Arbitration Matters

April 6, 2026April 10, 2026

B.C. – Narrow basis for refusing to stay an action reiterated – #942

In Aspen Technology, Inc. v. Wiederhold, 2025 BCCA 261 (“Aspen“) the Court reversed a lower court’s finding that an arbitration clause was void and inoperative. In concluding the motions judge erred, the Court confirmed the very limited grounds upon which a court can refuse to stay an action in favour of arbitration. It closes a door the lower court in Aspen had opened and corrects the lower court’s application of the Dell Computer and Uber frameworks.

April 6, 2026April 6, 2026

Ontario – Procedurally unfair to rule based on a claim that appeared foreclosed – #941

In Foodies Curry & Shawarma Inc v Royal Paan Leasing Ltd, 2026 ONCA 26, the Court set aside a judgment of the Superior Court of Justice on grounds of procedural fairness. The judgment dismissed an application for specific performance of an asset purchase agreement but granted restitution on grounds of unjust enrichment. However, the restitution claim was not expressly requested in the Notice of Application and was raised for the first time at the oral haring. Based on the application judge’s interventions at the hearing, the defendant believed the restitution claim to have been foreclosed and made no submissions on the matter. In the circumstances, the Court held that the defendant was deprived of its right to know the case it had to meet and to meet that case.

April 6, 2026April 6, 2026

Ontario – Application to set aside award in baseball arbitration denied – #940

In Stronach v. Stronach, 2025 ONSC 7158, the Parties, who had been embroiled in years of acrimonious litigation related to their family enterprise, agreed to a settlement that included a final-offer (or “baseball”) arbitration to determine the value of the Respondents’ agreed share of the businesses. The Applicants later challenged the arbitral award, which had been rendered by a prominent business valuator. They argued, among other things, that it should be set aside because the Arbitrator relied on an expert report, which was outside his jurisdiction because it did not comply with the valuation standards agreed to by the Parties. The Application Judge dismissed the application, describing it as “very weak” on the purported jurisdictional issue. In substance, he viewed it as a challenge to the merits of the award where there was no appeal. In any event, the Application Judge held that the Applicants had “agreed” to admit the impugned expert report into evidence to challenge its weight. By not objecting to the report’s admissibility at the hearing or to the Arbitrator’s authority to receive it, the Applicants waived their ability to later raise the jurisdictional argument on a setting aside application.

The case raises a number of procedural fairness issues, but this summary will focus on jurisdiction and waiver issues.

March 11, 2026March 11, 2026

B.C. – Mistake in weighing evidence not error of law – #939

In CIMIC Morningstar Investments Ltd. v. Chandos Construction Ltd., 2026 BCCA 2, the Court denied leave to appeal pursuant to s. 59 of the Arbitration Act, S.B.C. 2020, c. 2 (the“Act”) with respect to alleged errors of law in an arbitral award concerning liability and damages for construction delays. The arbitrator found that the applicant/owner, CIMIC Morningstar Investments Ltd. (“CIMIC”), had materially contributed to delay through design changes and late approvals and awarded the general contractor $6.5 million in damages, interest, and costs. The Court ruled that none of the four grounds alleged by CIMIC raised questions of law. What CIMC argued were the arbitrator’s misapprehensions of the evidence going to the outcome (which this Court has found constitutes an error of law, most memorably in Escape 101 Ventures Inc. v. March of Dimes Canada, 2021 BCCA 313) was actually a challenge to the arbitrator’s weighing of the evidence.

March 11, 2026March 11, 2026

Northwest Territories – Peace River Analogized in Oppression-Driven Disclaimer of Arbitration – #938

In TSA CORPORATION et al v KPMG LLP, 2026 NWTSC 2, the Court approved a Receiver’s request to disclaim arbitration agreements between companies in receivership (the “LKDFN Companies”) and KPMG, which the LKDFN Companies’ former CEO had engaged to provide accounting services and tax advice. The Receiver had been appointed to facilitate the LKDFN Companies’ recovery from oppression at the hands of their former CEO. Relevant statutes, and the Receiver’s appointment order, authorized a broad range of potential remedies, expressly including the power to disclaim contracts with third parties. Reasoning by analogy to Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41, the Court approved the Receiver’s request because “not doing so would compromise the fair and orderly correction” of “a scenario of exploitation, unfairness, and the obliteration of autonomy.” The Receiver’s disclaimer rendered arbitration agreements between the LKDFN Companies and KPMG unenforceable under the Arbitration Act, SNWT 2022, c 14. As a result, the Court denied KPMG’s application to stay derivative actions brought against it.

The social context of this case was key. The LKDFN Companies’ former CEO had “knowingly breached his fiduciary duties to the LKDFN Companies, including failing to disclose his own interests, which were significant, and he caused them to enter into agreements, transactions, and governance structures which were unfair and prejudicial.” The LKDFN Companies had been organized to serve economic and other needs of the First Nation, infusing this case with the “special social context attendant to the exploitation of a vulnerable indigenous group.” This context situated the case in the process of truth and reconciliation with Canada’s First Nations, including the interpretive lens of federal and territorial legislation implementing the United Nations Declaration on the Rights of Indigenous Peoples.

March 11, 2026March 11, 2026

Ontario – Parties must pay arbitrator as part of good faith contractual performance – #937

In Ongko (Boswell) v. Ongko, 2025 ONSC 7235, the applicant was precluded from bringing her set-aside application. She was not only time-barred from doing so because she commenced the application after the statutory 30-day period, but the Court also held that it lacked jurisdiction to set aside an award and to remove an arbitrator for bias where a party fails to comply with the arbitrator challenge requirements of the Arbitration Act, 1991, SO 1991, c 17 and the terms of their arbitration agreement, which provided for a mandatory challenge process if either party had concerns about the arbitrator’s neutrality. The applicant elected not to proceed with the challenge before the arbitrator after she refused to pay the arbitrator’s fees. She then chose not to participate in the arbitration. The Court made clear that parties must continue to pay the arbitrator’s fees to complete the contractually agreed dispute resolution process. It also found that there was also no procedural unfairness stemming from her own choices.

February 12, 2026February 12, 2026

Ontario – Court dismisses review of leave decision finding no extricable error of law – #936

In Hilmer Motorsport GmbH v. Mason, 2025 ONCA 875, the Court dismissed an appeal from a summary judgment enforcing a German default judgment in which the appellants were found to have breached an agreement between the parties. The decision addresses the intersection between foreign judgment enforcement and arbitration agreements. The agreement provided that any dispute between the parties was to be resolved by arbitration and the appellants contended that it would therefore be against public policy to recognize and enforce the judgment of the German court. In its ruling, the Court held that the mere existence of an arbitration clause does not, without more, deprive a foreign court of jurisdiction or render its judgment unenforceable in Ontario. The appellants had failed to defend the German action and could not resist judgment on the basis of the arbitration agreement at the enforcement stage.

February 12, 2026March 11, 2026

Ontario – Anti-suit injunction granted restraining foreign arbitration by affiliate – #935

In Lochan v Binance Holdings Limited, 2025 ONSC 6493, the Court granted an anti-suit injunction that prevents Binance Holdings Limited (“Binance”) and affiliates from pursuing arbitration in Hong Kong against the representative plaintiffs in a certified class action in Ontario. The Court determined that Binance was using an affiliated entity, Nest Services Limited (“Nest”), as an alter ego to bypass previous Ontario rulings that found the arbitration clause in its contract with members of the class to be unconscionable and void.

February 12, 2026March 4, 2026

British Columbia – On appeal, question of procedural fairness is question of law – #934

In Green Light Solutions Corp. v Kern BSG Management Ltd., 2025 BCCA 408, the applicant sought leave, pursuant to s. 29 of the Court of Appeal Act, S.B.C. 2021, c.6, to vary the order of a chambers judge, who had denied it leave to appeal the costs portion of a final award. Applying s. 59(2) of the British Columbia Arbitration Act, SBC 2020 c. 2, the chambers judge found that the applicant had failed to identify a question of law. The applicant’s complaint was that there was a breach of the parties’ right to make submissions on costs before the award was made. The Court of Appeal overturned that decision on the basis that the proposed appeal raised a question of procedural fairness, which is a question of law. Moreover, the legislation permits questions of law based on an allegation that a party was not given the opportunity to present its case to be raised in both an appeal and a set-aside application.

January 30, 2026January 30, 2026

British Columbia – Court dismisses review of leave decision finding no extricable error of law – #933

In Bear Mountain Resort & Spa Ltd. v. Ecoasis Resort and Golf LLP, 2025 BCCA 368, the B.C. Court of Appeal dismissed a review application from a Chambers Judge’s decision refusing leave to appeal an arbitral award under subsection 59(4) of B.C.’s Arbitration Act, SBC 2020, c 2 [Act]. The Court found no error in the Chambers Judge’s conclusion that the eight grounds the applicant raised concerned questions of mixed fact and law, which cannot be appealed under the Act.