Jurisdiction Issues Archives - Arbitration Matters

October 3, 2025October 3, 2025

Ontario – Party bound by rule change despite not agreeing to it – #920

In InFrontier AF LP v. Rahmani, 2025 ONSC 3968 (CanLII) (“InFrontier”), the Court heard an application to recognize and enforce an award and considered the effect of amendments to the arbitral rules chosen by the parties in their arbitration agreement. The parties had agreed to settle disputes by arbitration seated in Dubai using a specific set of arbitration rules (the “OldRules”) administered by a specific arbitral institution. Before the arbitration commenced, a change in Dubai law led to those rules being replaced by a new set of rules (the “New Rules”) to be administered by a different institution. As described below, there was a degree of connection between the Old Rules and the New Rules and between the two institutions. The arbitration proceeded under the New Rules. Mr. Rahmani, the Respondent in the arbitration, unsuccessfully challenged the arbitrator’s jurisdiction to proceed under the New Rules. He was also unsuccessful in the arbitration. InFrontier applied for recognition and enforcement of the award in Ontario. Mr. Rahmani opposed the application, arguing: (1) the composition of the tribunal and the arbitration procedure were not in accordance with the arbitration agreement because the arbitration proceeded, without his agreement, under the New Rules, (2) recognizing and enforcing the award would be contrary to public policy in Ontario because it was obtained as a result of a retroactive amendment to the arbitration agreement without the parties’ consent, and (3) he was unable to present his case during the arbitration. The Court rejected all his arguments.

This case summary deals only with Issue 1.

September 16, 2025September 23, 2025

Alberta – Exercise of Share Purchase Option Precludes Arbitration of Oppression Claims – #918

In ONE Properties Holdings Corp v Turtle Bay Investments Ltd, 2025 ABKB 313, the Court held that the exercise of a contractual option to buy out a minority shareholder and the accompanying independent share valuation mechanism extinguished parallel oppression claims brought by the minority shareholder pursuant to the arbitration agreements in unanimous shareholder agreements (“USAs”). At the time, the separate option agreement had already been exercised and the minority shareholders’ shares, in respect to which the oppression was being invoked, were already subject to the independent valuation mechanism. The Court declared that, under s. 47(2) of the Alberta Arbitration Act, the arbitration provisions in the two USAs were either invalid or ceased to exist.

July 31, 2025August 1, 2025

Ontario – Interpretation of Standard Form Multi-Tier Dispute Resolution Clauses Still Vexing – #914

In J.P. Thomson Architects Ltd. v. Greater Essex County District School Board, 2025 ONCA 378 (the “Decision”), the Court provides important guidance on the interpretation of multi-tier dispute resolution clauses.

History of the Dispute – J.P. Thomson Architects Ltd. (“Thomson”) is an architecture firm which provided services to the Greater Essex County District School Board (the “Board”) for nearly 50 years. The contracts in question contained a standard form Ontario Association of Architects multi-tier dispute resolution clause (as it existed at the time of contract).

July 3, 2025July 4, 2025

Québec – Court annuls award for failure to respect appointment procedure in arbitration clause. – #912

In Medicell Pharmaceutical (S) Pte Ltd v. Pharmascience Inc. 2025 QCCS 1325, the Court annulled an interim arbitral award issued ex parte, holding that the arbitrator had not been validly appointed under the parties’ agreement, which provided that the arbitration was to be administered by and conducted by one arbitrator in accordance with the rules of the Québec Code of Civil Procedure (“CCP”). In setting aside the award, the Court emphasized that arbitration is consent-based and that a party cannot unilaterally appoint an arbitrator, even in urgent circumstances and even when the parties’ arbitration agreement allows for provisional measures. Crucially, the Court held that Applicant, which sought the annulment of the interim award, had not waived compliance with the agreed appointment procedure – its silence and engagement, albeit limited, did not amount to tacit acceptance of the arbitrator’s appointment.

June 9, 2025June 9, 2025

International – Waiver of State Immunity and State Parties to the NY Convention – #908

On 17 April 2025, England’s High Court released its judgment in CC/Devas (Mauritius) Ltd. et ors v The Republic of India. The judgment relates to sovereign immunity pursuant to the UK’s State Immunity Act 1978 (“SIA UK”) and the enforcement of arbitral awards made pursuant to a bilateral investment treaty (“BIT”). The specific question for the English High Court was whether or not India had submitted to the adjudicative jurisdiction of the English courts by its ratification of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1959) (“NY Convention”). In finding that India had not waived its sovereign immunity through “prior written agreement” only by ratifying the NY Convention, the English High Court has joined company with other American jurisprudence and has parted company with Canadian, Singaporean, and Dutch jurisprudence arising from the same factual background and underlying disputes.

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.

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

B.C. – Court finds pre-condition to competence-competence – #895

The competence-competence principle is well established in Canadian law. It requires that issues relating to an arbitrator’s jurisdiction are generally first to be determined by the arbitrator instead of the court. In ONE Lodging Holdings LLC v American Hotel Income Properties REIT (GP) Inc., 2024 BCSC 2179, the Chambers Judge identified what amounts to a pre-condition, or exception, to the application of the competence-competence principle beyond those previously recognized by the Supreme Court of Canada in cases such as Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 (“Dell”) and Uber Technologies Inc. v. Heller, 2020 SCC 16. Those recognized exceptions are: (1) where the jurisdictional issue is a pure question of law or a question of mixed fact and law requiring only a cursory review of the documentary record, or (2) where there is a “real prospect” that the arbitrator may not be able to resolve the jurisdictional challenge due to practical barriers. Here, the Chambers Judge found that the competence-competence principle also does not apply when there is a dispute as to the existence of an arbitration agreement, as opposed to a dispute about the validity or scope of an existing arbitration agreement.