Northwest Territories Archives - Arbitration Matters

March 11, 2026March 11, 2026

Northwest Territories – Peace River Analogized in Oppression-Driven Disclaimer of Arbitration – #938

In TSA CORPORATION et al v KPMG LLP, 2026 NWTSC 2, the Court approved a Receiver’s request to disclaim arbitration agreements between companies in receivership (the “LKDFN Companies”) and KPMG, which the LKDFN Companies’ former CEO had engaged to provide accounting services and tax advice. The Receiver had been appointed to facilitate the LKDFN Companies’ recovery from oppression at the hands of their former CEO. Relevant statutes, and the Receiver’s appointment order, authorized a broad range of potential remedies, expressly including the power to disclaim contracts with third parties. Reasoning by analogy to Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41, the Court approved the Receiver’s request because “not doing so would compromise the fair and orderly correction” of “a scenario of exploitation, unfairness, and the obliteration of autonomy.” The Receiver’s disclaimer rendered arbitration agreements between the LKDFN Companies and KPMG unenforceable under the Arbitration Act, SNWT 2022, c 14. As a result, the Court denied KPMG’s application to stay derivative actions brought against it.

The social context of this case was key. The LKDFN Companies’ former CEO had “knowingly breached his fiduciary duties to the LKDFN Companies, including failing to disclose his own interests, which were significant, and he caused them to enter into agreements, transactions, and governance structures which were unfair and prejudicial.” The LKDFN Companies had been organized to serve economic and other needs of the First Nation, infusing this case with the “special social context attendant to the exploitation of a vulnerable indigenous group.” This context situated the case in the process of truth and reconciliation with Canada’s First Nations, including the interpretive lens of federal and territorial legislation implementing the United Nations Declaration on the Rights of Indigenous Peoples.

January 27, 2021April 24, 2021

N.W.T. – Court applies Vavilov to commercial arbitration awards subject to statutory right of appeal – #419

In Northland Utilities (NWT) Limited v. Hay River (Town of), 2021 NWTCA 1, N.W.T.’s Court of Appeal held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65’s revised framework applies to commercial arbitration awards reviewed as a result of a statutory right of appeal. “It is difficult to follow the argument that the reliability of Canada as a forum for resolution of local and global business disputes, would be rendered less grounded in the rule of law in a rules-based system of law by employing an appellate review standard”. The Court distinguished appeal wording in the N.W.T.’s domestic arbitration legislation from the former B.C. domestic arbitration legislation considered in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] 2 SCR 633 and Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32 (CanLII), [2017] 1 SCR 688. Vavilov’s omission of any mention of commercial arbitration did not argue for or against its extension. “Silence cuts both ways”. The Court did not comment on whether Vavilov applied to awards arising from contracts which contained no right of appeal and where no statute provided such right. Note: the agreement to arbitrate in issue ought to qualify as a statutory arbitration and not a consensual arbitration as it was not negotiated but imposed under section 91(5) of the Cities, Towns and Villages Act, SNWT 2003, c 22, Sch B.

November 4, 2019January 3, 2021

N.W.T. – parties do not create standard form contract when their lawyers do not “reinvent the wheel” – #240

Mr. Justice Andrew M. Mahar in Northland Utilities (NWT) Ltd. v. Town of Hay River, 2019 NWTSC 31 remarked that parties do not hire lawyers to “reinvent the wheel” each time they engage in commercial activity and, in doing so, do not thereby make their contract a standard form contract. Despite omitting to characterize the issues as questions of law, mixed fact and law or fact and despite holding that the standard of review was reasonableness, Mahar J. did determine that the arbitrator’s analyses were not only reasonable but correct.

November 13, 2017January 3, 2021

[:en]Northwest Territories – Court of Appeal applies ‘pith and substance’ analysis to enforce original undertaking to arbitrate – #015[:]

[:en]The Northwest Territories’ Court of Appeal in Miller Sales et al v. Metso Minerals et al, 2017 NWTCA 3 granted an application to stay under section of NWT’s International Commercial Arbitration Act, RSNWT 1988, c I-6 (“ICAA”) . In doing so, it upheld the reasoning and result in the chambers judge’s decision, reported in Miller Sales & Engineering Inc. et al. v. Metso Minerals Industries Inc. et al., 2016 NWTSC 23, which looked past the terms of a settlement and assignment agreement and enforced the parties’ initial undertaking to arbitrate. Continue reading “[:en]Northwest Territories – Court of Appeal applies ‘pith and substance’ analysis to enforce original undertaking to arbitrate – #015[:]”