any compensation. I am satisfied that there can not be an appeal from this Award of this Panel when no decision was reached on the matter for which leave is sought. Accordingly, the relief sought in subparagraph (b)(xiii) of the Petition is also dismissed.
[39] While the Petition may well raise a number of questions of the law that arise out of the dispute between the parties regarding the proper interpretation of the Agreement, I am satisfied that this appeal does not raise the questions of law that arise from the Award of the Panel. Accordingly, the Petition is dismissed. Leave is not granted to appeal any of the matters referred to in the Petition as “questions of law” or “points of law”. The Respondent H&R Block Canada Inc. will be entitled to its costs of these proceedings on a Scale “B” basis.
“The Honourable Mr. Justice Burnyeat”
