Cassels recently successfully represented Trevali Mining Corporation in defending an application for leave to appeal an arbitral award concerning the contractual interpretation of a 1990 agreement conferring a 10% net profits interest in a zinc mine (the NPI). Trevali is the operator of the mine and the obligor under the NPI. The underlying arbitration arose from the Fern Trust’s objection to Trevali’s calculation of the net profit under the NPI. The arbitrator determined that Trevali had properly included the expenses incurred over the course of the life of the mine in calculating its net profits. The holder of the NPI appealed, seeking to limit the offsetting expenses to those incurred during Trevali’s ownership, which began in 2012.
Justice Pattillo of the Ontario Superior Court of Justice (Commercial List) dismissed the application for leave to appeal. The applicant had alleged that the arbitrator made numerous errors in law which gave rise to three extricable questions of law (relating to his alleged misapprehension or mischaracterization of the language and legal nature of the NPI, and failure to apply relevant evidence and principles of contractual interpretation). Justice Pattillo agreed with Cassels that the arbitrator’s award did not raise any questions (or errors) of law accordingly, that there was no basis to grant leave to appeal.
Trevali was represented at the arbitration and on the leave application by Lara Jackson, Colin Pendrith, and Kate Byers, with support from Jonathan Shepherd.