Arbitration.

What Is Arbitration?

Arbitration is the private adjudication of a dispute by one or more decision-makers the parties have chosen, under a procedure the parties have largely chosen, ending in an award that binds them and can be enforced through the courts as if it were a judgment. The Supreme Court of Canada has identified four indicia of a true arbitration, which are tools for identifying the function the parties assigned to the third party rather than a closed testSport Maska Inc. v. Zittrer, [1988] 1 S.C.R. 564. A formulated dispute, remitted to a person who exercises a judicial function, with an opportunity to present evidence and submissions, and an agreement to accept the result. The label the parties use is a factor, and it is not conclusive.. There must be a dispute that has been formulated in some way. It must have been remitted to a person who is asked to exercise a judicial function. The parties must, where appropriate, have had an opportunity to present evidence and submissions. And they must have agreed to be bound by the result. A mediator decides nothing and so is not an arbitrator. An accountant retained to fix a closing balance sheet, or an engineer asked to certify a quantity, is usually an expert or a valuator rather than an arbitrator, and the arbitration statutes do not apply to what they do, whatever the contract calls them.

Parties choose arbitration for reasons that are easy to list and harder to secure. They can pick a decision-maker who knows the industry. The hearing is private. The procedure can be built for the dispute instead of borrowed from the Rules of Civil Procedure. The award is final in a way a trial judgment is not, and an award made in Toronto can be enforced in New York or Singapore under the New York Convention with less friction than a judgment. The costs are real too. The parties pay the tribunal. There is no third-party joinder without consent, and document production is narrower than discovery. The award is very nearly immune from review on the merits, which suits the winner and nobody else. A party who wants a second look at the merits, or who expects to need a Mareva injunction against a stranger to the contract, should think carefully before agreeing to arbitrate.

The courts are meant to support the process and supervise it, and nothing more. Section 6 of the Arbitration Act, 1991S.O. 1991, c. 17. Governs arbitrations conducted under an arbitration agreement that are not international commercial arbitrations, including domestic commercial and family arbitrations and any other arbitration under an agreement. Section 3 lists the provisions the parties cannot vary, among them equal and fair treatment (s. 19), setting aside (s. 46), and enforcement (s. 50). says that no court shall intervene in matters governed by the Act except to assist the conduct of arbitrations, to ensure that they are conducted in accordance with the arbitration agreement, to prevent unequal or unfair treatment of the parties, and to enforce awards. The Supreme Court has described that as a "hands off" approachTELUS Communications Inc. v. Wellman, 2019 SCC 19, at para. 56. Moldaver J. for the majority: provisions such as s. 6 signal that courts are generally to take a hands off approach to matters governed by the Act., and the Model Law is blunter still, providing in article 5 that no court shall intervene except where the Model Law itself so provides. Litigants who go to court hoping for a friendlier forum than the one they agreed to generally get sent back.

The Two Ontario Statutes

Ontario has two arbitration statutes and they do not overlap. The Arbitration Act, 1991 governs domestic arbitrations. The International Commercial Arbitration Act, 2017S.O. 2017, c. 2, Sched. 5. Schedule 1 is the New York Convention; Schedule 2 is the UNCITRAL Model Law as amended in 2006. Ontario is one of the few Canadian jurisdictions to have adopted the 2006 text; most of the country still works from the 1985 version. governs arbitrations that are both international and commercial, and it does so by scheduling two instruments, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the UNCITRAL Model Law on International Commercial Arbitration in its 2006 form. Section 2 of the domestic Act excludes any arbitration the 2017 Act governs, so a tribunal is always working under one statute or the other, never both.

An arbitration is international under article 1(3) of the Model Law where the parties had their places of business in different countries when they made the agreement, where the seat, the place of performance of a substantial part of the obligations, or the place with which the subject matter is most closely connected lies outside the country in which both parties are based, or where the parties have expressly agreed that the subject matter relates to more than one country. "Commercial" is read widely, in keeping with the UNCITRAL commentary that Ontario courts may consult under s. 6(3) of the 2017 Act, and a shareholders' agreement dispute or a supply contract will qualify. Employment disputes will not. In Uber Technologies Inc. v. Heller, the Supreme Court characterized a dispute between a food delivery driver and the platform, on the pleadings, as an employment dispute, which is why the case proceeded under the domestic Act even though the clause pointed to an arbitration in the Netherlands.

The choice of statute matters. The two Acts take different approaches to the stay of court proceedings, to appeals, to the time allowed for challenging an award, and to the period within which an award can be enforced. The table below sets out the principal differences.

Consent, Scope & Separability

Section 1 of the domestic Act defines an arbitration agreement as an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them. It may stand alone or form part of another agreement (s. 5(1)), and a further agreement made in connection with the arbitration is deemed to form part of it (s. 5(2)). Writing is not required under the domestic Act (s. 5(3)), though anyone relying on an oral agreement to arbitrate should expect to lose the argument about what it said. The Model Law does require a record, but in its 2006 form the requirement is satisfied by content recorded in any form. Electronic communications will do. So will an exchange of pleadings in which one side alleges the agreement and the other does not deny it, or a written contract that refers to a document containing an arbitration clause, provided the reference is enough to make the clause part of the contract.

The clause must actually require arbitration. A clause under which disputes "may" be arbitrated on the mutual written consent of the parties is an agreement to agree, and an Ontario court has declined to treat it as an arbitration agreement at allHalton Healthcare Services Corp. v. Plenary Health Milton LP, 2025 ONSC 2223. "May" language conditioned on mutual consent was consensual and not mandatory; the moving party had in any event delayed unduly.. A contract that grants the Superior Court "exclusive jurisdiction" in one clause and provides for arbitration in another invites a finding that there was no clear intention to arbitrate, with the ambiguity construed against the drafter. Meeting minutes recording an agreement in principle to arbitrate, arbitrator still to be chosen, are not an agreement complete in itself.

Scope is read generously. Ontario courts give arbitration clauses a large and liberal interpretation and look to the pith and substance of the dispute, and a party cannot escape the clause by pleading a contract claim as a tort. In Haas v. Gunasekaram2016 ONCA 744. A clause covering disputes "arising out of or in connection with" a shareholders' agreement captured fraudulent misrepresentation claims pleaded to avoid it. The five questions at para. 17 were the Ontario checklist until Husky Food held that Peace River had superseded them; Superior Court judges still cite both, and the questions overlap., a shareholder who sued his co-shareholders for fraudulent misrepresentation was held to the arbitration clause in the shareholders' agreement because the claims, whatever their label, arose out of and in connection with that agreement. Words such as "any", "all", "arising out of", "in connection with", and "relating to" signal breadth, and clauses using them have been held to capture tort claims as well as claims under related agreements. A clause confined to disputes about the "interpretation" of the contract is narrower, and parties who want a narrow clause should say so in terms.

The arbitration clause is severable from the contract that contains it. Section 17(2) of the domestic Act treats the clause, for the purpose of a ruling on jurisdiction, as an independent agreement that may survive even if the main agreement is found to be invalid, and article 16(1) of the Model Law provides that a finding that the contract is null and void does not by itself invalidate the arbitration clause. The practical consequence is that an attack on the contract is not an attack on the clause. A party who says the contract was induced by fraud, or was rescinded under the Arthur Wishart Act (Franchise Disclosure), 2000, or was repudiated, still has to arbitrate that questionMDG Kingston Inc. v. MDG Computers Canada Inc., 2008 ONCA 656. A franchisee's statutory rescission claim did not void the arbitration clause; the clause survives unless the contract never existed or was void from the outset.. The exception is a contract that never came into existence at all, or that was void from the outset, because a clause cannot survive a contract that was never agreed to.

Consent also fixes who is bound. A court cannot compel a person who is not a party to the arbitration agreement to arbitrateNovatrax International Inc. v. Hägele Landtechnik GmbH, 2016 ONCA 771, at para. 24. A court lacks jurisdiction to compel non-parties to submit their claims to arbitration (para. 24), though the whole action was stayed because the claims were factually intertwined (para. 25). Claims against non-signatories that stand or fall with the arbitrable claims have been stayed under s. 106 of the Courts of Justice Act in other cases., and an arbitrator cannot make an award against one. Assignees, trustees in bankruptcy, receivers, and affiliates who step into a signatory's shoes can be bound, and a defendant sued on a contract may invoke its arbitration clause even while denying that it is a party. Where related claims against non-signatories cannot be arbitrated, the court stays the arbitrable claims and may stay the rest as well where they stand or fall with the arbitrable ones, so that a plaintiff cannot defeat the clause simply by adding a defendant.

What Can Be Arbitrated

Almost any commercial dispute can be arbitrated. The presumption runs in favour of arbitrability, and a legislature that wants to keep a category of dispute out of arbitration must say so explicitlySeidel v. TELUS Communications Inc., 2011 SCC 15, at para. 2. Absent legislative language to the contrary, courts enforce arbitration clauses even in contracts of adhesion; a legislature wishing to exclude arbitration must do so explicitly. In Seidel itself the public-interest consumer claim under s. 172 of the B.C. statute stayed in court while the private claims went to arbitration.. Ontario courts have held that oppression claims under the Business Corporations Act are arbitrable on the weight of authority, though one recent decision required clear language in the clause before the court's oppression jurisdiction would be treated as oustedKaterinaville Developments Ltd. v. Garthwood Homes Ltd., 2023 ONSC 6267, at para. 35. Oppression is a statutory claim conferring jurisdiction on the court, ousted only by clear language; the oppression claim proceeded in court while the rest of the action was stayed.. Franchise claims under the Arthur Wishart Act, securities claims (at least before a domestic tribunal applying Canadian law), construction claims alongside lien litigation, solicitor's fee disputes, and copyright disputes have all been sent to arbitration. Insolvency does not by itself make a clause inoperative, though the court supervising a receivership can decline to enforce one where a stay would compromise the integrity of the insolvency proceeding.

The carve-outs are statutory and specific. Ontario's consumer protection legislation (the Consumer Protection Act, 2002, and the Consumer Protection Act, 2023 once it is in force) provides that a term requiring a consumer to arbitrate is invalid insofar as it prevents the consumer from suing in the Superior Court or joining a class proceeding, unless the consumer agrees to arbitrate after the dispute arises. That override is narrower than it sounds. It protects rights given under the consumer statute, and a business customer under the same standard form contract gets no help from it. In TELUS Communications Inc. v. Wellman, the Supreme Court sent the business customers in a class action to arbitration while the consumers stayed in court, holding that s. 7(5) of the domestic Act gives no discretion to refuse a stay of arbitrable claims simply because related claims will proceed elsewhere. Payday loan agreements are dealt with by their own statute. Family arbitration is permitted but regulated by the Family Law Act and its regulation. Criminal law is not arbitrable at all.

Employment sits at the edge. In Uber Technologies Inc. v. Heller2020 SCC 16. A clause requiring an Ontario driver to arbitrate in the Netherlands under Dutch law, with fees of roughly US$14,500 to start, was unconscionable. The majority also recognized a third exception to the rule that jurisdiction is decided first by the arbitrator, for cases where there is a real prospect that the challenge would otherwise never be heard., the driver's contract required ICC arbitration in Amsterdam under Dutch law, with filing and administrative fees of roughly US$14,500 before a word of the dispute was heard, against an annual income in the tens of thousands. The Supreme Court held the clause unconscionable, on the basis of an inequality of bargaining power and a resulting improvident bargain, and declined to enforce it. Employment disputes remain arbitrable after Uber. What the decision struck down was a clause that put arbitration out of practical reach, and the same reasoning applies whatever the subject matter. Ontario's Court of Appeal applied the same reasoning to a cryptocurrency platform's terms of use in Lochan v. Binance Holdings Ltd.2024 ONCA 784. A click-through clause requiring retail crypto investors to arbitrate in Hong Kong, at a cost of over $36,000 against typical claims of about $5,000, was void for public policy and unconscionable. Competence-competence is not lightly displaced, but it was displaced here., refusing to stay a securities class action where the clause required Hong Kong arbitration at a cost that dwarfed any individual investor's claim.

Drafting the Clause

The clause is written at the one moment when the parties agree on something, which is also the moment when nobody reads it. A workable clause needs mandatory language ("shall be finally resolved by arbitration") and a scope wide enough to catch the tort claims that will be pleaded to avoid it. It needs a seat. The seat is the legal home of the arbitration. It determines which court supervises the process and which court can set the award aside, and it is a different thing from the place where hearings are held, since a tribunal seated in Toronto can sit in Calgary or on a video platform without changing the seat. The clause should also choose the rules, whether institutional (the ADR Institute of Canada, the ICC, the ICDR, and others) or ad hoc under the statute, the number of arbitrators and how they will be appointed, the language, and the governing law of the contract.

Three terms are missed more often than any other. Neither Ontario statute imposes a duty of confidentiality. The hearing is private, but a party should not assume that the documents or the award are protected unless the clause, the chosen rules, or a procedural order says so. Appeal rights are governed by s. 45 of the domestic Act, and the default is an appeal on a question of law with leave. Parties who want no appeal must say so, and parties who want an appeal on questions of fact or mixed fact and law must say that expressly, because a clause providing simply for an appeal under the Act has been read, between sophisticated parties, as the default and nothing more6524443 Canada Inc. v. Toronto (City), 2017 ONCA 486. Where sophisticated parties with senior counsel agreed to an appeal under the Act without specifying the questions, they got the s. 45(1) default of an appeal on law with leave and nothing broader.. And interim relief from the courts should be preserved in terms, so that neither side can argue that a motion for an injunction is a breach of the agreement to arbitrate.

Multi-tier clauses require negotiation and mediation before arbitration can begin. Whether an earlier step is a condition precedent to the later one turns entirely on the wording. The Court of Appeal recently reversed a refusal to appoint an arbitrator under a standard form architect's agreement, holding that a thirty-day negotiation period was a minimum window rather than a deadline for demanding mediationJ.P. Thomson Architects Ltd. v. Greater Essex County District School Board, 2025 ONCA 378. The thirty-day period was a minimum negotiation window; no deadline governed the notice to arbitrate, and the arbitrator should have been appointed., while "if-then" wording in another contract did require an attempt at resolution before arbitration could be commenced. One consequence worth knowing is that the limitation period for the claim does not start to run until the right to arbitrate has crystallized under the clause. Med-arb, in which the same neutral mediates and then arbitrates, is permitted if the parties waive the statutory bar on an arbitrator acting as mediator, and the neutral must make a real attempt at mediation first.

Then there are the clauses that fail. A clause naming an institution that has since dissolved will be read, where the words allow it, as a referral to the successor body. A clause providing for two seats, or an arbitration clause sitting beside an exclusive jurisdiction clause in favour of a foreign court, risks being held incapable of being performedRH20 North America Inc. v. Bergmann, 2023 ONSC 2378, aff'd 2024 ONCA 445. An English arbitration clause paired with an exclusive German court clause could not both be complied with. Separately, a party that joined a motion to strike had asked the court for substantive relief and thereby waived its right to arbitrate.. A clause that is silent on everything else still works. The statute supplies a sole arbitrator (s. 9) and a court appointment if the parties cannot agree on one (s. 10), and s. 45 supplies the appeal. Every default the statute supplies is a decision the drafter declined to make.

Commencing & Constituting the Tribunal

A domestic arbitration is commenced in any way the law recognizes, and in practice by a notice demanding arbitration or a notice to appoint an arbitrator, or, where the agreement gives a third party the power of appointment, a notice to that person (s. 23). A letter proposing arbitration is not a notice. The limitation period applies to an arbitration as if it were an action (s. 52(1)), so the notice must be served within the two years the Limitations Act, 2002 allows, and a contractual deadline for submitting a claim will be enforced as written even where the consequence is that the claim is lost. Under the ICC Rules the arbitration begins on the date the Secretariat receives the Request for Arbitration.

The default tribunal is a single arbitrator under the domestic Act (s. 9) and three under the Model Law (art. 10). Where the agreement sets an appointment procedure, it governs. Where it does not, or where the procedure breaks down, a party may apply to the Superior Court to make the appointment (s. 10; art. 11), including where a person with the power to appoint has failed to act after seven days' notice, and a court-appointed arbitrator has the same authority as one the parties chose. Consolidation with another arbitration requires the application of all the parties (s. 8(4)). Three-member tribunals roughly triple the tribunal's fees and are harder to schedule. They are worth it in a large dispute where each side wants a hand in the composition of the panel, and rarely otherwise.

Every arbitrator must be independent of the parties and impartial as between them, and must disclose any circumstance that might give rise to a reasonable apprehension of bias (s. 11; art. 12). The presumption of impartiality is strong, and the Court of Appeal has held that an arbitrator who has been appointed before by the same counsel in unrelated matters has no presumptive duty to disclose itDhaliwal v. Richter International Ltd., 2025 ONCA 522. Counsel appearing before the same arbitrator in two unrelated arbitrations is on none of the IBA lists; lawyers commonly select arbitrators they have worked with before, and absent overlapping parties or facts no disclosure was required.. A challenge under the domestic Act must be sent to the tribunal within fifteen days of learning the grounds, the tribunal rules on it, and either party then has ten days from the tribunal's decision to take the issue to court (s. 13). The court may also remove an arbitrator who becomes unable to act, commits a corrupt or fraudulent act, delays unduly, or conducts the arbitration unfairly (s. 15). A party-appointed arbitrator owes exactly the same duty of impartiality as the chair, a point the Court of Appeal made emphatically when it set aside an international award because one member of a three-person tribunal had been offered an undisclosed professional appointment by the party that named him while the case was pending.

Jurisdiction & Competence-Competence

The tribunal rules on its own jurisdiction, including objections to the existence or validity of the arbitration agreement and to its scope (s. 17(1); art. 16(1)). That principle, competence-competence, is a rule about who decides first, and it leaves the last word to the courtRussian Federation v. Luxtona Ltd., 2023 ONCA 393, at paras. 34 and 40. Competence-competence is "a rule of chronological priority"; a set-aside application for want of jurisdiction is a proceeding de novo rather than a review of the tribunal's decision.. A jurisdictional objection must be raised no later than the beginning of the hearing or the party's first written statement on the dispute (s. 17(3)), and an objection that the tribunal is exceeding its authority must be made as soon as the matter arises (s. 17(5)). A party who stays silent and takes its chances on the merits will generally be held to have waived the objection, and s. 46(3) bars a later set-aside application on that ground.

The tribunal may decide the objection as a preliminary question or leave it to the award (s. 17(7)). If it rules as a preliminary question, either party has thirty days to apply to the Superior Court to decide the matter (s. 17(8)). The court decides the question fresh, without deferring to the tribunal's reasoning, and there is no appeal from what it decides (s. 17(9)). The arbitration may continue in the meantime (s. 17(10)). The Model Law works the same way, with a thirty-day window under article 16(3) and no appeal from the court's decision by virtue of s. 11 of the 2017 Act.

The rule from Dell has two exceptions and, since Uber, a third. A court may decide the jurisdictional challenge itself where it turns solely on a question of law, or on a question of mixed fact and law that requires only a superficial review of the documentary record, provided the challenge is not a delaying tactic. The third exception applies where there is a real prospect that, if the matter is sent to arbitration, the challenge will never be heard at all, because the arbitration is too expensive or too distant to be started. The inquiry is not a mini-trial. One affidavit is usually enough, and courts have been reluctant to find commercial arbitration inaccessible to commercial parties.

Stays of Court Proceedings

When a party to an arbitration agreement sues instead, the other party moves to stay the action. Under s. 7(1) of the domestic Act the court "shall" stay the proceeding on the motion of another party to the agreement. Section 7(2) lists five grounds on which the court may refuse.

1. Legal incapacity. A party entered into the arbitration agreement while under a legal incapacity.
2. Invalid agreement. The arbitration agreement is invalid, which the courts read as manifestly or incontestably invalid, since anything less goes to the arbitrator first.
3. Non-arbitrable subject matter. The subject matter of the dispute is not capable of being the subject of arbitration under Ontario law.
4. Undue delay. The motion was brought with undue delay, which is analyzed through waiver and attornment. Pleading a defence is not enough on its own. Undue delay is found where a party has advanced the action for months before asking for a stay.
5. Default or summary judgment. The matter is a proper one for default or summary judgment. Some courts ask the Hryniak question, whether there is a genuine issue requiring a trial; others confine the exception to the simplest and clearest of cases.

The stay can be partial. Where the agreement deals with only some of the matters in the action and it is reasonable to separate them, the court stays the arbitrable matters and lets the rest continue (s. 7(5)). What the court cannot do, after Wellman, is refuse a stay of arbitrable claims because it would be more convenient to hear everything together. Section 7(6) provides that there is no appeal from the court's decision under s. 7, though the Court of Appeal has held that a decision that there is no arbitration agreement at all, or a refusal to stay that s. 7 did not authorize, falls outside the section and can be appealedToronto Standard Condominium Corp. No. 1628 v. Toronto Standard Condominium Corp. No. 1636, 2020 ONCA 612. What matters for s. 7(6) is the statutory basis of the decision, whatever section the notice of motion cited; a refusal to stay that s. 7(5) did not authorize was appealable..

The Supreme Court restated the framework in Peace River Hydro Partners v. Petrowest Corp.2022 SCC 41. Two-part framework: the applicant shows the technical prerequisites for a stay on an "arguable case" standard; the party resisting must then prove, on a balance of probabilities, a clear case for a statutory exception. A receiver could not disclaim the clause merely by suing, but the inexpediency of multiple overlapping arbitrations made the agreements inoperative on the facts., and the party seeking the stay must first show, on an arguable case standard, that an arbitration agreement exists, that the proceeding was commenced by a party to it, and that the dispute falls within it. Peace River adds a fourth prerequisite, that the applicant moved before taking a step in the action, which comes from the British Columbia statute; in Ontario timing is usually dealt with under the undue delay exception, although some judges now treat it as a prerequisite. Once the prerequisites are met, the stay is mandatory unless the party resisting proves a clear case for one of the statutory exceptions. Ontario's Court of Appeal has said, in an international case, that this framework superseded the five questions in HaasHusky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Ltd., 2023 ONCA 260. Peace River superseded Haas; the applicant's burden is an arguable case and the resisting party's is a balance of probabilities. A stay order is final for appeal purposes., though the questions overlap almost entirely and Superior Court judges continue to cite both.

The international provisions are worded differently and applied the same way. Article 8 of the Model Law and article II(3) of the Convention require the court to refer the parties to arbitration unless the agreement is "null and void, inoperative or incapable of being performed", and the request must be made no later than the party's first statement on the substance of the dispute. A defence that pleads want of jurisdiction preserves the objection. A motion to strike the claim on its merits waives it. Peace River explained the three phrases. An agreement is void where it is intrinsically defective through fraud, duress, or unconscionability, which is rare. It is inoperative where it has ceased to have effect through frustration, discharge, waiver, or a later agreement. It is incapable of being performed where the arbitral process cannot be set in motion at all, as where the named arbitrator is unavailable and no substitute can be found. Inconvenience, multiple parties, intertwined non-arbitrable issues, added cost, and delay will not, standing alone, do the job.

Procedure, Evidence & Interim Measures

Each statute has a fairness rule the parties cannot contract out of. The parties must be treated equally and fairly, and each must be given an opportunity to present a case and to respond to the other side's (s. 19; art. 18). Beyond that, the tribunal determines the procedure (s. 20; art. 19), subject to whatever the parties have agreed. In practice the shape of the case is set at the first procedural conference and recorded in a procedural order that fixes the pleadings, the document production process, the witness statements, the expert evidence, and the hearing dates. Document production in commercial arbitration usually runs through a Redfern schedule, in which each side lists the categories of documents it wants and the other side objects or agrees. The tribunal then rules on the disputed requests in a single order. The IBA Rules on the Taking of Evidence are often adopted as guidance. Witness statements stand as evidence in chief, and the hearing time is divided between the parties.

The strict rules of evidence do not apply. Sections 14, 15 and 16 of the Statutory Powers Procedure Act apply with necessary modifications (s. 21), so hearsay is admissible and goes to weight. The tribunal may decide on documents alone but must hold a hearing if a party asks for one (s. 26). A tribunal-issued notice to a witness has the same effect as a summons in a court proceeding (s. 29), though the power is limited to attendance at the hearing and does not extend to third-party discovery, for which a court application is needed. No one can be compelled to produce a document, or to give evidence, that could not be compelled at a trial of the same issues (s. 30). The tribunal may appoint its own expert at the parties' shared cost (s. 28). Deliberations are secret, and an arbitrator cannot be compelled to testify about them, even on an enforcement application.

Interim measures come from two sources. The tribunal may order the detention, preservation, and inspection of property and documents (s. 18) and may grant injunctions and specific performance between the parties (s. 31; art. 17). It cannot bind anyone else. A Mareva injunction against a bank and a Norwich order against an internet provider are court remedies, as is the appointment of a receiver, and s. 8(1) of the Act gives the court the same powers over interim injunctions, the preservation of property, and the appointment of receivers in an arbitration as in an action. Under the Model Law, article 9 confirms that asking a court for interim relief is compatible with the agreement to arbitrate, article 17J gives the court the same power to grant it as in a court action, whatever the seat, and the court may enforce measures the tribunal itself has granted (arts. 17H and 17I). An Ontario court has granted an urgent injunction before the tribunal was even constitutedNorthStar Earth & Space Inc. v. Spire Global Subsidiary, Inc., 2024 ONSC 5060. An urgent injunction issued in aid of an arbitration before the tribunal was appointed, applying the "reasonable possibility" standard in art. 17A instead of a strong prima facie case, a choice other judges have not followed (Cash Cloud Inc. v. BitAccess Inc., 2022 ONSC 5622).. Where the parties have chosen institutional rules, an emergency arbitrator may be available for relief that cannot wait, and a party that bypasses that procedure and comes straight to court can expect the omission to be weighed against it.

The Award, Costs & Interest

An award must be made in writing and must state the reasons on which it is based, unless it is made on consent (s. 38) or, under the Model Law, the parties have agreed to dispense with reasons (art. 31). It states the date and the place where it was made, and under the Model Law it is deemed to have been made at the seat, which fixes the supervising court. Where the tribunal has three members the majority decides, and if there is no majority the chair's decision governs (s. 34). A tribunal may make interim and partial awards, and more than one final award, on different parts of the dispute. Procedural rulings are not awards, so an order for security for costs, an adjournment, or a scheduling ruling cannot be appealed or set asideInforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642. A security-for-costs ruling was not an "award"; there are no appeals from procedural or interlocutory orders, and s. 17 concerns jurisdiction over the substance of the case., although the line is not always easy to draw, and one court has held that reading an agreement to allow appeals from such rulings would be commercially unreasonable (Converaidem Inc. v. Mulcahy, 2020 ONSC 6747).

Once the final award is delivered, the tribunal is functus officio, subject to a short tail. Within thirty days it may correct typographical and calculation errors, and it may amend the award to correct an injustice caused by its own oversight (s. 44). A party may within thirty days ask the tribunal to explain any part of the award, and if the tribunal does not answer within fifteen days the court may order it to (s. 40). The Model Law allows correction and, if the parties agree, interpretation within thirty days, and an additional award on claims the tribunal omitted, requested within thirty days and made within sixty (art. 33). The award binds the parties (s. 37), and the doctrines of res judicata and abuse of process apply to it in later proceedings.

Costs are in the tribunal's discretion unless the parties agree otherwise (s. 54). The costs of an arbitration include the parties' legal fees, the fees and expenses of the tribunal, and the other expenses of the proceeding. The tribunal is not bound by the court's scale. Full indemnity has been upheld without a finding of misconduct where the arbitrator gave reasons and acted judicially, though other decisions require the higher scale to be justified by the losing party's conduct. Where a party has refused an offer to settle that turns out to be at least as favourable as the award, the tribunal may take that into account in awarding costs for the period after the offer (s. 54(5)). The prejudgment and postjudgment interest provisions of the Courts of Justice Act apply to arbitrations (s. 57), and under the ICC Rules the tribunal fixes costs at the end with regard to how each party conducted itself.

International Arbitration & the ICC

The seat does the work in international arbitration. If the seat is Ontario, the Superior Court supervises the process under the Model Law and is the only court that can set the award aside under article 34. If the seat is abroad, Ontario courts see the case only when a party moves to stay an Ontario action under article 8 or applies for interim measures under article 17J, and again when the award comes to be recognized and enforced under articles 35 and 36. The seat is fixed by the agreement or, failing that, by the tribunal (art. 20), and the tribunal may meet anywhere it considers appropriate without changing it. Ontario courts have said that they must limit themselves in the strictest terms to intervening only rarely in the decisions of international tribunalsUnited Mexican States v. Cargill, Inc., 2011 ONCA 622, at para. 46. Courts intervene only in rare circumstances where there is a true question of jurisdiction. On that question they must be correct, and they must not stray into the merits., and the uniformity principle in article 2A makes decisions from other Model Law jurisdictions strongly persuasive here.

The Model Law process runs much as a domestic arbitration does, with different section numbers. There are three arbitrators by default, and the court steps in after thirty days if a party will not appoint (art. 11). A challenge to an arbitrator goes to the tribunal within fifteen days, with thirty days to take a rejection to court (art. 13). A plea that the tribunal lacks jurisdiction must be raised no later than the statement of defence (art. 16). The parties are entitled to equal treatment and a full opportunity to present their case (art. 18), in the language they agreed or the tribunal fixes (art. 22), under the substantive law they chose (art. 28). The award is reasoned, signed, and dated (art. 31). It may be corrected or supplemented under article 33 and can be challenged only under article 34.

The ICC is among the institutions most often named in cross-border contracts, and its Rules of Arbitration illustrate how an administered case runs. The claimant files a Request for Arbitration with the ICC Secretariat, and the case is commenced on the day the Request is received. The respondent has thirty days to file an Answer and any counterclaims. The ICC's International Court of Arbitration, which is an administrative body despite its name, confirms or appoints the arbitrators, with a sole arbitrator as the default unless the dispute warrants three, and fixes an advance on costs that the parties pay in equal shares; a claim for which the advance goes unpaid is deemed withdrawn. Within thirty days of receiving the file, a period the Court can extend, the tribunal draws up Terms of Reference that fix the parties, the claims, the issues, the seat, and the procedural rules, after which no new claims can be added without leave. A case management conference sets the timetable. An emergency arbitrator is available before the file is transmitted to the tribunal, for relief that cannot wait. The award is due within six months of the Terms of Reference, a deadline the Court routinely extends, and before it is issued the Court scrutinizes the draft as to form, which is one reason ICC awards travel well under the New York Convention. The ICC's fee scales are public, and its costs are a function of the amount in dispute.

An award is presumptively immune from judicial review. There is no inherent right to appeal an arbitrator's decision; any such right comes from the statute or from the agreementHighbury Estates Inc. v. Bre-Ex Ltd., 2015 ONSC 4966, at para. 41. There is no inherent right of appeal; any right must come from the Act or from the arbitration agreement., and judicial review under the Judicial Review Procedure Act is not available for a private commercial award. What remains are three distinct procedures, summarized below, each aimed at a different target and run to a different deadline.

Appeals

Under s. 45(1) of the domestic Act, if the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the Superior Court on a question of law with leave, and the court grants leave only if the importance to the parties of the matters at stake justifies an appeal and the determination of the question will significantly affect their rights. The agreement can widen the door, by providing for appeals on questions of law without leave (s. 45(2)) or on questions of fact and mixed fact and law (s. 45(3)), or close it altogether. Section 3 lets the parties contract out of s. 45 entirely, and "there shall be no appeal" does that. So does adopting institutional rules that exclude appeals. The Court of Appeal has said there is more than one way to say that appeals are precludedBaffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245, at para. 38. Adopting rules that make the award "final and binding" excluded the leave application; "there can be more than one way to say appeals are precluded"., though whether the bare phrase "final and binding" is enough remains contested at first instance.

The hard part is finding a question of law. Since Sattva Capital Corp. v. Creston Moly Corp.2014 SCC 53. Contractual interpretation is a question of mixed fact and law. Extricable questions of law, such as applying the wrong principle or ignoring a required element of a test, will be rare, and the standard of review on a commercial arbitration appeal is ordinarily reasonableness., contractual interpretation has been a question of mixed fact and law, and most arbitration awards are about contracts. An extricable question of law arises where the arbitrator applied the wrong legal principle, failed to consider a required element of a test, or ignored a relevant factor, and the Supreme Court has warned that such questions will be rare because counsel's incentive to dress up a mixed question as a legal one is obvious. Ontario's Court of Appeal has repeated the warningTall Ships Development Inc. v. Brockville (City), 2022 ONCA 861. Extrication of legal questions from contractual interpretation should be rare; s. 46 is not an alternate appeal route, and an award is read as a whole., and an appeal that was allowed below on a supposedly extricable question about whether claims had been made "in writing" was reversed because the question was, by its nature, one of mixed fact and law.

The standard of review on the appeal is unsettled. Sattva and Teal Cedar said reasonableness almost always. VavilovCanada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. A statutory appeal mechanism signals appellate standards of review. Whether that displaces Sattva for commercial arbitration appeals was left open in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7. then held that a statutory appeal attracts appellate standards, which would mean correctness on a question of law, and the Supreme Court in Wastech expressly left open whether that applies to commercial arbitration. Ontario Superior Court judges have gone both ways, and the Court of Appeal has not, as of this writing, settled the point for consensual commercial arbitration. In practice the label matters less than one would think. An appeal court reads the award as a whole and will not re-weigh the evidence. The appeal exists to catch real legal error, and a party who treats it as a second hearing will be disappointed.

On an appeal the court may confirm, vary, or set aside the award, or remit it to the tribunal with the court's opinion on the question of law (s. 45(5)), and it need not send the matter back to the same arbitrator. A further appeal lies to the Court of Appeal only with leave of that court (s. 49). There is no appeal from a refusal of leave on the merits, though a judge who wrongly declines jurisdiction to hear the leave application can be corrected.

Setting Aside an Award

Section 46 is the route for complaints about the tribunal's authority and its process. It is not an appeal, and the Court of Appeal has said repeatedly that it cannot be used as oneAlectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254, at para. 41. Having jurisdiction to award a remedy and erring in the exercise of that jurisdiction are different things. It was for the arbitrator to interpret the contract, "and it is of no moment whether the arbitrator did so reasonably or unreasonably, correctly or incorrectly".. The grounds are exhaustive. They are incapacity; an agreement that is invalid or has ceased to exist; an award that decides a matter the agreement does not cover; a tribunal composed contrary to the agreement or the Act; a non-arbitrable subject matter; unequal or unfair treatment or lack of proper notice; procedures that did not comply with the Act; a corrupt or fraudulent act by an arbitrator or a reasonable apprehension of bias; an award obtained by fraud; and, in family arbitration, an award that is not enforceable under the Family Law Act. No leave is required, and the parties cannot contract out of s. 46 (s. 3).

The excess-of-jurisdiction ground is where set-aside applications are most often argued, and most of them fail. In Alectra, an arbitrator under a broad clause awarded lost profits that the applicant said the contract excluded. The application judge set the award aside for want of jurisdiction. The Court of Appeal restored it, holding that the arbitrator had jurisdiction to interpret the contract and that an error in doing so, if there was one, was an error within jurisdiction. Jurisdiction is determined by asking whether the arbitrator had authority to make the inquiry, and the test asks what issue the tribunal decided and whether it was within the submission, and then whether anything in the agreement, properly interpreted, precluded the award. Where there is any room for uncertainty, a court errs against calling the issue jurisdictional. Where part of an award exceeds the agreement and the rest can reasonably be separated, the court sets aside only the excess (s. 46(2)).

Unfair treatment under paragraph 6 requires conduct serious enough to offend basic notions of morality and justice, and losing is not the same thing as being treated unfairly. Refusing an adjournment or ruling on a summary basis where the rules allow it is not enough. Deciding the case on a basis the parties were given no chance to address, excluding evidence the tribunal had itself invited, receiving material behind one party's back, or switching to written submissions after hearing only one side orally have all been enough, though the Court of Appeal has warned that a party cannot dress up a disagreement with the arbitrator's legal analysis as a complaint that the theory was never argued. Bias is different in kind. Under the Model Law, the Court of Appeal has held that once a reasonable apprehension of bias is established the court has no discretion to let the award stand, and that the bias of one member taints a three-person tribunal without any showing that it affected the resultVento Motorcycles, Inc. v. United Mexican States, 2025 ONCA 82. An arbitrator appointed by Mexico was offered, and did not disclose, a treaty roster appointment by Mexico's counsel during the case. Once a reasonable apprehension of bias is found the decision is void, and party-appointed arbitrators owe the same impartiality as the chair.. The same reasoning should govern s. 46, although the domestic cases still describe the court's power as discretionary. The disclosure duty, on the other hand, is judged objectively, and an arbitrator who did not disclose an unrelated appointment by the same counsel did not breach itAroma Franchise Co. v. Aroma Espresso Bar Canada Inc., 2024 ONCA 839. The application judge relied on party expectations never communicated to the arbitrator; the test for disclosure is objective and no duty was breached, so the award was restored..

Under the Model Law, article 34 is the exclusive recourse against an Ontario-seated award. The grounds mirror the Convention: incapacity or an invalid agreement, lack of notice or an inability to present one's case, an award beyond the submission, a tribunal or procedure not in accordance with the agreement, and, on the court's own motion, non-arbitrable subject matter or conflict with public policy. Public policy in this context means an award that fundamentally offends the most basic principles of justice and fairness in Ontario, or that evidences intolerable ignorance or corruption on the part of the tribunal, and it has almost never succeededConsolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2016 ONSC 7171, aff'd 2017 ONCA 939. The standard of review depends on the ground invoked; public policy requires an award that fundamentally offends basic principles of justice and fairness in Ontario; pre-arbitration steps and infra petita are not jurisdictional.. The court may suspend the application to let the tribunal cure a defect (art. 34(4)), and it retains a discretion to let a defective award stand, a discretion that is wide for a procedural slip and close to non-existent where there was never a valid agreement to arbitratePopack v. Lipszyc, 2016 ONCA 135. The court "may" set aside; the discretion to decline is significantly affected by the ground, and is far narrower for an invalid agreement than for a procedural irregularity..

Recognition & Enforcement

A domestic award is not directly enforceable. The winning party applies to the Superior Court on notice, with the original award or a certified copy (s. 50), and the court "shall" give judgment enforcing an award made in Ontario unless the thirty-day period for an appeal or set-aside application has not yet elapsed, such an application is pending, the award has been set aside or the arbitration declared invalid, or the award is a family arbitration award (s. 50(3)). Awards made elsewhere in Canada are enforced on the same terms, with the added ground that the subject matter is not arbitrable under Ontario law (s. 50(4)). While a challenge is pending the court may still enforce, or may stay enforcement on terms (s. 50(5)), and once judgment is given the court has the same enforcement powers as over its own judgments (s. 50(8)). The application must be brought within two years after the applicant receives the award (s. 52(3)). A Mareva injunction is available after the award on the ordinary test, and an award is itself a strong prima facie case.

International and foreign awards come in through the 2017 Act, which is the exclusive route, and the Model Law is a complete code on the subject. The applicant files the award, and under the Convention the arbitration agreement as well (art. 35(2); Convention art. IV), and the award is recognized and enforced irrespective of the country in which it was made unless the respondent proves one of the grounds in article 36. Those grounds mirror article 34 and add that the award has not yet become binding or has been set aside or suspended at the seat. They are construed narrowly and the onus is on the party resisting. A respondent who merely disagrees with the outcome will not be permitted to re-argue the merits under the guise of procedural unfairness. Where a set-aside application is pending at the seat, the court may adjourn the enforcement application and, on the applicant's request, order the respondent to post security (art. 36(2); Convention art. VI). An award set aside at the seat is not necessarily beyond enforcement in Ontario, since article 36 is discretionary, though no Ontario court has yet enforced an annulled award. Ontario has enforced an award while a set-aside application was pending abroad.

The limitation period for enforcing a foreign award used to be a trap. In Yugraneft Corp. v. Rexx Management Corp.2010 SCC 19. A Russian award was refused enforcement in Alberta because the two-year limitation period for a "remedial order" had run; the Convention leaves limitation periods to local procedural law., a Russian award was refused enforcement in Alberta because the province's two-year limitation period had run. Ontario answered with s. 10 of the 2017 Act, which disapplies the Limitations Act, 2002 and gives the applicant ten years from the award, or ten years from the end of any set-aside proceedings at the seat. The public policy defence remains what it was under the old ActSchreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608 (Gen. Div.). The public policy defence guards against an award that offends local principles of justice and fairness in a fundamental way; reopening the merits of foreign law under its guise would bring the Model Law into disrepute., a guard against awards that offend Ontario's principles of justice and fairness in a fundamental way, and nothing broader.

Time Limits

Arbitration runs on short, fixed periods, most of which cannot be extended. The principal ones are collected here. Where two figures appear, the first is the domestic Act and the second is the Model Law.

• Commencing the arbitration. The Limitations Act, 2002 applies as if the arbitration were an action (s. 52(1)), so the claim must be started within two years of discovery, subject to any shorter contractual deadline, which will be enforced between business parties.
• Requesting a stay of court proceedings. No fixed period under the domestic Act, but undue delay is a ground for refusal (s. 7(2), para. 4). Under the Model Law, no later than the first statement on the substance of the dispute (art. 8(1)).
• Objecting to jurisdiction. No later than the beginning of the hearing or the first written statement (s. 17(3)); no later than the statement of defence (art. 16(2)). An objection that the tribunal is exceeding its authority must be made as soon as the matter arises.
• Taking a preliminary jurisdiction ruling to court. Thirty days after receiving notice of the ruling (s. 17(8)); thirty days (art. 16(3)). No appeal from the court's decision.
• Challenging an arbitrator. Fifteen days after learning the grounds, to the tribunal, then ten days to the court after the tribunal decides (s. 13). Fifteen days, then thirty days to the court (art. 13).
• Correction or explanation of the award. Thirty days (ss. 40 and 44). Thirty days for correction or interpretation, thirty days to request an additional award and sixty for the tribunal to make it (art. 33).
• Appeal or application to set aside. Thirty days after receiving the award, correction, explanation, change, or statement of reasons (s. 47(1)), with no period where corruption or fraud is alleged (s. 47(2)). Three months under article 34(3). Neither period is extendable on the prevailing view.
• Enforcement. Two years after receiving the award (s. 52(3)). Ten years after the award, or after set-aside proceedings at the seat conclude (2017 Act, s. 10).

Cost, Speed & Confidentiality

Arbitration replaces the cost of the court with costs of its own. The parties pay the tribunal, whether that is a single senior practitioner or a panel of three, along with hearing facilities and transcripts, and institutional fees where an institution administers the case. An ICC arbitration begins with an advance on costs fixed by reference to the amount in dispute. A well-run arbitration can cost less than a comparable action, because the procedure is built for the dispute and the hearing dates are fixed by the tribunal instead of the court's trial list. A badly run arbitration, in which the parties import the Rules of Civil Procedure wholesale and then pay a tribunal to apply them, costs more than the action would have.

Speed depends on the tribunal's calendar and the parties' cooperation. A sole arbitrator can hear a commercial case within a year of the notice; the Superior Court in Toronto cannot promise a civil trial in that time. Three-member tribunals with international practices are harder to convene, and the ICC's six-month deadline for the award is routinely extended. The real speed advantage is finality. A trial judgment can be appealed as of right, on law and on fact, and then, with leave, to the Supreme Court. An award can be appealed, if at all, only on the terms the agreement and s. 45 allow, which by default means a question of law with leave, and an international award cannot be appealed at all.

Confidentiality is the most misunderstood of the three. Neither Ontario statute imposes a duty of confidentiality. The hearing is private in the sense that the public is not admitted, but a party should not assume that the documents exchanged or the award itself are protected unless the agreement, the rules, or a procedural order says so. Institutional rules vary. The ICC Rules, for example, allow the tribunal to make orders protecting trade secrets and confidential information on a party's request but do not impose a general duty. And anything that reaches the Superior Court, whether on a stay motion or on an application to set aside or enforce the award, is presumptively public under the open court principle unless a sealing order is obtained, which requires more than the parties' preference for privacy. A party for whom confidentiality is the reason to arbitrate should write it into the clause and should expect it to end at the courthouse door.