Arbitration Agreement Archives - Arbitration Matters

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.

February 24, 2025February 24, 2025

Ontario – Natural justice does not require second opportunity to make submissions – #897

In Edenrock Holdings Inc. v. Moscone, 2025 ONSC 32, the Court refused to set aside an arbitral award, or grant leave to appeal, with respect to a claimed breach of natural justice, the supposed improper re-opening of earlier decisions, or the alleged apprehension bias of the Arbitrator who issued the Award. The Court found that there was no denial of natural justice when the Arbitrator ruled on a matter in respect of which the Applicants did not make submissions because they argued that the Arbitrator did not have jurisdiction. They argued they should have been given a separate opportunity after the Arbitrator ruled that he had jurisdiction.

February 7, 2025February 10, 2025

Ontario – Breach of arbitration clause gives rise to cause of action – #894

In Fowlie et al v Wrestling Canada Lutte et al, 2024 ONSC 7196 (“Fowlie”), the Court considered the appeal of a motion judge’s order declining to strike a breach of contract claim made by a sports dispute resolution expert (“Expert”) against Wresting Canada Lutte (“WCL”). The Expert claimed that WCL had breached their contract by failing to engage in a contractual dispute resolution process before WCL terminated the contract without cause. The dispute resolution clause in the parties’ contract included the option to refer disputes to arbitration. The Court granted the appeal and struck the Expert’s claim. The Court held that the dispute resolution clause only applies when a “dispute” arises. Because there was no dispute as between the Expert and WCL about the validly of the without-cause termination while the contract was in force, there was no “dispute” to which to apply the dispute resolution clause. This decision is surprising in view of the separability principle that arbitration agreements survive contract termination. Arbitration jurisprudence suggests that the arbitration agreement in the contract between WCL and the Expert should have been treated as an independent agreement that survived termination of the main contact.

February 7, 2025February 25, 2025

Federal – Binding Mediation not Arbitration – #893

In RS Marine Ltd. v. M/V Terre Neuvas (Ship), 2024 FC 1825, the Court was tasked with considering whether to stay a proceeding in favour of arbitration in a dispute arising from a joint venture agreement between the plaintiffs—RS Marine Ltd. (“RSM”) and Murphy Marine Ltd. (“MML”)—and the French-based defendant SPM Ocean SAS (“SPM”). The key issue before the Court was whether a dispute resolution clause in the subject agreement required the parties to arbitrate their disputes. Relatedly, the Court had to consider if it had the authority to rule on this point or if it ought to be left to an arbitrator to rule on their own jurisdiction.

February 7, 2025February 10, 2025

Alberta – Court rejects Ontario approach to stays of enforcement – #892

In Inter Pipeline Ltd v Teine Energy Ltd, 2024 ABKB 740 (“Inter Pipeline”), the Court set out the three-part test a party must meet to obtain a stay of enforcement of a domestic arbitration award in Alberta, rejecting as “not principled” the two-part test that applies in Ontario. The Court also addressed the argument that refusing a sealing order in these circumstances would put a chill on challenges to arbitral awards.

January 24, 2025January 24, 2025

Ontario – “Finally Resolved” means “Final and Binding” – #890

In Johnson Bros. Corporation v. Soletanche Bachy Canada Inc., 2024 ONSC 6296, the Court found that the parties had contracted out of the right to appeal on the basis that the arbitration agreement provided that disputes were to be “finally resolved” by arbitration.

January 2, 2025December 16, 2024

Josh’s 2024 Hot Topic – Consensual arbitration appeal mechanisms – #884

This year, in a landmark decision, McLaren Automotive Incorporated c.9727272 Canada Inc, 2024 QCCS 3457, the Québec Superior Court rendered a first-ever ruling that considered the validity of an arbitration appeal mechanism whereby the parties’ arbitration agreement allowed the appeal of an award to a different arbitrator. As reported in Arbitration Matters case note no. 864 (“Parties May Agree Upon an Arbitral Mechanism”), the Court found that such a mechanism does not offend public order principles set out in art. 622(3) of the Québec Code of Civil Procedure (“CCP”). Therefore, it found that Québec law does not prevent the parties from agreeing to an appeal mechanism in their arbitration agreement, even though it is not provided for in Québec arbitration law, which is based on the UNCITRAL Model Law.

December 30, 2024December 16, 2024

Julie’s 2024 Hot Topic – Exceptions to Competence-Competence Litigated in Appellate Courts in 2024 – #883

In 2024, for the first time, two appeal courts considered the “brick wall” exception to competence-competence set out in Uber Technologies Inc. v. Heller, 2020 SCC 16 (“Uber”).

December 20, 2024December 13, 2024

Alberta – Arbitrator’s Resignation does not terminate arbitration – #882

In Belanger v Pokol, 2024 ABKB 646, the Court dismissed an application by a party to the dispute to “be released from arbitration.” The Applicant argued that the resignation of the arbitrator following allegations of reasonable apprehension of bias effectively terminated the arbitration. The Court found that since the arbitration agreement provided for the appointment of a substitute arbitrator in the event of the arbitrator’s resignation, the arbitration was not terminated, and the parties were bound to continue. He ordered the parties to attempt to agree on a new arbitrator, failing which either party could apply to the Court to have one appointed.

December 16, 2024December 13, 2024

Ontario – Order of competence-competence analysis on stay motion challenged – #880

In Lochan v Binance Holdings Limited, 2024 ONCA 784 (“Binance”), the Court considered the appeal of the Motion Judge’s finding that an arbitration clause in a crypto trading agreement was void because it was contrary to public policy and unconscionable. The arbitration clause was part of a standard form contract between the appellant and crypto users. It provided that the appellant could change any part of the arbitration agreement, including the forum and governing law, and that users agreed to any amendments. On appeal, the appellant argued that the Motion Judge had failed to first consider the competence-competence principle in his analysis. The Court dismissed the appeal, finding that the Motion Judge had followed the approach of the Supreme Court of Canada in Dell Computer Corp. v Union des consommateurs, 2007 SCC 34 (“Dell”) and Uber Technologies Inc. v Heller, 2020 SCC 16 (“Uber”) when he considered the competence-competence principle before he considered if an exception to that principle applied to allow the court to consider if the clause was unenforceable.