notes on new arbitration cases in Canada
Issues related to the involvement of third parties in arbitration can be particularly challenging in practice given that few Canadian court decisions address this topic. The purpose of this blog is to address the following three key issues related to third parties in arbitration:
Document production is a third rail to many arbitration practitioners, and not a likely topic for an annual reflection blog! The risk of provoking memories (possibly distant, but still visceral) of sifting through dusty boxes or their digital equivalent may be, for many potential commentators, too great. Privilege logs, relevance, and redactions, oh my!
Continue reading “Timothy Reflects (2025) – The (Sometimes) Long Tail of Disclosure Disputes – #928”
The standard of review for an appeal of a commercial arbitration award has been a topic of debate since the release of the administrative law decision of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. Since then, lower courts in Canada have grappled with two opposite interpretations: the first, that the standard of review analysis in Vavilov applies to commercial arbitrations, and the second, that the standard of review for commercial arbitration awards is reasonableness, as established in Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 [Sattva] and Teal Cedar Products Ltd v British Columbia, 2017 SCC 32 [Teal Cedar].
Continue reading “Stephanie’s Reflections (2025): The Battle of the Standards of Review – #926”
In Vandenbosch v Rogers Communications Canada Inc, 2025 BCSC 1199, the Court granted both defendants’ applications to stay court proceedings in favour of arbitration. The stay against the primary defendant was granted, even though the arbitration clause was contained in a consumer contract. The Court considered recent amendments to BC’s Business Practices and Consumer Protection Act, SBC 2004, c. 2 (“BPCPA”) prohibiting arbitration clauses in consumer contracts, which came into force during a continuance of the hearing of the defendants’ stay applications. The Court found that the amendments had a retrospective effect on future disputes arising under contracts concluded prior to the amendments, but not a retroactive effect on disputes arising from facts occurring prior to the amendments. Accordingly, the BPCPA amendmentsdid not apply to the plaintiff’s action, which was based on claims that arose before the amendments were passed. Therefore, the Court granted the stay of the court proceedings. The Court also stayed claims raised against a second defendant, a non-signatory to the arbitration agreement, on the basis that these claims were based on the same factual matrix as the claims formulated against the primary defendant, which was a party to the arbitration clause.
Continue reading “BC – BPCPA amendments prohibiting arbitration agreements in consumer contracts retrospective not retroactive – #924”
MTCC No. 1251 v Windsor Arms Hotel Corp., 2025 ONSC 5009 offers a cautionary tale for arbitrators when confronting late-arising potential conflicts. The Court removed the Arbitrator for a reasonable apprehension of bias. It did so, not because of the potential conflict itself, which it found would have been insufficient on its own, but because of the way the Arbitrator managed the issue after disclosure. It was this handling, rather than the conflict per se, that rendered the apprehension of bias reasonable.
Continue reading “Ontario – Arbitrator Removed for Management of Potential Conflict After Disclosure – #922”
Buffalo Point First Nation v Buffalo Point Cottage Owners Association Inc, 2025 MBCA 72 was the first appellate court to decide that the standard of review set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 for reviews of decisions of administrative tribunals does not apply to appeals of commercial arbitration awards. (As explained below in my commentary, this italicized language is critical to the analysis of this case.) Instead, the “reasonableness” standard of review, which was established in Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53 and affirmed in Teal Cedar Products Ltd v British Columbia, 2017 SCC 32, applies. In other words, Vavilov did not overturn Sattva. The fact that domestic arbitration legislation provides an appeal right does not mean that the same “appellate standards” apply in this context. The Court applied the reasonableness review analysis set out in Vavilov, except it found that a greater level of deference might be owed to an arbitrator’s expertise given the purpose of commercial arbitration; namely, giving effect to the parties’ desire for that method of dispute resolution. In other words, this standard of review reflects the reasonable expectations of the parties.
Continue reading “Manitoba – First CA finding reasonableness standard applies to commercial award appeals – #921”
In QSL Canada Inc. v. Canpotex Terminals Limited, 2025 FC 1012, the Court dismissed the Defendant’s motion to stay the action in favour of arbitration and granted the Plaintiff’s motion for summary judgment. In so doing, the motion judge analyzed contractual and legal issues that were plainly subject to the parties’ arbitration agreement. This is permitted by the statutory exceptions to stay motions found in the arbitration legislation across the country demonstrating that the policy behind courts respecting parties’ agreement to arbitrate is not absolute. One of the limited exceptions applies to cases where it is found that summary judgment is appropriate. Interestingly, the Defendant also brought the stay motion under the Federal Court general stay provision.
Continue reading “Federal – No Stay Where Case a Proper One for Summary Judgment – #919”
BizTech v Accreditation Canada, 2025 ONSC 2689 appears to be the first application of section 7(1) of the Arbitration Act, 1991, S.O. 1991, c. 17(the “Arbitration Act”) , or any comparable provisions in other Canadian arbitration legislation, to stay a judicial review proceeding (para. 151). The decision establishes that staying a judicial review proceeding under section 7(1) of the Arbitration Act, in order to allow an arbitration to proceed, is not at odds with an individual’s right to apply for judicial review, depending on the facts of the case.,
Continue reading “Ontario – A first: arbitration an appropriate alternative to judicial review – #917”
In Hydro-Québec v. Terrassement St-Louis inc., 2025 QCCA 900, the Court dismissed the demand of Appellant Hydro-Québec’s (“Hydro-Québec”) to refer the file to arbitration. Although the parties were bound by a valid arbitration agreement, the Court confirmed the first instance judge’s conclusion that the arbitration agreement was included in a contract of adhesion and that the arbitration agreement itself was abusive; because of the small amount in dispute, the three-arbitrator panel prescribed by the arbitration agreement resulted in a denial of justice for the Respondent. Therefore, the arbitration agreement was declared null under section 1437 C.C.Q. According to the Court’s reasoning, the arbitration agreement should have been flexible to take into consideration smaller amount disputes by having the option of a sole arbitrator and/or expedited arbitration rules.
Continue reading “Québec – Arbitration clause in contract of adhesion abusive and null – #916”
In Spinney v. Fowlie, 2025 ONSC 2632, the Court set aside an award for want of procedural fairness. The Court found the applicants were denied fair and equal treatment when the Arbitrator decided, partway through a hearing, to switch from an oral to written hearing format and refused to consider the applicants’ written closing submissions. This case should serve as a reminder that even difficult parties are entitled to procedural fairness.
Continue reading “Ontario – Mid-arbitration switch to written hearing/refusing to consider submissions procedurally unfair – #915”