Arbitration Case Notes Archives - Arbitration Matters

October 3, 2025October 22, 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.

October 3, 2025October 3, 2025

Ontario – Party bound by rule change despite not agreeing to it – #920

In InFrontier AF LP v. Rahmani, 2025 ONSC 3968 (CanLII) (“InFrontier”), the Court heard an application to recognize and enforce an award and considered the effect of amendments to the arbitral rules chosen by the parties in their arbitration agreement. The parties had agreed to settle disputes by arbitration seated in Dubai using a specific set of arbitration rules (the “OldRules”) administered by a specific arbitral institution. Before the arbitration commenced, a change in Dubai law led to those rules being replaced by a new set of rules (the “New Rules”) to be administered by a different institution. As described below, there was a degree of connection between the Old Rules and the New Rules and between the two institutions. The arbitration proceeded under the New Rules. Mr. Rahmani, the Respondent in the arbitration, unsuccessfully challenged the arbitrator’s jurisdiction to proceed under the New Rules. He was also unsuccessful in the arbitration. InFrontier applied for recognition and enforcement of the award in Ontario. Mr. Rahmani opposed the application, arguing: (1) the composition of the tribunal and the arbitration procedure were not in accordance with the arbitration agreement because the arbitration proceeded, without his agreement, under the New Rules, (2) recognizing and enforcing the award would be contrary to public policy in Ontario because it was obtained as a result of a retroactive amendment to the arbitration agreement without the parties’ consent, and (3) he was unable to present his case during the arbitration. The Court rejected all his arguments.

This case summary deals only with Issue 1.

October 3, 2025October 7, 2025

Federal – No Stay Where Case a Proper One for Summary Judgment – #919

In QSL Canada Inc. v. Canpotex Terminals Limited, 2025 FC 1012, the Court dismissed the Defendant’s motion to stay the action in favour of arbitration and granted the Plaintiff’s motion for summary judgment. In so doing, the motion judge analyzed contractual and legal issues that were plainly subject to the parties’ arbitration agreement. This is permitted by the statutory exceptions to stay motions found in the arbitration legislation across the country demonstrating that the policy behind courts respecting parties’ agreement to arbitrate is not absolute. One of the limited exceptions applies to cases where it is found that summary judgment is appropriate. Interestingly, the Defendant also brought the stay motion under the Federal Court general stay provision.

September 16, 2025September 23, 2025

Alberta – Exercise of Share Purchase Option Precludes Arbitration of Oppression Claims – #918

In ONE Properties Holdings Corp v Turtle Bay Investments Ltd, 2025 ABKB 313, the Court held that the exercise of a contractual option to buy out a minority shareholder and the accompanying independent share valuation mechanism extinguished parallel oppression claims brought by the minority shareholder pursuant to the arbitration agreements in unanimous shareholder agreements (“USAs”). At the time, the separate option agreement had already been exercised and the minority shareholders’ shares, in respect to which the oppression was being invoked, were already subject to the independent valuation mechanism. The Court declared that, under s. 47(2) of the Alberta Arbitration Act, the arbitration provisions in the two USAs were either invalid or ceased to exist.

September 16, 2025September 23, 2025

Ontario – A first: arbitration an appropriate alternative to judicial review – #917

BizTech v Accreditation Canada, 2025 ONSC 2689 appears to be the first application of section 7(1) of the Arbitration Act, 1991, S.O. 1991, c. 17(the “Arbitration Act”) , or any comparable provisions in other Canadian arbitration legislation, to stay a judicial review proceeding (para. 151). The decision establishes that staying a judicial review proceeding under section 7(1) of the Arbitration Act, in order to allow an arbitration to proceed, is not at odds with an individual’s right to apply for judicial review, depending on the facts of the case.,

September 16, 2025September 23, 2025

Québec – Arbitration clause in contract of adhesion abusive and null – #916

In Hydro-Québec v. Terrassement St-Louis inc., 2025 QCCA 900, the Court dismissed the demand of Appellant Hydro-Québec’s (“Hydro-Québec”) to refer the file to arbitration. Although the parties were bound by a valid arbitration agreement, the Court confirmed the first instance judge’s conclusion that the arbitration agreement was included in a contract of adhesion and that the arbitration agreement itself was abusive; because of the small amount in dispute, the three-arbitrator panel prescribed by the arbitration agreement resulted in a denial of justice for the Respondent. Therefore, the arbitration agreement was declared null under section 1437 C.C.Q. According to the Court’s reasoning, the arbitration agreement should have been flexible to take into consideration smaller amount disputes by having the option of a sole arbitrator and/or expedited arbitration rules.

July 31, 2025September 16, 2025

Ontario – Mid-arbitration switch to written hearing/refusing to consider submissions procedurally unfair – #915

In Spinney v. Fowlie, 2025 ONSC 2632, the Court set aside an award for want of procedural fairness. The Court found the applicants were denied fair and equal treatment when the Arbitrator decided, partway through a hearing, to switch from an oral to written hearing format and refused to consider the applicants’ written closing submissions. This case should serve as a reminder that even difficult parties are entitled to procedural fairness.

July 31, 2025August 1, 2025

Ontario – Interpretation of Standard Form Multi-Tier Dispute Resolution Clauses Still Vexing – #914

In J.P. Thomson Architects Ltd. v. Greater Essex County District School Board, 2025 ONCA 378 (the “Decision”), the Court provides important guidance on the interpretation of multi-tier dispute resolution clauses.

History of the Dispute – J.P. Thomson Architects Ltd. (“Thomson”) is an architecture firm which provided services to the Greater Essex County District School Board (the “Board”) for nearly 50 years. The contracts in question contained a standard form Ontario Association of Architects multi-tier dispute resolution clause (as it existed at the time of contract).

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.

July 3, 2025July 4, 2025

Québec – Court annuls award for failure to respect appointment procedure in arbitration clause. – #912

In Medicell Pharmaceutical (S) Pte Ltd v. Pharmascience Inc. 2025 QCCS 1325, the Court annulled an interim arbitral award issued ex parte, holding that the arbitrator had not been validly appointed under the parties’ agreement, which provided that the arbitration was to be administered by and conducted by one arbitrator in accordance with the rules of the Québec Code of Civil Procedure (“CCP”). In setting aside the award, the Court emphasized that arbitration is consent-based and that a party cannot unilaterally appoint an arbitrator, even in urgent circumstances and even when the parties’ arbitration agreement allows for provisional measures. Crucially, the Court held that Applicant, which sought the annulment of the interim award, had not waived compliance with the agreed appointment procedure – its silence and engagement, albeit limited, did not amount to tacit acceptance of the arbitrator’s appointment.