Arbitration Matters

October 20, 2026October 20, 2026

Alberta – Can an Alberta judge order a substitute arbitrator on remittal? – #963

In Frederico v Cabral, 2026 ABCA 251 (CanLII) a single judge of the Court of Appeal granted Federico’s application for permission to appeal a King’s Bench decision (the “Decision”) that set aside a spousal support Arbitration Award (the “Award”) and ordered a new hearing before a substitute arbitrator. The judge found that Federico had raised a reasonably arguable position: that the appointment of a substitute arbitrator exceeded the authority of the King’s Bench judge who heard the original appeal from the Award. Section 16(1) of Alberta’s Arbitration Act(the “Act”) provides that a substitute arbitrator shall only be appointed when an arbitrator’s mandate is terminated. Pursuant to section 14, an arbitrator’s mandate ends only under specific enumerated circumstances. None of them applied here. Despite this, the appeal judge appointed a substitute arbitrator on remittal. The case raises an important question: does an arbitrator’s mandate automatically end at delivery of a final award in Alberta? It also highlights whether a court can interfere with parties’ intention to have their dispute determined by a specific arbitrator by ordering a substitute arbitrator.

October 20, 2026October 20, 2026

Manitoba – Inconsistent, contradictory, and flawed arbitration agreements cannot be performed – #962

In Bains v Loader, 2026 MBCA 66, the Court found no palpable and overriding error in the lower court’s judgment that ICC arbitration agreements in two international commercial contracts were incapable of being performed because of poor drafting. However, the Court reversed the findings that two technical prerequisites of the Peace River Hydro v Petrowest Corp. stay test were not satisfied, and declined to endorse the findings that the agreements were null and void or inoperative, “or any suggestion … that exceptions, other than those set out in the ICAA, are relevant to the exception analysis in this case.”

October 19, 2026October 15, 2026

Alberta – Competence-competence and efficiency considered in declaration of invalidity of arbitration application – #961

In Fraser N Peterson Professional Corporation v Mark WM Leishman Professional Corporation, 2026 ABKB 568, the Court dismissed an application under section 47 of the Alberta Arbitration Act, RSA 2000, c A-43 (the “Act”) for a declaration that an arbitration agreement was invalid, and that the arbitrator lacked jurisdiction. Although the competence-competence principle would ordinarily require the arbitrator to decide the jurisdiction question first, the Court held that it could hear the jurisdictional challenge under section 47 of the Act. The Court relied on foundational efficiency principles, noting that the parties had advanced comprehensive submissions on an uncontested factual record, the dispute turned primarily on the interpretation of written agreements, and the statutory framework prevented the applicant from making the same challenge before the arbitrator. The Court concluded that the arbitration agreement was valid and survived the termination of the parties’ underlying contract.

September 21, 2026September 17, 2026

Ontario – Shareholder of corporate signatory is party to partnership arbitration clause – #960

In 1171757 Ontario Limited et al. v 1171758 Ontario Limited et al., 2026 ONSC 4414, the court held that the shareholder of a corporate partner qualified as a “party” to the partnership agreement and therefore was entitled to bring claims pursuant to its arbitration clause. Applying principles of contractual interpretation, the court found that the plain wording of the partnership agreement contemplated that the term “parties”, which appeared in the agreement’s arbitration clause but was not a defined term in the agreement, included shareholders of the partners. Further, the court determined that claims brought by “parties” respecting contracts made with the corporation which legally owned the partnership’s property assets were arbitrable under the partnership agreement, despite that the corporation itself seemingly was not a party to the agreement.

September 21, 2026September 17, 2026

Ontario – Non-signatory “arguably” bound by arbitration clause signed by affiliate – #959

In Bombardier Inc. v. Alstom Rail Sweden AB, 2026 ONCA 528, the Court of Appeal for Ontario dismissed an appeal from an order staying an Ontario action in favour of ICC arbitration. The Court held that the motion judge did not err in finding it arguable that a non-signatory affiliate could avail itself of an arbitration clause in an agreement it did not sign. Since Canadian case law on non-signatory issues is thinner than elsewhere, this case is an important one to consider.

September 21, 2026September 17, 2026

Alberta – Court application aimed at arbitrator to stay arbitration pending appeal denied – #958

In Carrigan v Withers, 2026 ABCA 58, the Court denied an application for a stay of arbitration and enforcement proceedings pending an appeal on the ground that it did not have the legislative authority to do so. The application raised issues of irregularities in the formation of the arbitration agreement. Of significance to this case summary, the applicant named the arbitrator as well as the opposite party in the arbitration as respondents.

August 24, 2026

Alberta – Court Dismisses Application to Decide Scope of Unwritten Arbitration Agreement – #957

In 1775773 Alberta Ltd. v Hill, 2026 ABKB 511, the Application Judge considered the limits of the Court’s jurisdiction to determine the scope of an arbitration. The case arose in circumstances where the parties had agreed that all but one of the issues between them would be arbitrated but had not entered into a written arbitration submission agreement or otherwise consented to the Court determining whether the remaining issue should be referred to arbitration. The Application Judge refused to refer any of the issues to arbitration, finding that there was no “meeting of the minds” on the submission agreement and that an arbitration agreement could not be implied from the parties’ Unanimous Shareholders Agreement (the “USA”). He also found that he lacked authority to refer the disputed issue to arbitration because the parties had not consented to the Court determining whether it should be arbitrated.

August 24, 2026

Québec – “May” means “must” in arbitration agreement – #956

In Avalin Group FZE c. Lauzon – Planchers de bois exclusifs inc., 2026 QCCA 651, the Québec Court of Appeal overturned a judgment of the Québec Superior Court, which refused to refer the matter to arbitration because the arbitration agreement stipulated that the parties “may” initiate an arbitration if mandatory mediation is unsuccessful. The Superior Court had ruled that the word “may” meant that the arbitration agreement did not exclude the jurisdiction of domestic courts. The Court of Appeal overturned that decision. It applied the rules of interpretation of contracts and concluded that the parties intended to enter into a binding and exclusive arbitration agreement (clause compromissoire parfaite), despite the ambiguity created by the word “may”. It therefore granted the application for declinatory exception and referred the matter to arbitration. The Court of Appeal’s decision aligns with more recent jurisprudence as well as commentary regarding arbitration agreements from both Québec and international sources.

August 24, 2026

Saskatchewan – Arbitral institution default award enforceable – #955

In Welter v. Parrish & Heimbecker Ltd., 2026 SKCA 62, the Court dismissed an appeal from a decision recognizing and enforcing a default arbitration award under The Enforcement of Foreign Arbitral Awards Act SS 1996, c E-9. 12 (the “EFAA”). The appellant failed to participate in the arbitration despite notice and did not pay arbitration institution fees as required. The arbitration rules agreed to by the parties permitted the arbitral institution to issue a default judgment in such circumstances, even when a tribunal had not been constituted. The arbitration institution issued a default judgment. The appellant raised several arguments that the award failed to satisfy the statutory prerequisites for enforcement and had been issued through a procedurally unfair process. The Court concluded that the appellant had not demonstrated any reviewable error in the enforcement decision.

July 27, 2026July 27, 2026

Ontario – JAMS arbitration clause survives bias and unconscionability challenges – #954

Abouzeid v. eXp Realty of Canada Inc et al., 2026 ONSC 3329 confirms that speculative concerns regarding institutional bias in the administration of an arbitration, absent evidence of actual unfairness or an inability to appoint an independent and unbiased arbitrator, will not render an arbitration agreement invalid, unconscionable, or incapable of performance, and will not prevent a mandatory stay under s. 7(1) of Ontario’s Arbitration Act, 1991, S.O. 1991, c. 17 (the “Arbitration Act”). The Court rejected the plaintiff’s two principal arguments: first, that the administering authority under the relevant arbitration agreement (JAMS) would be unable to administer an unbiased arbitration because the respondent frequently selected JAMS as an administering institution; and second, that the limited size of the Canadian JAMS arbitrator roster rendered the arbitration agreement incapable of performance (an issue for Canadian administering institutions to consider). These arguments failed because the parties were free to select any arbitrator – they were not restricted to the JAMS roster – and because repeat use of an administering authority does not give rise to bias.