Competence-Competence Archives - Arbitration Matters

In Fraser N Peterson Professional Corporation v Mark WM Leishman Professional Corporation, 2026 ABKB 568, the Court dismissed an application under section 47 of the Alberta Arbitration Act, RSA 2000, c A-43 (the “Act”) for a declaration that an arbitration agreement was invalid, and that the arbitrator lacked jurisdiction. Although the competence-competence principle would ordinarily require the arbitrator to decide the jurisdiction question first, the Court held that it could hear the jurisdictional challenge under section 47 of the Act. The Court relied on foundational efficiency principles, noting that the parties had advanced comprehensive submissions on an uncontested factual record, the dispute turned primarily on the interpretation of written agreements, and the statutory framework prevented the applicant from making the same challenge before the arbitrator. The Court concluded that the arbitration agreement was valid and survived the termination of the parties’ underlying contract.

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.

About Arbitration Matters

Arbitration Matters provides brief summaries of recent cases on commercial arbitration issues, as they are released, from across Canada. Therefore, the website is updated frequently. Each Case Note also provides commentary which helps put the case in context. As of Case Note #509 dated July 26, 2021, Lisa C. Munro, has continued the work done by the Honourable Justice Daniel Urbas before his judicial appointment to the Quebec Superior Court. She is assisted by a select group of other experienced arbitration practitioners, who also contribute regularly to the Case Notes.

Tag: Competence-Competence

Alberta – Competence-competence and efficiency considered in declaration of invalidity of arbitration application – #961

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