Lisa C. Munro

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, 2026February 4, 2026

Alberta – Tribunal not functus officio when issuing award after final award – #932

In Lawrence v. Wood, 2025 ABKB 594, the Court dismissed an application for leave to appeal an award of an arbitral tribunal, or alternatively, to set it aside. The Applicants argued that that the tribunal was functus officio and lacked jurisdiction when it issued an award stating that a prior award was to be paid jointly and severally. The Court disagreed and held that the tribunal still had jurisdiction to make this clarification because this issue was dealt with “implicitly” in the first award, or alternatively, it was a new issue that was not before it when the first award was issued.

October 3, 2025December 4, 2025

Manitoba – First CA finding reasonableness standard applies to commercial award appeals – #921

Buffalo Point First Nation v Buffalo Point Cottage Owners Association Inc, 2025 MBCA 72 was the first appellate court to decide that the standard of review set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 for reviews of decisions of administrative tribunals does not apply to appeals of commercial arbitration awards. (As explained below in my commentary, this italicized language is critical to the analysis of this case.) Instead, the “reasonableness” standard of review, which was established in Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53 and affirmed in Teal Cedar Products Ltd v British Columbia, 2017 SCC 32, applies. In other words, Vavilov did not overturn Sattva. The fact that domestic arbitration legislation provides an appeal right does not mean that the same “appellate standards” apply in this context. The Court applied the reasonableness review analysis set out in Vavilov, except it found that a greater level of deference might be owed to an arbitrator’s expertise given the purpose of commercial arbitration; namely, giving effect to the parties’ desire for that method of dispute resolution. In other words, this standard of review reflects the reasonable expectations of the parties.

July 31, 2025July 31, 2025

Alberta – No costs to arbitrator sued for alleged bias – #913

Uhuegbulem v Balbi 2025 ABKB 318 is a factually complex dispute in which the plaintiff brought multiple proceedings before the court, and also before the arbitrator, to have the arbitrator removed for reasonable apprehension of bias based upon serious allegations of misconduct. When both those proceedings were not successful, plaintiff brought a separate action against the arbitrator. The defendant arbitrator brought an application in that action in which he argued that the action should be dismissed because (among other things): (1) the arbitrator was protected by arbitral immunity; and (2) the multiplicity of proceedings brought by the plaintiff was an abuse of process. The court could find no precedent for a separate proceeding brought against an arbitrator to have them removed for alleged reasonable apprehension of bias. Ultimately, the arbitrator resigned and the action and application became moot. The parties did not agree on costs and this decision reviews the relevant principles applied by the court to determine costs in this novel proceeding where the arbitrator actively responded to a bias application against him.

March 7, 2025March 7, 2025

Ontario – Award set aside where one of three arbitrators biased – #898

Vento Motorcycles, Inc. v The United Mexican States, 2025 ONCA 82 is the second recent Ontario decision (after Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc., 2024 ONCA 839 on the issue of reasonable apprehension of bias of an arbitrator, which arbitration practitioners have been awaiting. In this decision, there was no challenge to the finding in the Court below that the conduct of one of the arbitrators on a panel of three met the test for reasonable apprehension of bias. The appellant argued that the judge below was wrong to exercise her discretion to not set aside the award. This Court allowed the appeal and set aside the award. It found that it was impossible to determine whether one arbitrator’s bias affected the outcome. Reasonable apprehension of bias on the part of the arbitrator is such a serious breach of procedural fairness that the award must be set aside, even if it requires a re-hearing of the arbitration.

November 18, 2024November 22, 2024

Ontario – Application to enforce award against non-party to arbitration stayed – #875

In Sociedad Concesionaria Metropolitana De Salud S.A. v Webuild S.P.A, 2024 ONSC 4491 the Court considered whether to grant an application to enforce an arbitral award against a non-party to the arbitration. The non-party had purchased assets of the unsuccessful party to the arbitration as part of a restructuring proceeding in Italy. The successful party to the arbitration and the non-party disagreed on whether the asset purchase included the transfer of the unsuccessful party’s obligations under the award to the non-party. The Court stayed the enforcement application pending a determination of that threshold issue by the Italian courts.

September 23, 2024September 20, 2024

Ontario – Arbitrator jurisdiction – dispute arose from Consent Order after earlier arbitration – #863

In The Joseph Lebovic Charitable Foundation, The Dr. Wolf Lebovic Charitable Foundation, the Estate of Joseph Lebovic and Wolf Lebovic v Jewish Foundation of Greater Toronto and Joseph and Wolf Lebovic Jewish Community Campus, 2024 ONSC 4400, the Court upheld the arbitrator’s order that he had jurisdiction over the parties’ dispute that arose after a Consent Order made in an earlier arbitration. The parties’ first dispute fell within the scope of the arbitration clause in their agreement. They settled that dispute and the arbitrator issued a Consent Order that contained a term that referred, “any disputes regarding the matters referred to in this Order” back to him for resolution. A second arbitration did not proceed. The same arbitrator was appointed to decide the issues in dispute in a third arbitration. The respondents in the arbitration (“Lebovic”) argued that the arbitrator did not have jurisdiction because the issues raised were grounded in the Consent Order and not in the agreement that contained the arbitration clause. The arbitrator decided that he had jurisdiction, in part, because: (1) resolving this third dispute would necessarily involve factual consideration of the contract terms, and obligations and conduct of the parties under both the parties’ agreement and the Consent Order; and (2) the issues raised by Lebovic were all grounded in rights and obligations which were initiated by the terms of their agreement. Lebovic maintained their objection and applied to the Court under section 17(8) of the Ontario Arbitration Act, 1991, SO 1991, c. 17, “to decide the matter”. The focus of this case note is the arbitrator’s decision, because the application was decided on the basis of waiver.

July 2, 2024July 2, 2024

Alberta – Arbitrator not functus for issuing consent award after party denied settlement – #844

In Caroll v Caroll, 2024 ABKB 227, the Court found that the Arbitrator was not functus officio for issuing a Consent Award after a settlement was reached in a med-arb process. One party denied the settlement but argued that, in any event, the Arbitrator’s jurisdiction was over after the settlement agreement and it was improper to “crystallize” the agreement into the Award. The Court dismissed this argument and found that there was a settlement. And the process was not unfair. The Arbitrator did not “conflate” the mediation and arbitration phases of the proceeding by terminating the proceeding after the settlement agreement rather than proceeding to arbitration once one party denied the settlement.

April 22, 2024April 19, 2024

Ontario –“Fraud” does not include “constructive fraud” for set-aside application deadline – #829

Campbell v Toronto Standard Condominium Corporation No. 2600, 2024 ONCA 218, considered the meaning of “fraud” under section 46(1)9 of the Ontario Arbitration Act, 1991, SO 1991, c, 17. It provides that a court may set aside an award on the ground that, “the award was obtained by fraud.” The first issue before the Court was whether “fraud” includes “constructive fraud.” The main issue, however, was the interpretation to be given to sections 47(1) and (2), which provide that an application to set aside an award shall be commenced within 30 days after the applicant has received the award – except if the applicant alleges corruption or “fraud”. The Court found that “fraud” does not include “constructive fraud, which means that the Respondents were out of time to bring their set-aside application. It found that a broadening of the definition of fraud is not consistent with the statutory objectives to narrow the grounds for court interference in arbitrations. The Court expressed the view that the allegation of constructive fraud was made for the purpose of circumventing the statutory time limit for bringing a set-aside application. (This case is also useful for its summary of basic arbitration law principles. If you need a quick update or refresher of these, see my Editor’s Notes below for a “cheat sheet”.)

January 3, 2024April 30, 2024

Lisa Reflects (2023): Aroma – the blockbuster case of 2023? – #804

Aroma Franchise Company Inc. et al. v Aroma Espresso Bar Canada Inc., 2023 ONSC 1827 was the case I think created the biggest “buzz” in 2023, likely because it was the only Canadian case (of which I am aware) that has addressed the gnarly issue of arbitrator disclosure obligations in circumstances in which the arbitrator has taken on multiple appointments at the same time, a situation in which the IBA Guidelines on Conflict of Interest in International Arbitration provides little, well, guidance. I reported on this decision in an earlier case note: Ontario – Multiple arbitral appointments give rise to reasonable apprehension of bias – #734 – Arbitration Matters. Since then, the case has continued to generate interest and commentary, which has kept me thinking about it. The Ontario Court of Appeal heard the appeal on December 6, 2023.