Domestic Archives - Page 4 of 27 - Arbitration Matters

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.

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 24, 2025January 24, 2025

Ontario – Appeal prohibition applies beyond limits of arbitral appointment applications – #889

In Toronto Standard Condominium Corporation No. 2299 v Distillery SE Development Corp., 2024 ONCA 712, the Court held that there could be no appeal from an order appointing an arbitrator, even though the order did not explicitly indicate that it was made pursuant to s. 10 of the Arbitration Act, 1991, SO 1991, c 17. Section 10(1) provides that the court may appoint an arbitrator on a party’s application if, for example, the arbitration agreement provides no appointment procedure. Pursuant to s. 10(2), there is no appeal from the court’s appointment. Here, the application for an order appointing an arbitrator did not refer to s. 10 of the Arbitration Act but did refer to Rule 14.05 of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194 (the general rule pertaining to applications and what types of relief may be sought by application, including a determination of rights under a contract). This reference to Rule 14.05 did not engage s. 6 of the Ontario Courts of Justice Act, RSO 1990, c C.43, which sets out the matters over which the Court of Appeal has jurisdiction and provides for an appeal as of right in respect of most final orders of Superior Court judges. The appeal of the appointment order was quashed based on the appeal prohibition in s. 10(2) of the Arbitration Act.

January 3, 2025January 10, 2025

Jim’s 2024 Hot Topic – The duty of good faith in domestic arbitration – #885

Rather than picking a specific case for a Holiday Hash-over I’ve opted for a broader theme: since arbitration is contractual, to what extent do/should the principles set out in the SCC’s 2014 decision in Bhasin v. Hrynew 2014 SCC 71 (“Bhasin”) and its descendants apply to a Canadian domestic arbitration and what practical difference might it make?

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 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 4, 2024December 3, 2024

Ontario – Court weighs in on standard of review post-Vavilov (and decides) – #879

In Burwell v. Wozniak, 2024 ONSC 1234, the Court grappled with the appropriate standard of review to apply to arbitral awards. The heart of the underlying dispute was whether the appellant Burwell’s promise of shares in his company was sufficient to establish an estoppel against him in favour of his former partner, Wozniak. This case is noteworthy because most cases since Vavilov have not weighed in on the issue and have simply said that, regardless of the standard of review, the appellant does not meet it.

December 2, 2024November 29, 2024

Ontario – Court Grants Extraordinary Remedy of Removing Arbitrator for Undue Delay – #878

In Maharajh v Mathura, 2024 ONSC 5737 (“Maharajh”), the Court granted an application to remove an Arbitrator for undue delay. The Arbitrator went silent for four months without explanation and then consented to the Applicant’s request that she resign. The Court was required to rule on the issue when the Respondent refused to consent. The delay was “undue” because the Applicant was prejudiced by it. This undermined the arbitration agreement. The parties could not cooperate, so their dispute returned to court.