Manitoba Archives - Arbitration Matters

October 20, 2026October 20, 2026

Manitoba – Inconsistent, contradictory, and flawed arbitration agreements cannot be performed – #962

In Bains v Loader, 2026 MBCA 66, the Court found no palpable and overriding error in the lower court’s judgment that ICC arbitration agreements in two international commercial contracts were incapable of being performed because of poor drafting. However, the Court reversed the findings that two technical prerequisites of the Peace River Hydro v Petrowest Corp. stay test were not satisfied, and declined to endorse the findings that the agreements were null and void or inoperative, “or any suggestion … that exceptions, other than those set out in the ICAA, are relevant to the exception analysis in this case.”

October 11, 2024October 11, 2024

Manitoba – Court denies stay in favour of arbitration for several (suspect) reasons – #868

In Bains and 10031670 Manitoba Ltd. v. Tworek et al, 2024 MBKB 111, the Court dismissed a motion to stay two court proceedings in favour of arbitration. In doing so, the Court ran afoul of some settled principles in Canadian (and international) arbitration law. These include interpreting the scope of the arbitration agreements, the test for a stay of proceedings in favour of arbitration, the separability presumption and concerns over inefficiency and multiplicity of proceedings where the dispute concerns both signatories and non-signatories to the arbitration agreement.

February 16, 2024February 20, 2024

Manitoba – Court of Appeal quashes appeal of decision declaring clause invalid – #816

In Pokornik v. SkipTheDishes Restaurant Services Inc., 2024 MBCA 3, the Court dealt with a perennial issue—stays of arbitration in the class proceeding context. The decision has a few interesting takeaways, both arbitration-related and not, including one about the competence-competence principle. It also raises the thorny issue of when a stay motion decision may be appealed under section 7(6) of Manitoba’s domestic arbitration statute.

October 23, 2023October 30, 2023

Manitoba – Procedural choices made for efficiency bind losing parties – #783

With what the Respondent must hope is the final chapter of a long and expensive saga, in Christie Building Holding Company, Limited v Shelter Canadian Properties Limited, 2023 MBCA 76 (CanLII), the Court of Appeal confirmed parties must live with the consequences of their decisions on how to conduct the arbitration. The parties agreed to forego obtaining transcripts of the arbitration and the formalities of entering thousands of documents as exhibits (only five were formally marked as such). C lost the arbitration and clearly regretted its agreement to limit the evidentiary record. The nature of the “record” was at the heart of the Applicant C’s two trips to the Manitoba Queen’s Bench, one to the King’s Bench, and two to the Court of Appeal. C was unsuccessful at every turn. In the end, the Court of Appeal did not agree the lower court had mistakenly declined jurisdiction by rejecting C’s attempt to recreate the record by adducing affidavit evidence of what was formally before the arbitrator. In the circumstances, the Court held the “record” would consist of the two awards and accompanying reasons, the pleadings, and the five marked exhibits.

July 5, 2023June 29, 2023

Manitoba – Limited record magnified difficulty of appeal of award – #751

In Benkie v. Nichol, 2023 MBKB 82, the Court dismissed an appeal of an arbitral award rendered in a family law dispute. The appeal record contained significant “gaps,” because evidence that was received before the arbitrator, and was considered by her in arriving at her award, was not before the appeal court. This important evidence included a transcript of the cross-examinations of witnesses at the hearing. There was no recording made of the hearing, which was what the parties agreed to as the process. This lack of information was “highly consequential to the disposition of the appeal’. The Court did not accept the wife’s argument that the Arbitrator erred in making a finding that was not supported by the evidence because the record did not contain all the evidence. The issues this case raises is relevant to commercial arbitration

February 13, 2023February 10, 2023

Manitoba – Vavilov inapplicable to arbitration appeals – #709

In Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2022 MBKB 239, Christie Building Holding Company, Limited (“Christie”), applied for leave to appeal two arbitral awards under section 44 of the Manitoba Arbitration Act, CCSM c. A120. Christie asserted six separate grounds for leave to appeal, one of which consisted of four alleged errors of contractual interpretation. It also argued that a portion of the main award should be set aside because: the respondent did not comply with the Arbitration Agreement on issues of document production; that it was not given a fair opportunity to examine parties; and the arbitrator relied on case law not cited by the parties. Chief Justice Joyal dismissed all applications. In holding that none of Christie’s arguments for leave to appeal gave rise to a question of law of arguable merit, he considered the applicable standard of review. He found that “the standard of review on which the merits of this appeal would have to be judged, assuming leave was granted, is reasonableness. Until the Supreme Court of Canada has answered the question of what effect, if any, Vavilov has on Teal Cedar and Sattva, those authorities remain good law and are binding on this court” (paragraph 95). He also stated that if the applicable standard of review was, in fact, correctness, he would have still denied leave as the incomplete record from the arbitration compromised his ability to conduct a meaningful review, even for the narrow purpose of assessing leave. He held it would, therefore, be “unfair to grant leave and proceed with an appeal when a proper and meaningful review would ultimately be impossible” (paragraph 102). This case summary will focus on the analysis of the applicable standard of review.

October 11, 2022October 7, 2022

Manitoba – Arbitration Agreement Invalid due to Unconscionability and no Consideration – #669

In Pokornik v. SkipTheDishes Restaurant Services Inc., 2022 MBKB 178, Justice Chartier considered the principles arising from Uber Technologies Inc. v. Heller, 2020 SCC 16 (CanLII) (“Uber”) in a contract of adhesion between a restaurant delivery corporation, SkipTheDishes, and one of its individual couriers. Justice Chartier found that there was no arbitration agreement; SkipTheDishes asserted that the courier was bound to a new agreement with an arbitration agreement that only became effective after she sued. Had he found otherwise, Justice Chartier would have found the agreement to be invalid due to unconscionability and a lack of consideration. These findings were despite efforts by SkipTheDishes to address some of the concerns that animated the Supreme Court of Canada’s decision in Uber.

September 27, 2021May 4, 2022

Manitoba – Broad arbitration clause in one agreement required stay of action based on related employment contract – #535

Relying on the growing body of arbitration-friendly jurisprudence from the Supreme Court of Canada and provincial appellate courts, the Manitoba Queens Bench in Wardrop v. Ericsson Canada Inc., 2021 MBQB 183 re-affirmed the importance of the court’s adherence to the stay provisions in s. 7 of The Arbitration Act, C.C.S.M. c. A120 (the “Act”). Justice Rempel held that an action for wrongful dismissal must be stayed. The key issue concerned the plaintiff employee’s entitlement in the severance period to bonuses made available pursuant to an agreement which contained a broad clause in favour of arbitration. That agreement was separate from the written employment agreement which the plaintiff employee alleged was breached and which did not contain an arbitration clause. However, the damages sought by the plaintiff related to the bonuses. Justice Rempel granted the defendant employer’s motion for a stay in light of the broad arbitration clause in one of the agreements. Further, in finding that there was no basis to refuse the stay under s. 7(2) of the Act, Justice Rempel narrowly interpreted the provision permitting a refusal of the stay where the matter was a proper one for summary judgment. The plaintiff employee did not satisfy the court that this exception, or any of the other bases for refusing a stay, was applicable.

June 2, 2021June 2, 2021

Manitoba – ‘reckless’ and ’unfounded’ allegations against S counsel regarding arbitration record justify personal costs order against C counsel – #486

In Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2021 MBQB 101, Mr. Chief Justice Glenn D. Joyal dismissed attempts to reopen an earlier hearing in which he determined what constituted the record from the arbitration for the purpose of leave to appeal applications and any eventual appeal. To do so, Joyal C.J. reviewed the evolution of the procedural decisions contemplated in the arbitration, offering insights into how to document such decisions and whether excessive flexibility actually generates uncertainty even for those involved in the arbitration. In dismissing attempts by C’s counsel to ground C’s relief on allegations of fraud or facts arising or discovered after the initial court order, Joyal C.J. characterized the allegations made by C’s counsel against S’s counsel as “reckless and unfounded”, “an abuse of this Court’s process” and “unprofessional and inappropriate”. Such allegations made personally against S’s counsel justified a reasonable solicitor-costs order against C’s counsel personally.

May 15, 2021May 15, 2021

Manitoba – no meeting of minds to arbitrate due to unsuccessful attempts to access online contractual schedules – #477

In Razar Contracting Services Ltd v. Evoqua Water, 2021 MBQB 69, Mr. Justice David Kroft dismissed an application to stay in favour of arbitration, holding that (i) a bidder’s inability to access an online link to other documents containing an agreement to arbitrate and (ii) absent evidence that such agreement had been brought to the bidder’s attention demonstrated “no meeting of the minds in respective of the agreement to arbitrate”. Kroft J. held he had jurisdiction to determine whether the facts established an agreement to arbitrate within the meaning of article 7(2) of the UNCITRAL Model Law on International Commercial Arbitration (1985). He concluded that “the evidence, viewed objectively, does not establish, on a balance of probabilities, the three elements required for a binding contract: intention to contract; settlement of essential terms; and, sufficiently certain terms”.