Philippe Boisvert, Author at Arbitration Matters

May 6, 2026May 6, 2026

Ontario – Aroma Round 2: no set-aside where procedural breach on non-material issue – #945

In Aroma Franchise Company, Inc. et al v. Aroma Espresso Bar Canada Inc. et al, 2026 ONSC 768, the Court dismissed a second application to set aside two arbitral awards in the “Aroma saga”, this time on various grounds pursuant to Article 34 of the Model Law (procedural breach relating to inability to present one’s case on an issue, jurisdiction, and sufficiency of reasons – the ground relating to jurisdiction was straightforward and is not addressed in this case summary). Although the Court found that the Applicants were unable to present their case on one issue (whether one individual was a proper party to the arbitration), such that Article 34(2)(ii) of the Model Law was met, it concluded that this issue was superfluous and accordingly did not exercise its discretion to set aside the award because the issue was not material.

November 28, 2025November 28, 2025

Philippe’s Reflections (2025): Québec courts find exceptions to the competence-competence principle – #927

In 2025, Québec courts have grappled with the exceptions to the competence-competence principle. It requires that any challenge to the arbitrator’s jurisdiction must be resolved first by the arbitrator. Competence-competence has long been enshrined in the Model Law and New York Convention and is codified in Québec at art. 632 C.p.c. Its exceptions have been established by case law, but the practical application of what constitutes a “superficial analysis of the evidence on the record” allowing a court to rule directly on a mixed question or law and fact rather than referring the matter to the arbitrator has resulted in different outcomes in 2025. As set out below, courts often apply the competence-competence principle, or one if its exceptions, by stating that either a superficial analysis is sufficient – or not – to resolve the matter, but without explaining their reasoning as to how this conclusion is reached.

April 7, 2025April 7, 2025

B.C. – Another Competence – Competence Analysis on a Stay Challenge – #902

In Touvongsa v. Lahouri, 2024 BCCA 405 (CanLII), the Court allowed an appeal of an order of the Supreme Court of British Columbia on the basis that the validity of the arbitration clause should be properly determined by the arbitrator by virtue of the principle of competence-competence and that none of the exceptions to this principle applied on the facts on the record. The chambers judge had found the arbitration clause unconscionable and thus inoperative. The Court made it clear that the competence-competence principle and also whether exceptions apply must be determined as a threshold question.

January 10, 2025January 10, 2025

Philippe’s 2024 Hot Topic – Québec courts rejected creative challenges to arbitral awards – #887

In 2024, parties raised various novel and creative grounds (and also some more traditional grounds) to seek annulment or resist the homologation of arbitral awards in Québec.

October 9, 2024October 11, 2024

Alberta – Arbitrator’s issuance of award without all evidence was an error of law – #867

In Giacchetta v Beck, 2024 ABKB 481 (CanLII) (“Giacchetta”), the Court held, in the context of an arbitration conducted under Alberta’s Arbitration Act, RSA 2000 c A-43 (the “Act”), that it is an error of law for an arbitrator not to consider all the evidence. Here, the arbitrator stated that he had rendered his award without considering all the evidence and said that, “there may have been an obligation on my part to have requested a copy once I realized that I did not have it…”. This resulted in a finding that the arbitrator’s reasons were insufficient, which also amounted to an error in law.

August 2, 2024July 25, 2024

Québec – Petrowest factors applied: arbitration agreement held inoperative in CCAA proceedings – #852

In Arrangement relatif à Endoceutics inc., 2024 QCCS 1482 (CanLII) (“Endoceutics”), the Court, in obiter dicta, cited the stay of proceedings criteria set out in Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41 (CanLII) (“Petrowest”) and held that it – rather than an arbitral tribunal – could rule on one party’s performance of its obligations under a contract governed by an arbitration agreement in the context of the analysis required by section 32(6) of the Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36 (the “CCAA”). Section 32 allows a debtor company to disclaim or resiliate any agreement to which the company is a party on the day on which proceedings under the CCAA commence (subject to certain conditions).

May 10, 2024May 3, 2024

Québec – Attempt to circumvent ICC Tribunal order amounts to fraud (in Canada) – #834

In Eurobank Ergasias S.A. v. Bombardier inc., 2024 SCC 11, the Court held that a call on a bank guarantee in contravention of an order of an arbitral tribunal in a pending ICC arbitration amounted to fraud under Canadian law, such that the bank that issued a related counter-guarantee was required to refuse payment.

March 1, 2024February 23, 2024

Québec – Arbitral award with declaratory relief no bar to homologation – #819

In Société des établissements de plein-air du Québec c. Station Mont-Ste-Anne inc., 2024 QCCS 2 (“SÉPAQ v. SMSA”), the Québec Superior Court granted homologation of an arbitral award and rejected its partial annulment, dismissing the argument that the award should not be homologated because it was merely declaratory. Also, the decision referred to parts of the award and arbitral record throughout its reasoning despite some concerns by one of the parties about maintaining the confidentiality of the arbitral record.

December 18, 2023December 18, 2023

Prince Edward Island – Plaintiffs’ Proposal to Arbitrate Years into Court Proceedings Factor in Excusing Delay – #799

In Elbaz v. Government of P.E.I., 2023 PESC 52 (CanLII), in the context of a motion by the defendants to dismiss an action for delay, the Court considered (among many other factors) the fact that the plaintiffs had, after their counsel had died after 15 years on the case, suggested to defendants that the case be moved to arbitration rather than remaining before the court. Considering this and other factors, the Court declined to dismiss the case for delay, finding that the delay was inordinate, but that it was not intentional or contumelious. Further, both sides were responsible for the delay. The explanations for the delays were “reasonable and cogent” or “sensible and persuasive”.

October 26, 2023October 20, 2023

Québec –Waiver of arbitration after court proceedings, despite letter proposing arbitration– #786

The Superior Court of Québec in 13647846 Canada inc. c. Phase III Wellington Griffintown inc., 2023 QCCS 3589 dismissed an application for a stay of proceedings in favor of arbitration on the grounds that: (i) it was made too late without justification, and (ii) the plaintiffs had waived their recourse to arbitration by submitting their dispute to the Superior Court first. Here, the plaintiffs brought legal proceedings with respect to a matter that was subject to an arbitration agreement. They then proposed arbitration by letter, which the defendants rejected. When the plaintiffs sought a stay of part of their own proceedings in favour of arbitration pursuant to Article 622 of the Québec Code of Civil Procedure (“CCP”), the Court found that they were out of time. The 45-day time period for the stay motion started when the court proceedings were commenced, and the stay application was not made within this period. It was irrelevant that their letter was sent within the 45-day period. The Court also found that plaintiffs had waived their right to arbitrate.