Arbitration Agreement Archives - Arbitration Matters

October 20, 2026October 20, 2026

Alberta – Can an Alberta judge order a substitute arbitrator on remittal? – #963

In Frederico v Cabral, 2026 ABCA 251 (CanLII) a single judge of the Court of Appeal granted Federico’s application for permission to appeal a King’s Bench decision (the “Decision”) that set aside a spousal support Arbitration Award (the “Award”) and ordered a new hearing before a substitute arbitrator. The judge found that Federico had raised a reasonably arguable position: that the appointment of a substitute arbitrator exceeded the authority of the King’s Bench judge who heard the original appeal from the Award. Section 16(1) of Alberta’s Arbitration Act(the “Act”) provides that a substitute arbitrator shall only be appointed when an arbitrator’s mandate is terminated. Pursuant to section 14, an arbitrator’s mandate ends only under specific enumerated circumstances. None of them applied here. Despite this, the appeal judge appointed a substitute arbitrator on remittal. The case raises an important question: does an arbitrator’s mandate automatically end at delivery of a final award in Alberta? It also highlights whether a court can interfere with parties’ intention to have their dispute determined by a specific arbitrator by ordering a substitute arbitrator.

October 20, 2026October 20, 2026

Manitoba – Inconsistent, contradictory, and flawed arbitration agreements cannot be performed – #962

In Bains v Loader, 2026 MBCA 66, the Court found no palpable and overriding error in the lower court’s judgment that ICC arbitration agreements in two international commercial contracts were incapable of being performed because of poor drafting. However, the Court reversed the findings that two technical prerequisites of the Peace River Hydro v Petrowest Corp. stay test were not satisfied, and declined to endorse the findings that the agreements were null and void or inoperative, “or any suggestion … that exceptions, other than those set out in the ICAA, are relevant to the exception analysis in this case.”

September 21, 2026September 17, 2026

Ontario – Shareholder of corporate signatory is party to partnership arbitration clause – #960

In 1171757 Ontario Limited et al. v 1171758 Ontario Limited et al., 2026 ONSC 4414, the court held that the shareholder of a corporate partner qualified as a “party” to the partnership agreement and therefore was entitled to bring claims pursuant to its arbitration clause. Applying principles of contractual interpretation, the court found that the plain wording of the partnership agreement contemplated that the term “parties”, which appeared in the agreement’s arbitration clause but was not a defined term in the agreement, included shareholders of the partners. Further, the court determined that claims brought by “parties” respecting contracts made with the corporation which legally owned the partnership’s property assets were arbitrable under the partnership agreement, despite that the corporation itself seemingly was not a party to the agreement.

August 24, 2026

Alberta – Court Dismisses Application to Decide Scope of Unwritten Arbitration Agreement – #957

In 1775773 Alberta Ltd. v Hill, 2026 ABKB 511, the Application Judge considered the limits of the Court’s jurisdiction to determine the scope of an arbitration. The case arose in circumstances where the parties had agreed that all but one of the issues between them would be arbitrated but had not entered into a written arbitration submission agreement or otherwise consented to the Court determining whether the remaining issue should be referred to arbitration. The Application Judge refused to refer any of the issues to arbitration, finding that there was no “meeting of the minds” on the submission agreement and that an arbitration agreement could not be implied from the parties’ Unanimous Shareholders Agreement (the “USA”). He also found that he lacked authority to refer the disputed issue to arbitration because the parties had not consented to the Court determining whether it should be arbitrated.

August 24, 2026

Québec – “May” means “must” in arbitration agreement – #956

In Avalin Group FZE c. Lauzon – Planchers de bois exclusifs inc., 2026 QCCA 651, the Québec Court of Appeal overturned a judgment of the Québec Superior Court, which refused to refer the matter to arbitration because the arbitration agreement stipulated that the parties “may” initiate an arbitration if mandatory mediation is unsuccessful. The Superior Court had ruled that the word “may” meant that the arbitration agreement did not exclude the jurisdiction of domestic courts. The Court of Appeal overturned that decision. It applied the rules of interpretation of contracts and concluded that the parties intended to enter into a binding and exclusive arbitration agreement (clause compromissoire parfaite), despite the ambiguity created by the word “may”. It therefore granted the application for declinatory exception and referred the matter to arbitration. The Court of Appeal’s decision aligns with more recent jurisprudence as well as commentary regarding arbitration agreements from both Québec and international sources.

July 27, 2026July 27, 2026

Ontario – JAMS arbitration clause survives bias and unconscionability challenges – #954

Abouzeid v. eXp Realty of Canada Inc et al., 2026 ONSC 3329 confirms that speculative concerns regarding institutional bias in the administration of an arbitration, absent evidence of actual unfairness or an inability to appoint an independent and unbiased arbitrator, will not render an arbitration agreement invalid, unconscionable, or incapable of performance, and will not prevent a mandatory stay under s. 7(1) of Ontario’s Arbitration Act, 1991, S.O. 1991, c. 17 (the “Arbitration Act”). The Court rejected the plaintiff’s two principal arguments: first, that the administering authority under the relevant arbitration agreement (JAMS) would be unable to administer an unbiased arbitration because the respondent frequently selected JAMS as an administering institution; and second, that the limited size of the Canadian JAMS arbitrator roster rendered the arbitration agreement incapable of performance (an issue for Canadian administering institutions to consider). These arguments failed because the parties were free to select any arbitrator – they were not restricted to the JAMS roster – and because repeat use of an administering authority does not give rise to bias.

June 29, 2026September 8, 2026

B.C. – Peace River broadened proper parties to arbitration – #951

In Otter Point Properties Nominee Ltd. v GT Mann Contracting Ltd., 2026 BCSC 558, the Court ordered a stay of an action in favour of arbitration where some of the parties were signatories to the arbitration agreement and it was “arguable” that others were also parties. The Court found that Peace River Hydro Partners v. Petrowest Corporation, 2022 SCC 41 broadened the definition of party. Here, it was arguable that a non-signatory could become a party to the arbitration agreement “through its sole shareholder” who was a signatory and so could a non-signatory nominee of a contracting party if agency or a reason to pierce the corporate veil was established. The stay was granted based on the pleadings and the determination of the proper parties referred to the arbitrator under the principle of competence-competence.

June 1, 2026

Ontario – A med-arb agreement is a multi-tier agreement – #948

In Friel v HUB International Limited, 2026 ONCA 313, the Appellant signed an employment agreement with a med-arb clause and an option agreement for shares with a forum selection clause that stated that the Courts of Delaware had jurisdiction over any disputes. When a dispute arose, the Appellant sought an order appointing an arbitrator and a declaration that the option agreement was unconscionable and invalid. Ultimately, the motion judge and the Ontario Court of Appeal found that the employment agreement did not apply and that the Courts of Delaware had jurisdiction. This case note considers the unique aspects of a med-arbitration agreement as compared to a standard arbitration in a jurisdiction analysis. A med-arb agreement is best understood as a variety of stepped arbitration agreement.

June 1, 2026

Newfoundland and Labrador – Model Law applied to domestic commercial dispute – #947

In 55104 Newfoundland and Labrador Inc. v. Wärtsilä Canada Incorporated, 2026 NLSC 29, the Court granted a stay and referred a warranty dispute to arbitration before the ICC in Paris. The Court held that the province’s International Commercial Arbitration Act, RSNL 1990, c. I15 (“ICAA”), not the domestic Arbitration Act, RSNL 1990, c. A14 (the “AA”), governed the dispute, even though all the parties and the subject of the contract were in Newfoundland. That mattered, as under the ICAA, a stay was mandatory unless a narrow exception applied (which it didn’t). Under the AA, the Court would have had discretion to refuse a stay, as the Plaintiffs urged. The decision highlights Newfoundland’s outlier status among common law provinces. While its domestic statute still permits discretionary stays, other common law provincial statutes provide for mandatory stays.

April 6, 2026April 10, 2026

B.C. – Narrow basis for refusing to stay an action reiterated – #942

In Aspen Technology, Inc. v. Wiederhold, 2025 BCCA 261 (“Aspen“) the Court reversed a lower court’s finding that an arbitration clause was void and inoperative. In concluding the motions judge erred, the Court confirmed the very limited grounds upon which a court can refuse to stay an action in favour of arbitration. It closes a door the lower court in Aspen had opened and corrects the lower court’s application of the Dell Computer and Uber frameworks.