Aviva argues the opposite — that the April 2016 amendments created an expectation in the industry that issues may not be added to existing arbitrations. I give little weight to this argument. Aviva did not lead evidence or argue that there has been a regular and established practice at FSCO of prohibiting parties from adding issues after April 1, 2016. Moreover, the practice of adding issues was common at FSCO long before April 2016 and, as such, appears to me to be more established than any expectation that may have been created after the April 2016 amendments. As such, the expectation that the practice continue is more reasonable and legitimate, in my view, than any expectation to the contrary.
Supported by the SPPA
In addition, I agree with Mr. Al-Khunfusi that FSCO’s practice of adding issues is supported by its obligations to uphold procedural fairness under the Statutory Powers Procedure Act.[6] Section 2 of the SPPA provides that the SPPA, and any rule made by a tribunal, shall be liberally construed so as to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. The SPPA also grants a tribunal the power, under subsection 25.0.1, to determine its own procedures and practices and, for that purpose, permits tribunals to make orders with respect to the practices and procedures that apply in any particular proceeding.
Consequently, I reject Aviva’s assertion that FSCO would breach section 2 of the SPPA by adding issues to arbitrations. This argument delegitimizes FSCO’s processes and procedures. If Aviva were correct, then FSCO would have been in breach of the SPPA for years.