Joshua Crowe, Author at Arbitration Matters

November 5, 2025November 5, 2025

BC – BPCPA amendments prohibiting arbitration agreements in consumer contracts retrospective not retroactive – #924

In Vandenbosch v Rogers Communications Canada Inc, 2025 BCSC 1199, the Court granted both defendants’ applications to stay court proceedings in favour of arbitration. The stay against the primary defendant was granted, even though the arbitration clause was contained in a consumer contract. The Court considered recent amendments to BC’s Business Practices and Consumer Protection Act, SBC 2004, c. 2 (“BPCPA”) prohibiting arbitration clauses in consumer contracts, which came into force during a continuance of the hearing of the defendants’ stay applications. The Court found that the amendments had a retrospective effect on future disputes arising under contracts concluded prior to the amendments, but not a retroactive effect on disputes arising from facts occurring prior to the amendments. Accordingly, the BPCPA amendmentsdid not apply to the plaintiff’s action, which was based on claims that arose before the amendments were passed. Therefore, the Court granted the stay of the court proceedings. The Court also stayed claims raised against a second defendant, a non-signatory to the arbitration agreement, on the basis that these claims were based on the same factual matrix as the claims formulated against the primary defendant, which was a party to the arbitration clause.

May 9, 2025May 12, 2025

Québec – Court declines to set aside on grounds of infra petita. – #906

In EDT GCV Civil c Société de transport de Montréal, 2025 QCCS 256,the Court dismissed an application to set aside a domestic arbitral award based, among other grounds, on a refusal to exercise jurisdiction. Plaintiff, EDT GCV Civil (“EDT”), contended, among other things, that the arbitral tribunal refused to exercise jurisdiction over certain claims and that this constituted jurisdictional error based on the doctrine of infra petita described especially in international commercial arbitration. In its judgment, the Court regrettably declined to comment on whether this doctrine may apply under Québec law as a ground to set aside a domestic arbitral award.

January 2, 2025December 16, 2024

Josh’s 2024 Hot Topic – Consensual arbitration appeal mechanisms – #884

This year, in a landmark decision, McLaren Automotive Incorporated c.9727272 Canada Inc, 2024 QCCS 3457, the Québec Superior Court rendered a first-ever ruling that considered the validity of an arbitration appeal mechanism whereby the parties’ arbitration agreement allowed the appeal of an award to a different arbitrator. As reported in Arbitration Matters case note no. 864 (“Parties May Agree Upon an Arbitral Mechanism”), the Court found that such a mechanism does not offend public order principles set out in art. 622(3) of the Québec Code of Civil Procedure (“CCP”). Therefore, it found that Québec law does not prevent the parties from agreeing to an appeal mechanism in their arbitration agreement, even though it is not provided for in Québec arbitration law, which is based on the UNCITRAL Model Law.

October 25, 2024October 18, 2024

Québec – Award that violates municipal by-law does not offend public policy – #871

In Bélanger c Beauchamp, 2024 QCCS 3118, the Court homologated several awards rendered in the context of a dispute between two co-owners of an undivided property concerning the location and size of their parking spaces. The Defendant contested the homologation of one of the awards based on public policy grounds, alleging that the award violated a municipal by-law. The Court ruled that any violation of the municipal by-law that would result from the award did not amount to a public policy violation that justified refusing homologation, because it would not be a violation that offends the fundamental values underlying Québec public policy. The Court also decided that an award rejecting one of the parties’ applications for recusal of the arbitrator did not constitute an award within the meaning of the Québec Code of Civil Procedure (“CCP”), and so could not be homologated. This latter issue is not addressed in this case note.

July 31, 2024July 25, 2024

Ontario – Court won’t intervene in arbitration to order disclosure against a party – #851

In Medjuck v Medjuck, 2024 ONSC 2980,the Court dismissed an application for a de novo hearing to decide the matter of disclosure requests that were denied in part by the Arbitrator on several grounds, including that he did not have jurisdiction to grant some of the requests. The Court held that it did not have authority to intervene in the arbitration so as to hear and rule on the disclosure request de novo. It found that the request did not fall under any of grounds listed at section 6 (court intervention limited) of the Ontario Arbitration Act, 1991, SO 1991, c 17.

May 24, 2024May 24, 2024

Ontario – Court can hear set aside despite NY forum selection clause – #837

In Tehama Group Inc v Pythian Services Inc, 2024 ONSC 1819, the Court declined to stay an application to set aside an arbitration award. The stay application was based on a forum selection clause in favour of the courts of New York. In denying the stay, the Ontario court applied an exception in that forum selection clause regarding certain types of disputes under the parties’ agreement that were to be referred to arbitration. The key issue in the case concerned establishing the “place” of the arbitration, which had not been expressly set out by the parties or determined by the arbitrator. Applying the International Commercial Arbitration Act, RSO 1990, c I.9 (“ICAA”) and UNCITRAL Model Law on International Commercial Arbitration (“Model Law“) the Court determined that Toronto, Ontario, was the place of arbitration and that the Ontario Superior Court of Justice was therefore the only competent forum to decide the set-aside application.

March 11, 2024March 8, 2024

Ontario – Arbitrator’s stand-alone jurisdiction decision a preliminary “ruling” open to de novo review – #820

In Clost v Rennie, 2023 ONSC 6998, the Court ruled that an arbitration agreement was invalid after a de novo hearing to “decide the matter” of the arbitrator’s jurisdiction under section 17(8) of the Ontario Arbitration Act, 1991, SO 1991, c. 17 (the “Act”). The Applicant (also referred to in the decision and herein as “Norm”) contended that the arbitration agreement was invalid because it was contained in a lease agreement which he alleged was fraudulent because his signature was forged. The parties first submitted the jurisdictional issue to a sole arbitrator, who found the arbitration agreement to be valid. The Court accepted that a de novo hearing under s. 17(8) of the Act was required, finding that the Arbitrator had rendered a “ruling” on a preliminary question of jurisdiction rather than an “award”, even though the sole question he was asked to determine was jurisdiction. There was an extensive evidentiary record before the arbitrator relative to the jurisdictional issue. This raised for debate the difference between an “award” and a “ruling” on a preliminary question which can be decided by the Court on a hearing de novo. The Court completed its own review of the extensive evidentiary record and ultimately concluded that the lease (and therefore the arbitration agreement) was fraudulent and invalid and the arbitrator had no jurisdiction

January 4, 2024April 30, 2024

Josh Reflects (2023): Multi-tier dispute resolution clauses: jurisdiction and limitations issues – #805

Canadian appellate courts have seldom made significant rulings on multi-tier dispute (sometimes called “step” or “cascading”) resolution clauses, so it is difficult to discern clear trends. A recent decision of the Hong Kong Final Court of Appeal (“HKFCA”) is of interest. It considered what forum has jurisdiction to determine whether prior steps in a multi-tier dispute resolution clause have been satisfied.

November 9, 2023November 3, 2023

Ontario – Arbitrator to rule on own jurisdiction and addition of party – #791

In Toronto Standard v Distillery SE, 2023 ONSC 5340, the Court upheld the parties’ agreement to appoint a specific arbitrator, and also determined that issues relating to the arbitrator’s jurisdiction and mandate, and the addition of a party, should be decided by the arbitrator and not the Court.

July 19, 2023July 17, 2023

Québec – Arbitrator’s past professional relationship not a cause of partiality – #756

In Tourigny v Chabot, 2023 QCCS 1976 (“Tourigny”), the Court homologated an arbitral award for costs, thereby dismissing the Defendants’ challenge based on an application to recuse the arbitrator on grounds of partiality.