Ontario Archives - Page 2 of 32 - Arbitration Matters

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.

March 7, 2025October 7, 2025

Ontario – More efficient expert determination process to proceed ahead of litigation – #899

The decision in CLEAResult Canada Inc. v. Santomero, 2024 ONSC 6054 reinforces the principle that courts will generally uphold private dispute resolution mechanisms unless there is prima facie evidence that the process is fundamentally flawed (see para. 67). Here, the court held that the more expeditious, efficient and simple process before an accounting expert (BDO Canada LLP) to determine the Reverse Earn-out Amount in an M&A dispute was to proceed in tandem with other litigation between the parties, and was not to be held up by that litigation.

March 7, 2025March 7, 2025

Ontario – Award set aside where one of three arbitrators biased – #898

Vento Motorcycles, Inc. v The United Mexican States, 2025 ONCA 82 is the second recent Ontario decision (after Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc., 2024 ONCA 839 on the issue of reasonable apprehension of bias of an arbitrator, which arbitration practitioners have been awaiting. In this decision, there was no challenge to the finding in the Court below that the conduct of one of the arbitrators on a panel of three met the test for reasonable apprehension of bias. The appellant argued that the judge below was wrong to exercise her discretion to not set aside the award. This Court allowed the appeal and set aside the award. It found that it was impossible to determine whether one arbitrator’s bias affected the outcome. Reasonable apprehension of bias on the part of the arbitrator is such a serious breach of procedural fairness that the award must be set aside, even if it requires a re-hearing of the arbitration.

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 7, 2025February 10, 2025

Ontario – Breach of arbitration clause gives rise to cause of action – #894

In Fowlie et al v Wrestling Canada Lutte et al, 2024 ONSC 7196 (“Fowlie”), the Court considered the appeal of a motion judge’s order declining to strike a breach of contract claim made by a sports dispute resolution expert (“Expert”) against Wresting Canada Lutte (“WCL”). The Expert claimed that WCL had breached their contract by failing to engage in a contractual dispute resolution process before WCL terminated the contract without cause. The dispute resolution clause in the parties’ contract included the option to refer disputes to arbitration. The Court granted the appeal and struck the Expert’s claim. The Court held that the dispute resolution clause only applies when a “dispute” arises. Because there was no dispute as between the Expert and WCL about the validly of the without-cause termination while the contract was in force, there was no “dispute” to which to apply the dispute resolution clause. This decision is surprising in view of the separability principle that arbitration agreements survive contract termination. Arbitration jurisprudence suggests that the arbitration agreement in the contract between WCL and the Expert should have been treated as an independent agreement that survived termination of the main contact.

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.

December 16, 2024December 13, 2024

Ontario – Order of competence-competence analysis on stay motion challenged – #880

In Lochan v Binance Holdings Limited, 2024 ONCA 784 (“Binance”), the Court considered the appeal of the Motion Judge’s finding that an arbitration clause in a crypto trading agreement was void because it was contrary to public policy and unconscionable. The arbitration clause was part of a standard form contract between the appellant and crypto users. It provided that the appellant could change any part of the arbitration agreement, including the forum and governing law, and that users agreed to any amendments. On appeal, the appellant argued that the Motion Judge had failed to first consider the competence-competence principle in his analysis. The Court dismissed the appeal, finding that the Motion Judge had followed the approach of the Supreme Court of Canada in Dell Computer Corp. v Union des consommateurs, 2007 SCC 34 (“Dell”) and Uber Technologies Inc. v Heller, 2020 SCC 16 (“Uber”) when he considered the competence-competence principle before he considered if an exception to that principle applied to allow the court to consider if the clause was unenforceable.

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.