Arbitration Case Notes Archives - Page 4 of 95

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.

July 3, 2025July 4, 2025

B.C. – Website Terms Contained Enforceable and Not “Inoperative” Arbitration Clause – #911

In Fisher v Airfoam Industries Ltd. (Quad-Lock Building System), 2025 BCSC 758 (“Fisher”), the court considered an application to stay court proceedings in favour of arbitration pursuant to section 8 of the British Columbia International Commercial Arbitration Act, RSBC 1996, c 233 (“ICAA”). The court proceedings related to a dispute between a buyer and seller about the sale of goods that the buyer alleged were deficient. The applicant seller argued that the dispute was required to be submitted to arbitration pursuant to a mandatory arbitration clause that was included in the Terms and Conditions on the seller’s website. The court found that respondent buyer had signed sales orders that referred to the Terms and Conditions and that this was evidence that he agreed to them, including the arbitration clause. The respondent buyer argued that the applicant was estopped from relying on the arbitration clause because the respondent and applicant had a shared assumption that the arbitration clause would not be used and that the parties would instead litigate in court. The respondent buyer argued that, as a result, the clause was “inoperative” and unenforceable pursuant to section 8(2) of the ICAA. However, the court found that there was no evidence of any such shared assumption and therefore there was no estoppel. The court granted the stay application. This case is an important reminder that an arbitration agreement is just a contract and grounds that can render a contract unenforceable, such as estoppel, can also render an arbitration clause “inoperative” and unenforceable for the purpose of an application to stay court proceedings for arbitration.

July 3, 2025July 4, 2025

Alberta – Court enforces med/arb consent award over bias objection – #910

In Heine v Worsfold, 2025 ABKB 307, the court enforced a consent award rendered in a family dispute over objections that the arbitrator – who had also mediated the parties’ settlement – had demonstrated bias against the Applicant in the mediation. While the case raised a plethora of other issues, at the core were allegations about the mediator/arbitrator’s conduct in the mediation process.

June 9, 2025June 9, 2025

Ontario – Technical requirements for stay are precondition to competence-competence principle – #909

In Sherif Gerges Pharmacy Professional Corporation et al. v Niam Pharmaceuticals Inc. et al., 2025 ONSC 2058, the court granted the applicant leave to bring derivative actions, rather than refusing leave based on the respondents’ argument that leave should be denied because of an arbitration agreement contained in a shareholders agreement. In Peace River Hydro Partners v Petrowest Corp., 2022 SCC 41, the Supreme Court of Canada recognized four technical requirements for a stay of court proceedings in favour of arbitration, one of which is that the party applying for a stay of the court proceedings has not taken a step in the proceeding. Rather than bringing a motion to stay the applicant’s leave request under s. 7(1) of the Arbitration Act, 1991, SO 1991, c 17, the respondents participated in the litigation and only raised arguments about an arbitration agreement in their factum responding to the applicants’ leave application. The court applied Peace River, which would have applied had the respondents brought a stay motion, and found that the respondents did not satisfy the technical requirements for a stay, having taken a step in the court proceeding. Because those requirements are a precondition to a stay, the court did not engage with the respondents’ arguments related to the competence-competence principle, and refused to dismiss the application for leave to bring derivative actions on the basis that the court proceeding should proceed by way of arbitration.

June 9, 2025June 9, 2025

International – Waiver of State Immunity and State Parties to the NY Convention – #908

On 17 April 2025, England’s High Court released its judgment in CC/Devas (Mauritius) Ltd. et ors v The Republic of India. The judgment relates to sovereign immunity pursuant to the UK’s State Immunity Act 1978 (“SIA UK”) and the enforcement of arbitral awards made pursuant to a bilateral investment treaty (“BIT”). The specific question for the English High Court was whether or not India had submitted to the adjudicative jurisdiction of the English courts by its ratification of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1959) (“NY Convention”). In finding that India had not waived its sovereign immunity through “prior written agreement” only by ratifying the NY Convention, the English High Court has joined company with other American jurisprudence and has parted company with Canadian, Singaporean, and Dutch jurisprudence arising from the same factual background and underlying disputes.

June 9, 2025June 9, 2025

Nunavut – Court grants stay on grounds that “may arbitrate” clause is mandatory – #907

In Nuqsana Inc. v. Tangmaarvik Inland Camp Services Inc. et. al., 2025 NUCJ 13, the Court granted a stay in favour of arbitration, finding the arbitration agreement provided for mandatory arbitration once either party elected to pursue a dispute by arbitration. The Court interpreted the arbitration clause and found that after mandatory “private amicable discussion and negotiation…”, the language “then any of the Parties may refer the Dispute to Arbitration” required arbitration if one party invoked the clause. The stay provision in Nunavet’s arbitration legislation is significantly different than others among common law provinces.

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.

May 9, 2025May 12, 2025

B.C. – Stay decision unnecessarily applies convenient forum test. – #905

In Mavrakis v TELUS International (Cda) Inc., 2025 BCSC 378, the Court ruled that civil proceedings in B.C. should be stayed in favour of arbitration underway in Virginia pursuant to s. 7 of the Arbitration Act, SBC 2020, c. 2 (the “Act”). All well and good. However, the Court then performed a forum non conveniens analysis under s. 11(1) of the Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c. 28 (“the CJPTA”) and again determined that the B.C. action should be stayed. The Act provides a complete and exclusive answer on stays of court proceedings relating to arbitration. A convenient forum analysis from a different statute for different purposes is not part of the stay of proceedings design in the Act.