Parrish & Heimbecker Ltd. v. TSM Winny AG Ltd.

At a glance

Parties

Parrish & Heimbecker Ltd. (applicant/plaintiff) v. TSM Winny Ag Ltd. (respondent/defendant)

Case no.

QBG 368 of 2020 (Judicial Centre of Saskatoon); 2020 SKQB 348

Court

Court of Queen's Bench for Saskatchewan, Elson J.

Underlying award(s)

Award of the Appeals Committee of the National Grain and Feed Association (NGFA), 10 January 2020, reversing the NGFA arbitration panel award of 7 June 2019

Treaty

New York Convention 1958 (as adopted by The Enforcement of Foreign Arbitral Awards Act, 1996, SS 1996, c E-9.12) and UNCITRAL Model Law (The International Commercial Arbitration Act, SS 1988-89, c I-10.2)

Sector

Agricultural commodities; grain trade

Outcome

TSM's objections were rejected. The application was adjourned so that P&H could file certified copies of the award and the arbitration agreement, after which a recognition and enforcement order may issue.

Amount

Award: CAD 75,901.14 (CAD 55,481.14 damages plus CAD 20,420 administration fees). P&H was awarded its costs of the application; the amount was reserved.

The dispute

Parrish & Heimbecker Ltd. (P&H), a grain buyer, sent TSM Winny Ag Ltd. (TSM) a Purchase Confirmation dated 5 June 2017 for 2,042 metric tonnes of Canada Western Red Spring Wheat, for delivery in October 2017. Clause 12 of the confirmation provided for arbitration under the NGFA Arbitration Rules. TSM never signed the contract. On 23 June 2017 TSM's president texted that there would be "no contracts without act of god", and P&H cancelled the contract and invoiced TSM CAD 102,937.22. An NGFA panel found that a binding contract existed but awarded no damages. On appeal, the NGFA Appeals Committee awarded P&H CAD 75,901.14. P&H then applied in Saskatchewan to have the award recognised and enforced. TSM raised three objections: there was no "agreement in writing"; P&H had not filed certified copies of the award and the agreement; and the award went beyond the scope of the submission to arbitration.

Key holdings

1. Under Article I(1), (3), Article II(1)–(2), Article IV(1) and Article V of the New York Convention, an applicant must meet six criteria, as set out in Parrish & Heimbecker Ltd. v Bukurak. Once the applicant meets the procedural requirements, the award 'shall' be recognised. The respondent then bears the burden of proving a ground for refusal. Even where a ground is proven, the court keeps a discretion to enforce. ¶¶ 15, 17
2. There was an agreement in writing. Neither the Convention nor the Model Law requires the agreement to be signed by both parties. The word 'telegrams' in Article II(2) should be read to cover modern electronic communications such as fax, text and email. TSM received the written contract containing the arbitration clause and affirmed it by its conduct. ¶¶ 41–44
3. The photocopies P&H filed were not 'certified' under Article IV(1) of the Convention and Article 35(2) of the Model Law. A certified copy is one signed and certified as a true copy by the officer who has custody of the original: for the award, an NGFA officer; for the contract, an appropriate P&H officer. Because these requirements are mandatory, the court adjourned the application to let P&H file certified copies rather than dismissing it. ¶¶ 47–48
4. The Appeals Committee went beyond the submission to arbitration (Model Law Article 36(1)(a)(iii)). It decided that Clause 7 of the contract superseded NGFA Grain Trade Rule 28, but the parties had argued only Rule 28. ¶ 51
5. The court nonetheless declined to refuse enforcement on this ground. TSM showed no challenge to the award in the United States and no argument it could have made against the Committee's reasoning, so it showed no palpable prejudice. Grounds for refusal are to be read narrowly. Enforcement should be refused only for palpable and overriding prejudice akin to a denial of natural justice. ¶¶ 52–54
6. Once certified copies are filed within a reasonable time, an order recognising and enforcing the award may issue. P&H is entitled to its costs; the amount is reserved. ¶¶ 55–56

Procedural history

1. 5 June 2017P&H prepares a Purchase Confirmation containing an NGFA arbitration clause. It emails the confirmation to TSM on 7 June 2017.
2. 28 June 2017P&H cancels the contract and issues a Contract Cancellation Invoice for CAD 102,937.22.
3. 3 October 2017P&H files a complaint with the NGFA.
4. 7 June 2019The NGFA arbitration panel finds that a binding contract existed but denies P&H damages.
5. 21 June 2019P&H appeals to the NGFA Appeals Committee.
6. 10 January 2020The Appeals Committee unanimously allows the appeal and awards P&H CAD 75,901.14.
7. 31 December 2020The Queen's Bench for Saskatchewan rejects TSM's objections and adjourns the application pending the filing of certified copies.

Tribunal, counsel and experts

Decided by

• R.W. Elson Judge, Court of Queen's Bench for Saskatchewan

For the claimant

Nikita B. Rathwell

For the respondent

Terry J. Zakreski

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Keywords

• New York Convention
• recognition and enforcement
• agreement in writing
• Article II(2)
• electronic communications
• certified copy
• Article IV
• excess of mandate
• Model Law Article 36(1)(a)(iii)
• National Grain and Feed Association
• NGFA Appeals Committee
• grain trade
• wheat
• Saskatchewan
• unsigned contract
• acceptance by conduct
• natural justice

Summary generated with AI from the published documents — refer to the award for the authoritative text.