Federal Archives - Arbitration Matters

October 3, 2025October 7, 2025

Federal – No Stay Where Case a Proper One for Summary Judgment – #919

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.

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.

October 23, 2024October 25, 2024

Federal Court – Section 46(1) of Marine Liability Act gives claimant option to avoid arbitration – #870

Crosby Molasses Company Limited v. Scot Stuttgart (Ship), 2024 FC 1358 highlights a little-known provision in Canadian maritime law that is being interpreted in a way that ignores arbitration law principles and overrides arbitration clauses in the context of international maritime carriage of goods. The provision, section 46(1) of the Marine Liability Act, SC 2001, c 6 (“Marine Liability Act”) states that, “if a contract for the carriage of goods by water provides for the adjudication or arbitration of claims… in a place other than Canada, a claimant may institute judicial or arbitral proceedings in a court or arbitral tribunal in Canada...”

September 11, 2024September 20, 2024

Federal – Arbitrations may be private but may NOT be confidential – #861

In SOS Marine Inc. v. M/V Gentle Seas (Ship), 2024 FC 1042 (CanLII), (“SOS Marine“) the Court rejected arguments that information disclosed in arbitral proceedings should be kept confidential in an unrelated court proceeding involving third parties.

July 22, 2024July 25, 2024

Federal – Competence- competence: a rule of chronological priority – #849

In Attorney General of Canada v. Aéroports de Montréal, 2023 FC 1562, the Court decided the issue of a tribunal’s jurisdiction under section 16(3) of the UNCITRAL Model Law, which is incorporated into the Commercial Arbitration Act, R.S.C., 1985, c. 17 as the “Commercial Arbitration Code” (the “CAC”). The tribunal had made a preliminary ruling that it had jurisdiction over the commercial dispute between the parties. The Court upheld the tribunal’s finding. The issue involved a determination of whether the arbitration clause in one of three related contracts applied. This case reiterates the following key arbitration principles: the power of an arbitral tribunal to rule on its own jurisdiction does not limit the powers of the Court to weigh and make its own findings of fact, on the basis of the evidence, and to consider and rule de novo on that jurisdiction; the Court must take the pleaded facts by a plaintiff as true on a jurisdiction motion; and if both interpretations of an arbitration agreement proposed by the parties are possible, priority must be given to the interpretation that favours the jurisdiction of the arbitral tribunal.

August 31, 2023August 28, 2023

Federal – Independence/impartiality not essential criteria for arbitrator appointment? – #770

In Export Development Canada v. Suncor Energy Inc., 2023 FC 1050, the Federal Court heard an application for an order appointing an arbitrator pursuant to an arbitration clause in a political risk insurance policy (the “Policy”). The Court made several findings on the five issues before it. Two of those findings are highlighted here, with the others addressed below. First, subsidiaries of one of the parties claimed they were improperly included in the arbitration – as they were not parties to the arbitration agreement – and therefore claimed the Court had no jurisdiction to appoint an arbitrator in a manner that would bind them. The Court rejected this and refused to preliminarily determine that jurisdictional issue, which was a matter for the arbitrator pursuant to the competence-competence principle. Second, the Court determined what criteria should apply to the selection of the sole arbitrator. The Court held that the criteria of independence and impartiality, among others, are not “threshold criteria” and would not necessarily disqualify a proposed arbitrator if not met. Rather, they are part of what the Court considers in exercising its discretion.

July 18, 2023July 17, 2023

Federal – Stay test may vary – no Canadian standard arbitration stay provision – #755

In General Entertainment and Music Inc. v Gold Line Telemanagement Inc., 2023 FCA 148, a unanimous Federal Court of Appeal (Webb, Rennie, and Locke, JJA) upheld a stay of court proceedings in a copyright and trademark infringement action. As a result, complicated disputes about party identity will be resolved in the international arbitration, not by the court which heard the motion to stay. The decision underscores a key stay of proceedings principle: complex questions of fact or mixed fact and law relating to arbitral jurisdiction should first be referred to the arbitrator. This is so even in the absence of a standard statutory stay of proceedings provision, as occurred in this case. Stay considerations differ by jurisdiction and context, domestic or international, and it is not an invariable technical prerequisite that a party must apply for the stay before taking any step in the court proceedings.

December 19, 2022December 15, 2022

Ontario – High threshold to set aside international award for damages not met – #694

In Clayton v. Attorney General of Canada, 2022 ONSC 6583, Justice Akbarali rejected an attempt to set aside a damages award made by a three-member tribunal (the “Tribunal”) originally constituted under Chapter 11 of the North American Free Trade Agreement (“NAFTA”). The applicants argued that the Tribunal had exceeded its jurisdiction in respect of the legal standard to be applied, breached procedural fairness by refusing to admit certain expert evidence, and rendered an award that was contrary to public policy. Citing previous jurisprudence on the high thresholds to be met for each of these grounds to succeed – thresholds consistent with deference to arbitral tribunals, – Justice Akbarali found no errors had be committed. She dismissed the application.

April 27, 2022April 25, 2022

Federal – Pirating action stayed under New York Convention – #610

In General Entertainment and Music Inc. v. Gold Line Telemanagement Inc., 2022 FC 418, Justice Fothergill of the Federal Court allowed an appeal of the prothonatory’s order and stayed an action for breach of certain provisions of the Copyright Act, the Trademarks Act and the Radiocommunication Act in favour of arbitration seated in Bermuda. In doing so, he applied Article II.3 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) and the Supreme Court of Canada’s jurisprudence on staying court proceedings in favour of arbitration. The prothonatory erred in applying the law relating to a forum selection clause to an arbitration clause.

August 4, 2021May 4, 2022

Federal CA – Arbitrator/Adjudicator expressing “tentative views” in pre-adjudication mediation to foster settlement not indicative of bias – #515

In Fono v. Canada Mortgage and Housing Corporation, 2021 FCA 125, the Federal Court of Appeal heard a second-level appeal of a prothonotary’s decision to strike out parts of the appellant’s notice of application for judicial review and affidavit on the basis that they contained settlement privileged information, specifically, evaluative statements allegedly made by the labour adjudicator in a pre-hearing mediation, which the appellant argued demonstrated bias. The FCA found the Federal Court judge made no error in upholding the prothonotary’s decision, specifically noting that the impugned statements did not demonstrate bias merely because the labour adjudicator expressed tentative views on offers made and positions taken in the dispute with a view to fostering settlement.