Domestic Archives - Arbitration Matters

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

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 9, 2025

Québec – Clarification on territorial jurisdiction versus arbitral seat under C.C.P. – #904

In BE Franchise inc. v. 9415-1511 Québec inc., 2024 QCCA 1498, the Court of Appeal dismissed the Appellant’s appeal. It confirmed the Superior Court’s ruling that the court’s territorial jurisdiction was the Respondent’s domicile, unless the parties agree otherwise, according to the general territorial jurisdiction’s rules of the Code of Civil Procedure (sec. 41 to 48 C.C.P.) The Court also confirmed that the general territorial jurisdiction rules apply to arbitrations because of the absence of a district designation by the Parties and of the absence an agreement between the Parties or an arbitration rule that would give the arbitrator the jurisdiction to fix the place of arbitration and therefore the Court competent district. The Court also ruled that in Québec, the place where the arbitration award is made cannot be deemed to be the place of arbitration because of the language used in article 642 C.C.P., which is different from the language used in article 31(3) of the Model Law. Therefore, on this issue, Quebec law is different from the Model Law. In the present case, the Court of Appeal ruled that no facts showed that the place of arbitration was the same as the place where the award was rendered.

April 7, 2025April 7, 2025

Ontario – “No appeal” means “no appeal” (and other stuff) – #903

In Joseph Lebovic Charitable Foundation, et al v. Jewish Foundation of Greater Toronto, et al, 2024 ONCA 933,(“Lebovic“) the Court confirmed its prior ruling in Iris Technologies Inc. v. Rogers Communications Canada Inc., 2022 ONCA 634 (“Iris”). In both cases the arbitrator ruled, as a preliminary question, they had jurisdiction to decide the matter before them. In both cases one of the parties unsuccessfully sought a review of that ruling pursuant to s. 17(8) of the Ontario Arbitration Act, 1991. In both cases that party attempted to appeal to the Court of Appeal. And in both cases the motion to appeal was quashed with the Court of Appeal holding that s. 17(9) clearly prohibits any appeal from such a review.

April 7, 2025April 7, 2025

Alberta – Multiplicity of Proceedings No Basis for Stay of Arbitration – #901

In Sivitilli v PesoRama Inc., 2025 ABCA 56, the Court clarified that the grounds for staying an arbitration are exhaustively set out in Section 7(2) of the Alberta Arbitration Act, which does not provide for a stay in the event of a multiplicity of proceedings. Section 6(c) of the Arbitration Act does not provide any further discretion to stay an arbitration. This decision is in line with the Supreme Court of Canada’s decision in TELUS Communications Inc. v. Wellman, 2019 SCC 19.

March 7, 2025March 7, 2025

Québec – Filing an action is not a waiver to arbitrate by Plaintiffs – #900

In Gauvin v. SBYC1935 Inc., 2025 QCCS 11, the Court granted an application by the Plaintiffs to have their own action stayed and referred to arbitration. The Defendant contested the application, arguing waiver of arbitration and tardiness in the filing of the application to stay, as the statutorily prescribed deadline to seek a stay was well past. The Defendant also argued the application was dilatory and an abuse of process by the Plaintiffs. The Court found that there was insufficient evidence of waiver and, noting that the deadline to seek a stay is not strict, it exercised its discretion to relieve the Plaintiffs’ delay.

March 7, 2025March 7, 2025

Ontario – More efficient expert determination process to proceed ahead of litigation – #899

The decision in CLEAResult Canada Inc. v. Santomero, 2024 ONSC 6054 reinforces the principle that courts will generally uphold private dispute resolution mechanisms unless there is prima facie evidence that the process is fundamentally flawed (see para. 67). Here, the court held that the more expeditious, efficient and simple process before an accounting expert (BDO Canada LLP) to determine the Reverse Earn-out Amount in an M&A dispute was to proceed in tandem with other litigation between the parties, and was not to be held up by that litigation.

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 24, 2025February 24, 2025

Alberta – Arbitration agreement did not bind non-signatory beneficiary under container contract – #896

In Husky Oil Operations Limited v Technip Stone & Webster Process Technology Inc, 2024 ABCA 369, the Court found that a non-signatory beneficiary under a contract was not bound by an arbitration agreement contained in it. The Court found the arbitration agreement did not contain the “clear and explicit language” it deemed necessary to bind the non-signatory.