Beware of Incompetent BC Arbitration

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MSI
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Beware of Incompetent BC Arbitration

Post by MSI »

As part of a response to a question on ARAS360 Replacement? we were reminded of a useless incompetent foray into the BC Arbitration process.
This is to warn others to stay away from BC Arbitration as it is skewed to BC companies.

McHenry Software was supposed to only be 2D/3D simulation part (Collide (msmac3D) + tractor trailer simulation + ATB etc) of the original BC company ARAS360 product
but
had to help on animation and interfaces...
  • The main problem we had with ARAS360 was that they weren't "ready for prime time" when they signed the contract with us (although in the contract they said they were!)
    • We spent the better part of the first year of the contract waiting,
      • and then the second year working on and helping ARAS360 develop and improve their initial interface and animation, etc., etc.
      • Then In a few short months we then added our preliminary simulation (Collide aka msmac3D) which was easy
  • However ARAS360 then did not pay per the contract (after many many broken promises of payment on release)
    • The first year ARAS360 paid per the contract
    • The second year ARAS360 feigned financial issues and promised payment on release of the software...but...
      • October 2011 software including COLLIDE went out, happy clients and additional sales were immediately brisk
      • Over the next few weeks or so ARAS360 promised 3 times via email to wire payment
        • 3 SEPARATE PROMISES acknowledging ARAS360 knew they owed the money
        • then ARAS360 said they weren't sending ANY payment and continued sales?!!
          • We stopped all work and said we would not work until and unless they got in compliance with the contract
      • ARAS360 continued sales at random arbitrary pricing (instead of the agreed upon pricing)
      • McHenry Software cannot live on broken promises!
    • December 2011 after several warnings and reminders to bring payments up to contract we were forced to stop work, cancel the contract, and sue to get control of our software back and stop them from illegally selling it
Quick Background on BC Arbitration in the McHenry Software vs ARAS360 case:
  • The initial BC lawyer we hired to review the contract created by ARAS360 missed a lot of mistakes/ambiguities intentionally or conveniently put in the contract by ARAS360 (ARAS360 wrote the contract!)
    • The initial BC lawyer Blair Forrest of Pusher Mitchell told me about the 'world class BC Arbitration' and the BCICAC
      • The arbitration was "handled" by BCICAC, a useless organization which now is known as VanIAC. The Centre did nothing but charge fees and provided NO guidance or review or guardrails to reel in the incompetent and wasteful arbitration process we encountered. NOTHING! Read on to see what they allowed to happen under their 'guidelines' of the so-called BC 'world class arbitration'.
    • For example the contract specifically included an appeal clause for legal errors
      • The initial BC lawyer Blair Forrest missed a MAJOR bomb put in the contract by ARAS360 (see appeals ruling below)
      • The contract also specifically stipulated pricing and annual minimums for the 5 YEAR EXCLUSIVE WORLDWIDE LICENSE FOR OUR SOFTWARE
        • ARAS360 gave our software away for much less than the agreed upon pricing and they didn't report to us sales information for over 18 months
          • Although we repeatedly asked for sales information vis email for months and this was ALL provided to the arbitrator who ignored or dismissed these facts.
        • After the first year they stopped paying per the terms of the contract (feigning financial issues...)
          • The initial BC lawyer Blair Forrest advised us that it was Ok to continue working since the contract guaranteed that the minimums ultimately would have to be paid
        • Once ARAS360 broke more promises of past due payment on the release of the software, per the initial lawyers instructions, we canceled the contract
          • This led to an attempt at mediation and arbitration
          • ARAS360 at last minute did not go to mediation
      • The initial lawyer suggested his BC law partner Steven Wilson to handle the arbitration.
        • 3 months into the arbitration and in response to ARAS360 dumping hundreds of documents on us just prior to the initial hearing, the BC lawyer Steven Wilson who was supposed to be handling our arbitration dropped representing us without cause:
          • When we tried to contact him after his dump his voice mail indicated he went on a family vacation instead of helping us in the arbitration...
            • We have nothing against family time BUT he should have at least gotten us some backup counsel or rescheduled the arbitration before dumping us without cause and taking personal leave.
            • How was this not malpractice by Steven Wilson? To dump a client without cause just prior to an arbitration hearing to go on vacation??!
            • And to add insult to injury, the BC lawyer Steven Wilson who without cause dumped us was somehow appointed to the BC Supreme court in 2018 ***!!
            • Incomprehensible!
          • And try as we may during and after this mess we couldn't get anyone to help us sue the initial BC lawyers Blair Forrest & Steven Wilson for negligence and/or malpractice.
            We did prepare initial filing for negligence: See
            • Draft of Negligence lawsuit we filed against the law firm Pusher Mitchell
              • Due to prohibitive costs and our experience in BC courts, it would no doubt be a waste of time and money
              • We COULD NOT find legal counsel to take the case on contingency!
            The BC legal system protects itself.
        • We were forced to rush and find and hire new BC counsel in short order after being dumped without cause by Steve Wilson since the arbitration was in process.
          • The arbitration was then delayed for months
      We unfortunately had a very expensive useless arbitration to try to stop illegal sales and distribution of our software.

      Rough cut of details on the painful useless 7 years (Dec 2011 to April 2018) of incompetent BC arbitration in a contract dispute with McHenry Software v ARAS360:
      • We "won" the lawsuit and rightfully got control of our software back
        • NOTE: we mainly "won" through our parallel litigation (recommended by the BC lawyer) to file in US to get a restraining order against ARAS360 to STOP illegal sales (which we did)
        • The US Federal court also found ARAS360 IN CONTEMPT OF COURT TWICE for continued use and sales of our software
      • The BC arbitrator J Gary Fitzpatrick did not penalize ARAS360 for changing the pricing without notice, failure to pay annual minimums, copyright infringement, and failure to meet other contract terms (??) or make them pay any of our legal costs
      • The BC arbitrator J Gary Fitzpatrick 45 page "ruling" was a mumbo jumbo of confused logic, failure to remember sworn testimony, contained many legal mistakes and illogical reasoning, used hearsay/speculation testimony instead of facts, etc. He somehow MISSED that they promised payment 3 TIMES??!! which in any other court would be seen at acknowledgement of monies owed
          • The BC arbitrator J Gary Fitzpatrick found ARAS360 illegally sold our software
            • YET inconceivably charged ARAS360 LESS per illegal sale than the specified contract percentage amount per sale for each ILLEGAL sale of the software
              • We should have gotten ALL monies gained by ANY illegal sales,
                • Not some stupid arbitrary percentage which was a smaller than contract specified percentage!!!
            • AND the BC arbitrator J Gary Fitzpatrick inconceivably charged NO PENALTY for the copyright infringement/illegal sales by ARAS360???!!
              • How is that a deterrent for future copyright infringement? hell it was rewarding them for illegal sales?!! They made more money on the illegal sales then us??
            • And ARAS360 dragged and delayed and blew smoke all over the entire arbitration proceedings...
              • Whereas the BC arbitrator J Gary Fitzpatrick chastised them several times during the proceedings threatening monetary sanctions for making the arbitration as expensive as a full blown court case
              • ARAS360 also intentionally and recklessly violated the confidentiality clause THEY imposed on the proceedings first by distributing in group email that 'they won' (no they didn't!) and second getting one of their minions to declare 'They won' (no they did not!) on a public form
              • See our Filing on the ARAS360 violation of the confidentiality clause ARAS360 imposed on the Arbitration
              YET
            • The BC arbitrator J Gary Fitzpatrick did not penalize them in ANY way or make them pay ANY of our legal costs or fees or penalties due to the wasteful delays and intentional violations of the arbitration agreement and confidentiality clause by ARAS360!
              • A disgusting demonstration of the problems of relying on a single arbitrator who made MAJOR legal and procedural errors, in an arbitration
        • The contract we signed included an appeal clause to correct any legal mistakes
          • The arbitrator made MANY legal mistakes->
          • After many many years of delays the appeals court held a hearing and focused ONLY on whether it was appealable!
            • Due to a hidden bomb ARAS360 put into the contract to thwart an appeal (ARAS360 wrote the contract) that although the entire arbitration was done under one set of rules, the appeals judge said it had to follow different set of rules because international contract??!!:
              • See the ridiculous ruling by the Appeals court saying that an Appeal NOT allowed although APPEALS ALLOWED AS STIPULATED IN THE CONTRACT FOR LEGAL ERRORS!
              • WHY wasn't a signed contract a contract?
            • Obviously that sleight of hand demonstrated ARAS360 had better lawyers than we had.
              • Gamesmanship triumphs over truth and justice!
    BRAVO BC Arbitration & Appeals court!
    You make a signed contract meaningless!
    • After years of wasted time and money it wasn't worth it to try to get
      • BC supreme court to overrule the error and skewed logic of the
        • ***see above info that the lawyer who dumped us without cause just before the first scheduled arbitration hearing to 'go on vacation', was then somehow appointed to the BC Supreme Court??
      • BC appeals court ruling to not allow any appeal of the erroneous legal work and rulings of the
      • BC arbitrator who couldn't understand and properly rule on a simple signed contract dispute written by a
      • BC company (ARAS360)! who wrote the contract and inserted bombs to blow it up
      What chance did McHenry Software, a small US software company have in BC?...NONE!
    Main point is to post up as a warning AGAINST arbitration and the BC court system.
    #BCICAC #BCArbitration #ARAS360 #PusherMitchell #BlairForrest #StevenWilson #JGaryFitszpatrick #FitzpatrickMediation