From January to December 2021, Arbitration Matters posted regular Case Notes on this website, providing summaries and commentary on cases concerning commercial arbitration issues, as they were released by courts across Canada. These Case Notes were also sent to subscribers on a bi-weekly basis.
Overall, the 2021 jurisprudence demonstrates the continued ingenuity and appetite of disappointed parties and their counsel to find ways to challenge arbitral awards in the courts by, for example, challenging the sufficiency of the arbitrator’s reasons or the arbitrator’s conduct, raising issues concerning the merits of the award to oppose an application to enforce it, and proffering multiple extricable errors of law in support of an appeal. However, the 2021 jurisprudence also shows consistently that courts are willing to defer to the parties’ intentions, as expressed in their arbitration agreement, to refer their disputes to arbitration. Even where the parties have not provided for arbitration, courts are increasingly recommending arbitration as a way to obtain the benefit of confidentiality, to avoid a multiplicity of court proceedings in different jurisdictions, or to achieve speed and efficiency.
There were a few issues that, in my view, are of particular interest to commercial arbitration practitioners, which I have outlined in the Canadian Journal of Commercial Arbitration (PDF link). This paper focuses on (1) the appropriate standard of review of an arbitral award on an appeal, set aside application, or other court review, which remains an uncertain area of the law [Canada (Minister of Citizenship and Immigration) v Vavilov, Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, lululemon athletica canada inc v Industrial Colour Productions Inc., Russian Federation v Luxtona Ltd., and United Mexican States v Burr]; and (2) the application of the foundational principle of “separability” in the bankruptcy context in Petrowest Corporation v Peace River Hydro Partners.
You can find a detailed analysis of many of these cases in our 2021 Top Pick Case Notes.