Grigoras Law's Toronto arbitration lawyers keep this table for the party weighing a challenge to an award, the party holding one, and lawyers outside the field, who ask the same question; namely, how often the courts intervene. It is general information drawn from the public reports, reviewed when a decision is added, and it says nothing about any particular case, since the outcome of an application turns on its own facts and on the terms of the arbitration agreement. It is not legal advice.
Filter by the kind of application, the court, the result and the year, or search a name; the tiles count whatever the filters leave. Click a column heading to sort it, and click a decision for the ground, the result in a sentence, the costs and the firm's articles that discuss it. Each case name opens the public report on CanLII.
All 88 decisions. Sorted by the date decided, newest first.
| Arbitrator | Costs | ||||||
|---|---|---|---|---|---|---|---|
| Specialty Life Inc. v. Daumier Financial Services Inc.2026 ONSC 5696 | 8 October 2026 | Commercial ListCavanagh J. | Set asideset aside (s. 46); enforce (s. 50) | Award upheldSet-aside dismissed; enforcement granted | Larry Lowenstein (chair), Hon. Frank J.C. Newbould, K.C. and Peter Roy | 14 | |
The disputecommercial dispute (payments to a financial services company) What was askedDaumier applied to set aside all of the awards under ss. 17(8) and 46(1)3, 6, 7 and 8; SLI applied to recognize and enforce the main award and the costs award under s. 50(1); non-parties sought a declaration of invalidity under s. 48(1)(d). The groundNo jurisdiction over payments made after August 27, 2023 (s. 46(1)3); unfairness in proceeding while Daumier was unrepresented and in the tribunal's interventions during cross-examination (ss. 46(1)6 and 7); a reasonable apprehension of bias (s. 46(1)8). The resultSet-aside application dismissed and the awards recognized and enforced. The jurisdictional objection had been waived by defending and counterclaiming, there was no denial of natural justice, the interventions did not undermine fairness on the Vento balancing, there was no apprehension of bias, and the non-parties had no standing under s. 48(1)(d). CostsBy written submissions if not agreed. Award or ruling5 August 2025 | |||||||
| Middlesex Centre (Municipality) v. South Winds Development Co.2026 ONSC 5113 | 10 September 2026 | Superior CourtMoser J. | Set asideset aside (s. 46(1)6 and 7) | Award upheldApplication dismissed | 10 | ||
The disputemunicipal servicing agreement (development) What was askedSet aside the arbitrator's ruling allowing a dispositive motion on the interpretation of the agreement at the outset of an eleven (11) week hearing, under ss. 46(1)6 and 7, after an unsuccessful request for a correction under s. 44. The groundThe municipality said it was denied a meaningful opportunity to present its case and to cross-examine the developer's engineers (s. 46(1)6), and that the procedure did not comply with the Act (s. 46(1)7). The resultApplication dismissed as an appeal disguised as a review of procedural fairness. The motion was fairly allowed, the municipality chose the case it presented and sought no adjournment, and the ruling and the award stand. CostsBy written submissions if not agreed. Award or ruling5 November 2025 The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| 1171757 Ontario Ltd. v. 1171758 Ontario Ltd.2026 ONSC 4414 | 29 July 2026 | Superior CourtE. Iacobucci J. | Jurisdictions. 17(8) (non-signatory claimant) | Jurisdiction upheldApplication dismissed; the cross-application allowed | Hon. Thomas McEwen | ||
The disputepartnership agreement (dissolution; compensation) What was askedA declaration under s. 17(8) that the arbitrator lacks jurisdiction over claims brought by a non-partner shareholder under the partnership agreement's arbitration clause, with a cross-application confirming jurisdiction. The groundThe claimant was said not to be a "partner" or "principal" and so not a party to the arbitration agreement; whether a "final and binding and no appeal" clause bars the application. The resultApplication dismissed and the cross-application allowed on a hearing de novo. The claimant was a party to the partnership agreement, as a shareholder heir under its enurement clause, with standing to arbitrate, and the dissolution and compensation claims were all arbitrable; a clause precluding an appeal does not prevent a court from deciding the preliminary question of jurisdiction de novo. CostsBy written submissions if not agreed. The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Tedescon Infrastructure Ltd. v. Simcoe (County)2026 ONSC 3548 | 3 July 2026 | Superior CourtR.L. Akazaki J. | Set asideset aside (s. 46); leave to appeal (s. 45(1)) | Award upheldApplication and cross-application dismissed | Duncan Glaholt | ||
The disputeconstruction contract (road reconstruction) What was askedSet aside the award under s. 46 or, alternatively, leave to appeal under s. 45(1) on a question of law; the county cross-applied for leave to appeal. The groundSection 46(1)3 was invoked to attack the substance of the award, with unfairness said to amount to a denial of natural justice; whether the words "final and binding" in the agreement to arbitrate excluded any appeal under s. 45(1). The resultBoth dismissed. Section 46(1)3 is not a route to the merits and no denial of natural justice was shown, and "final and binding" implicitly excluded any appeal under s. 45(1), the court adding that, but for that exclusion, it would have granted leave to both parties and allowed the contractor's appeal in part for an extricable error of law on repudiation. CostsBy written submissions if not agreed. The firm's articlesAppealing an Arbitral Award in Ontario; Setting Aside an Arbitral Award in Ontario | |||||||
| York Region Standard Condominium Corp. No. 1311 v. Star Woodworking Ltd.2026 ONSC 2381 | 30 April 2026 | Superior CourtPollak J. | Set asideset aside (s. 46(1)6); leave to appeal (s. 45) | Award upheldSet-aside and leave application dismissed | Leslie Dizgun | 17 | to the respondent (agreed) |
The disputecondominium (oppression claim under the Condominium Act, 1998) What was askedSet aside the award under s. 46(1)6 and, alternatively, leave to appeal and an appeal under s. 45. The groundNo signed written arbitration agreement; denial of natural justice and procedural fairness; insufficient reasons. The resultBoth dismissed. The parties had agreed at the outset to an arbitration agreement making the award final and binding without appeal, any objection to jurisdiction had to be raised before the arbitrator under s. 17, the hearing was fair, and the reasons were logical and transparent. CostsTo the respondent in an agreed amount, which the reasons do not state. Award or ruling5 December 2024 | |||||||
| Rogers Communications Inc. v. Glentel Inc.2026 ONSC 2446 | 27 April 2026 | Superior CourtJ. Leiper J. | Appealappeal of law and mixed questions (agreed right) | Award upheldAppeal dismissed | Hon. Kathryn Feldman | 17 | |
The disputedistribution agreement (ancillary services) What was askedAppeal, by application, from a partial award on questions of law and of mixed fact and law under the parties' agreed right of appeal (ss. 45(2) and (3)), without leave. The groundThe arbitrator was said to have exceeded her jurisdiction by answering a question not asked, to have failed to consider an alternative argument, and to have made extricable errors in interpreting "ancillary services." The resultAppeal dismissed on the appellate standards, correctness for questions of law and palpable and overriding error for mixed questions, the court siding with the post-Vavilov line of Superior Court decisions. The arbitrator stayed within her mandate, was alive to the alternative argument and made no extricable or palpable and overriding error. CostsBy written submissions if not agreed. Award or ruling6 December 2024 The firm's articleAppealing an Arbitral Award in Ontario | |||||||
| Sitzer Group Holdings No. 1 Ltd. v. Grall Corp.2026 ONSC 2452 | 24 April 2026 | Commercial ListDunphy J. | Appealleave and appeal (s. 45); set aside (s. 46(1)3) | Award variedLeave granted; appeal allowed in part; set aside in part | Sharpe (no first name in the report) | 14 | |
The disputeco-tenancy agreement (constructive trust claim) What was askedUnder ss. 45, 46 and 50, leave to appeal and an appeal on questions of law, and an order under s. 46(1)3 setting aside the parts of the partial final award finding an ad hoc fiduciary duty and awarding a fifty (50) per cent trust interest in a parcel of land. The groundAn extricable error of law in failing to give effect to the clear language of the 1971 co-tenancy agreement (s. 45); the unpleaded ad hoc fiduciary duty, first raised in the claimant's opening, was beyond the question submitted (s. 46(1)3), with unequal treatment (s. 46(1)6); whether a "final and conclusive" clause excluded appeals, held not. The resultLeave granted and the appeal allowed in part. The paragraphs of the award finding an ad hoc fiduciary duty and awarding a fifty (50) per cent trust interest were struck under s. 45(5) as the product of extricable errors of law and set aside under s. 46(1) as beyond the arbitrator's jurisdiction, the applicants having objected immediately when the unpleaded duty was raised. CostsBy written submissions if not agreed. Award or ruling6 March 2025 The firm's articlesAppealing an Arbitral Award in Ontario; Setting Aside an Arbitral Award in Ontario | |||||||
| InFrontier AF LP v. Rahmani2026 ONCA 289 | 21 April 2026 | Court of AppealZarnett J.A. (Huscroft and Pomerance JJ.A. concurring) | Enforcementappeal from a recognition and enforcement order (New York Convention) | Award enforcedAppeal dismissed | Antonia Birt | 21 | $30,000 |
The disputeloan guarantee (Dubai-seated award) What was askedAppeal from the judgment (2025 ONSC 3968) recognizing and enforcing, under the ICAA and the New York Convention, a Dubai International Arbitration Centre award of more than US$2.5 million against an Ontario guarantor. The groundThe arbitral procedure was said not to accord with the parties' agreement, the DIAC Rules having been applied after the DIFC-LCIA regime named in the loan agreement was abolished (art. V(1)(d)); the guarantor said he was unable to present his case (art. V(1)(b)) and that enforcement offended public policy (art. V(2)(b)). The resultAppeal dismissed. The parties had agreed to the rules as amended from time to time before the arbitration began, so the rules agreed to and the rules applied were the same and art. V(1)(d) was not established; the other two (2) grounds were derivative and failed with it. Costs$30,000 all inclusive. Award or ruling2 August 2024 The firm's articleEnforcing an Arbitral Award in Ontario | |||||||
| Sherif Gerges Pharmacy Professional Corp. v. Niam Pharmaceuticals Inc.2026 ONSC 1720 | 23 March 2026 | Divisional CourtBackhouse, Lococo and Kaufman JJ. | Stay of actionarbitration clause raised on appeal (no s. 7 motion) | Court proceedings continueAppeal dismissed; the arbitration argument rejected | $35,000 | ||
The disputeshareholder dispute (pharmacies) What was askedAppeal from orders (2025 ONSC 2058) appointing an inspector and granting leave to bring derivative actions, the appellants arguing that the disputes had to be arbitrated under the shareholder agreements, though no motion under s. 7 had been brought. The groundThe Peace River framework; the proposed derivative claims were the corporations' claims and the corporations were not parties to the arbitration agreements; waiver and attornment by full participation in the court proceedings. The resultAppeal dismissed. The arbitration argument failed on the face of the agreements, the corporations not being parties to them, and through waiver, the appellants having participated fully in the court proceedings without moving under s. 7(1); the earlier refusal of interim relief also stood. Costs$35,000. | |||||||
| Formenton v. Newport Sports Management Inc.2026 ONSC 1373 | 6 March 2026 | Superior CourtSchabas J. | Set asideset aside (s. 46(1)3 and 6) | Award upheldApplication dismissed | 14 | $25,000 to the respondents | |
The disputeplayer-agent dispute (NHLPA regulations) What was askedSet aside the award dismissing a hockey player's claims against his former agent as barred by a six (6) month limitation period, under ss. 46(1)3 and 6, with a parallel court action seeking the same relief. The groundThe arbitrator lacked jurisdiction to apply the limitation period to conduct after July 12, 2022 (s. 46(1)3); unfair process and refusal of relief from forfeiture (s. 46(1)6). The resultApplication dismissed. The arbitrator had authority to decide arbitrability and the arbitration provisions survived under s. 17(2), there was no unequal or unfair treatment, and the parallel court action was dismissed because the award binds the applicant under s. 37. Costs$25,000 inclusive of HST and disbursements to the respondents; the NHLPA sought no costs. Award or ruling13 January 2025 The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| Bot Construction Ltd. v. Ontario (Minister of Transportation)2025 ONSC 6184 | 5 November 2025 | Superior CourtCallaghan J. | Appealappeal on fact, law and mixed questions (s. 45(3)) | Award upheldAppeal dismissed | Hon. Frank J.C. Newbould, K.C. | 11 | |
The disputehighway construction contract (excess rock) What was askedAppeal under the agreement's full right of appeal on questions of fact, law and mixed fact and law (s. 45(3)) from the award of December 7, 2024 of more than $14 million. The groundAlleged errors in interpreting the contract's provisions on excess blasted rock and in the calculation of damages; the appellate standards of review applied. The resultAppeal dismissed. There was no error of law, of fact or of mixed fact and law in the arbitrator's interpretation or in his damages analysis. CostsBy submissions if not agreed. Award or ruling7 December 2024 The firm's articleAppealing an Arbitral Award in Ontario | |||||||
| Jewish Foundation of Greater Toronto v. Joseph Lebovic Charitable Foundation2025 ONSC 5068 | 8 September 2025 | Superior CourtKoehnen J. | Set asideset aside (s. 46); appeal (s. 45); enforce (s. 50) | Award upheldApplications dismissed; the awards enforced | Hon. Colin L. Campbell | 25 | $110,736.95 to the respondent |
The disputecharitable donor agreement What was askedSet aside under s. 46, or appeal under s. 45, four (4) decisions of the arbitrator (the jurisdiction decision of March 15, 2023, the main award of July 27, 2023, the damages award of February 28, 2024 and the costs award of March 12, 2024); the foundation cross-applied to recognize and enforce them under s. 50. The groundJurisdiction, procedural fairness and alleged errors of law, including the standard of review on an appeal under s. 45 (addressed at ¶¶ 121 and 122). The resultThe applications to set aside and the appeals were dismissed on every ground, and the foundation's cross-application was granted, the four (4) decisions being recognized and enforced under s. 50(3). Costs$110,736.95 substantial indemnity, inclusive of disbursements and HST, to the UJA. Award or ruling27 July 2023 | |||||||
| Place Laurier Ltd. v. The Manufacturers Life Insurance Company2025 ONSC 4172 | 15 July 2025 | Superior CourtK.A. Jensen J. | Appealleave to appeal and appeal (s. 45(1)) | Award upheldLeave granted; appeal dismissed | Sydney Troister | 16 | to the respondent |
The disputeground lease rent reset What was askedLeave to appeal under s. 45(1), and an appeal, of the rent reset award fixing the fair market value of the land at $12.5 million. The groundExtricable questions of law, including highest and best use as a legal test, in a matter of great importance to the parties, $21,853,800 being in dispute over the remaining term; the appellate standards of review apply, so correctness on questions of law. The resultLeave granted on some of the questions raised, for their importance to the parties and because extricable questions of law would significantly affect their rights; appeal dismissed on the merits, the arbitrator having made no error of law, the court noting that remission to the arbitrator would have been the remedy had an error been found. CostsTo Manulife (the amount is not given in the reasons). Award or ruling13 March 2024 The firm's articleAppealing an Arbitral Award in Ontario | |||||||
| InFrontier AF LP v. Rahmani2025 ONSC 3968 | 3 July 2025 | Commercial ListCavanagh J. | Enforcementrecognition and enforcement (New York Convention) | Award enforcedApplication granted | Antonia Birt | 11 | |
The disputeloan guarantee (Dubai-seated award) What was askedRecognition and enforcement under the ICAA of a Dubai International Arbitration Centre award of August 2, 2024 against an Ontario guarantor of a loan. The groundThe guarantor resisted under art. V(1)(d) of the New York Convention (procedure not in accordance with the parties' agreement), art. V(1)(b) (unable to present his case) and art. V(2)(b) (public policy). The resultApplication granted and the award recognized and enforced. The guarantor had not shown that the procedure was unfairly compressed, that the rulings on legal representation were unfair, or that he was unfairly denied relevant documents. CostsBy written submissions if not agreed. Award or ruling2 August 2024 Appellate historyAffirmed, 2026 ONCA 289. The firm's articleEnforcing an Arbitral Award in Ontario | |||||||
| 1750738 Ontario Inc. c. 6888631 Canada Inc.2025 ONCS 3145 | 27 May 2025 | Superior CourtRees J. | Appealappeal on questions of law; set aside (s. 46) | Award variedApplication granted in part; two orders in the award set aside | 7 | ||
The disputeoral contract for subdivision lots (shareholders' project) What was askedSet aside, or appeal on questions of law under the parties' arbitration protocol, the award of October 28, 2024 on the enforceability of an oral contract for the allocation of lots in a subdivision, made after the Superior Court's judgment on the contract could no longer be performed. The groundThe arbitrator was said to have exceeded his jurisdiction and erred in law in setting aside an order of the Superior Court and in binding a corporation that was not a party to the arbitration, and to have erred in law in holding that only the builder could purchase the lots and in recognizing a Tarion licence as an implied condition of the contract; the appellate standards of review applied, correctness on questions of law. The resultGranted in part. The arbitrator erred in law in purporting to set aside a Superior Court order, a power the parties could not confer on him, and in binding a corporation that was not a party, and the two (2) orders were set aside; neither error affected the outcome, since holding a Tarion licence was an implied condition of the oral contract, the arbitrator's interpretation of the contract raised mixed questions of fact and law not open to appeal, res judicata was respected, and remitting the errors would have been pointless. CostsBy written submissions if not agreed within two (2) weeks. Award or ruling28 October 2024 The firm's articleAppealing an Arbitral Award in Ontario | |||||||
| Spinney v. Fowlie2025 ONSC 2632 | 29 April 2025 | Superior CourtHackland J. | Set asideset aside (s. 46(1)6) | Award set asideApplication granted; new hearing directed | Richard W. Pound, C.C., K.C. (Sport Dispute Resolution Centre of Canada) | 5 | $49,636.38 to the applicants |
The disputesports discipline (harassment complaint) What was askedSet aside under s. 46 the award of November 22, 2024 and the costs award. The groundThe applicants were not treated equally and fairly (s. 46(1)6), the arbitrator having converted the hearing to a written process without consultation and refused to consider two (2) of the applicants' closing submissions. The resultApplication granted. The award and the costs award were set aside under s. 46(1)6 and the matter remitted to the Sport Dispute Resolution Centre of Canada for a new hearing before a different panel. Costs$49,636.38 partial indemnity, inclusive of HST and disbursements, to the applicants (costs decision, 2025 ONSC 4547). Award or ruling22 November 2024 The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| Link 427 General Partnership v. Ontario (Minister of Transportation)2025 ONSC 2375 | 17 April 2025 | Commercial ListKimmel J. | Appealappeal on questions of law (s. 45(2)) | Award upheldAppeal dismissed | J.D. Cunningham K.C. | 14 | |
The disputehighway project agreement (Highway 427 extension) What was askedAppeal under s. 45(2) on questions of law, under the parties' agreed arbitration terms, from an award on four (4) disputes over time and money under a highway project agreement. The groundAlleged extricable errors of law in the interpretation of the project agreement; the standard of review. The resultAppeal dismissed. No extricable question of law was identified, the tribunal having applied the correct principles of contract interpretation, and the appellate standards of review applied. CostsThe respondent presumptively entitled to partial indemnity costs, the quantum to be agreed or set after a case conference. Award or ruling16 February 2024 The firm's articleAppealing an Arbitral Award in Ontario | |||||||
| Halton Healthcare Services Corp. v. Plenary Health Milton LP2025 ONSC 2223 | 10 April 2025 | Superior CourtPapageorgiou J. | Stay of actionstay of an application (s. 7) | Stay refusedMotion dismissed | |||
The disputehospital P3 project agreement What was askedStay under s. 7 of the hospital's application for an interpretation of the project agreement, in favour of arbitration. The groundUnder s. 7(1) and the Husky Food and Peace River test there was no arguable case of an agreement to arbitrate, disputes being referable to arbitration only on mutual written consent; under s. 7(2) the respondents had taken substantive steps in the proceeding and had moved with undue delay, a year after the application began. The resultStay refused on all three (3) issues; there was no arbitration agreement, the moving parties had taken steps in the proceeding, and they had moved with undue delay. Costs were reserved to the application judge. CostsReserved to the application judge. The firm's articleStaying a Court Action in Favour of Arbitration in Ontario | |||||||
| Remington Georgetown Inc. v. Tarion Warranty Corporation2025 ONSC 1285 | 26 February 2025 | Superior CourtMorgan J. | Set asideset aside (s. 46) | Award upheldApplication dismissed | Deborah Anschell | 24 | |
The disputenew home warranty (chargeable conciliations) What was askedSet aside under s. 46 the award of February 24, 2023 dismissing the builder's challenge to Tarion's findings on chargeable conciliations. The groundAn unfair process, reliance on a builder bulletin, bias and functus officio, framed as s. 46 grounds. The resultApplication dismissed. The arbitrator did nothing unfair in applying the chargeability conditions she was required to apply, and disagreement with her conclusion is no ground to set the award aside. CostsBy written submissions. Award or ruling24 February 2023 The firm's articlesAppealing an Arbitral Award in Ontario; Setting Aside an Arbitral Award in Ontario | |||||||
| Vento Motorcycles, Inc. v. Mexico2025 ONCA 82 | 4 February 2025 | Court of AppealHuscroft J.A. (Trotter and Dawe JJ.A. concurring) | Set asideappeal from the dismissal of a set-aside application (Model Law) | Award set asideAppeal allowed; the award set aside | Andres Rigo Sureda (president), David Gantz and Hugo Perezcano | 55 | $160,000 to the appellant (agreed) |
The disputeinvestment treaty (NAFTA Chapter 11) What was askedAppeal from the dismissal of Vento's application under art. 34(2) of the Model Law to set aside a NAFTA award. The groundA reasonable apprehension of bias in Mexico's nominee arbitrator, who was offered roster appointments by Mexico's lead counsel during the arbitration (art. 34(2)(a)(iv)); the application judge was said to have erred in exercising a discretion not to set aside. The resultAppeal allowed and the award set aside. A reasonable apprehension of bias is a serious violation of procedural fairness that cannot be balanced away under Popack, and the bias of one member taints the whole tribunal regardless of unanimity. Costs$60,000 for the appeal and $100,000 for the application, all inclusive, to Vento, as agreed. Award or ruling6 July 2020 The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| Moscone v. Edenrock Holdings Inc.2025 ONSC 32 | 3 January 2025 | Superior CourtParghi J. | Set asideset aside (s. 46(1)); leave (s. 45); enforce (s. 50) | Award upheldSet-aside dismissed; leave refused; enforcement granted | Hon. Justice Blair (retired) | 23 | |
The disputecommercial co-tenancy (showroom rent and space) What was askedSet aside under s. 46(1) the decision of February 8, 2023 and the costs decision of April 5, 2023 or, alternatively, leave to appeal under s. 45; the respondents cross-applied to enforce the decisions. The groundProcedural fairness and natural justice (submissions on certain claims; a reinterpretation of the claims) and bias. The resultSet-aside application dismissed and leave to appeal refused, the agreement having excluded appeals and no question of law arising; the application to enforce the decisions granted. CostsBy written submissions. Award or ruling8 February 2023 The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| Joseph Lebovic Charitable Foundation v. Jewish Foundation of Greater Toronto2024 ONCA 933 | 23 December 2024 | Court of AppealFavreau, Monahan and Gomery JJ.A. | Jurisdictionmotion to quash a leave motion (s. 17(9)) | Jurisdiction upheldLeave motion quashed (s. 17(9)) | Hon. Colin L. Campbell, Q.C. (named in the 2024 ONSC 4400 extract) | 21 | $15,000 |
The disputecharitable donor agreement What was askedMotion to quash the foundation's motion for leave to appeal from the s. 17(8) decision (2024 ONSC 4400). The groundSection 17(9) provides that there is no appeal from the court's decision on a s. 17(8) application; the responding party said the arbitrator's ruling had not been on a preliminary question. The resultMotion granted and the leave motion quashed. The arbitrator ruled on jurisdiction as a preliminary question under s. 17(7) even though the ruling came after the merits hearing had begun, so s. 17(9) precluded any appeal. Costs$15,000 inclusive of disbursements and HST to the moving parties (substantial indemnity costs of about $26,500 were sought and found excessive). Award or ruling15 March 2023 The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc.2024 ONCA 839 | 19 November 2024 | Court of AppealZarnett J.A. (Fairburn A.C.J.O. and van Rensburg J.A. concurring) | Set asideappeal from an order setting aside awards (Model Law) | Award reinstatedAppeal allowed; the award reinstated; other grounds remitted | P. David McCutcheon | $40,000 to the appellants | |
The disputefranchise (master franchise agreement) What was askedAppeal from the application judge's order setting aside the awards of an international arbitration for a reasonable apprehension of bias. The groundA reasonable apprehension of bias and a breach of the duty of disclosure, the arbitrator having accepted, without disclosing it, a second unrelated arbitration from the law firm acting for one party; the objective Model Law test, the IBA Guidelines not being a legal standard. The resultAppeal allowed, the application judge's judgment set aside and the award reinstated. The application judge erred in law by treating the parties' subjective expectations as determinative; the remaining set-aside grounds (excess of jurisdiction, damages, failure to decide an issue and inadequate reasons) were remitted to the Superior Court. Costs$40,000 inclusive of disbursements and taxes to the appellants; the costs of the application remitted to the judge finally disposing of it. The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| Lochan v. Binance Holdings Ltd.2024 ONCA 784 | 28 October 2024 | Court of AppealHuscroft, Harvison Young and Copeland JJ.A. | Stay of actionappeal from the refusal of a stay (ICAA, s. 9) | Stay refusedAppeal dismissed; the refusal of a stay upheld | $30,000 | ||
The disputeproposed securities class action (cryptocurrency derivatives) What was askedAppeal from the dismissal of Binance's motion to stay a proposed securities class action under s. 9 of the International Commercial Arbitration Act, 2017 in favour of arbitration under its click-through terms of use. The groundCompetence-competence, the validity of the clause being said to be for the arbitral tribunal; the clause was said to be neither void for public policy nor unconscionable. The resultAppeal dismissed. The Dell exception for a question of law on standard form terms and the Uber "brick wall" exception applied, and the arbitration clause was void as contrary to public policy and unconscionable. Costs$30,000. The firm's articleStaying a Court Action in Favour of Arbitration in Ontario | |||||||
| Burwell v. Wozniak2024 ONSC 5851 | 22 October 2024 | Superior CourtRees J. | Appealleave to appeal and appeal (s. 45) | Award set asideLeave granted; appeal allowed; the award set aside | 14 | ||
The disputepromised shares (proprietary estoppel) What was askedLeave to appeal, and an appeal, under s. 45 of an award finding a proprietary estoppel over shares promised in a personal relationship. The groundAn error of law in extending proprietary estoppel to company shares, the promise having been contingent on a family trust agreement; the appellate standards of review apply. The resultLeave granted, the award set aside and the estoppel claim dismissed without remitting it; an earlier trust award had already been set aside by another judge and the estoppel claim remitted. CostsThe appellant presumptively entitled to costs, by written submissions. Award or ruling30 August 2023 The firm's articleAppealing an Arbitral Award in Ontario | |||||||
| Joseph Lebovic Charitable Foundation v. Jewish Foundation of Greater Toronto2024 ONSC 4400 | 8 August 2024 | Superior CourtJ.T. Akbarali J. | Jurisdictions. 17(8) (scope of the issues) | Jurisdiction upheldApplication dismissed | Hon. Colin L. Campbell, Q.C. | 17 | $26,610.61 (agreed) |
The disputecharitable donor agreement What was askedA determination under s. 17(8) that the arbitrator erred in finding that he had jurisdiction over the relief claimed in the foundation's amended statement of issues. The groundThe arbitrator was said to lack jurisdiction over the issues; the applicant said an objection could be raised up to the beginning of the hearing. The resultApplication dismissed. The applicant had agreed to remit all matters to the arbitrator and had waived any jurisdictional objection by its conduct, including a counterclaim, its own demand for arbitration and an eighteen (18) month delay; s. 4(1) sets when waiver is deemed but does not prevent an earlier actual waiver, and the challenge was strategic rather than genuine. Costs$26,610.61 to the successful party, as agreed. Award or ruling15 March 2023 Appellate historyMotion for leave to appeal quashed, 2024 ONCA 933 (s. 17(9)). The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Clayton v. Canada (Attorney General)2024 ONCA 581 | 24 July 2024 | Court of AppealHuscroft J.A. (George and Favreau JJ.A. concurring) | Set asideappeal from the dismissal of a set-aside application (Model Law) | Award upheldAppeal dismissed | NAFTA Chapter 11 tribunal of three | $100,000 (agreed) | |
The disputeinvestment treaty (NAFTA; quarry project) What was askedAppeal from the dismissal (2022 ONSC 6583) of the application to set aside a NAFTA damages award under art. 34 of the Commercial Arbitration Code, the federal enactment of the Model Law. The groundThe tribunal was said to have exceeded its jurisdiction and the award to conflict with public policy. The resultAppeal dismissed. The jurisdictional argument was an attempt to circumvent the limits on court intervention (Cargill, Alectra), the award is subject neither to appeal nor to review for reasonableness, and nothing in it offends Canadian public policy. Costs$100,000 all inclusive to Canada, as agreed. The firm's articlesEnforcing an Arbitral Award in Ontario; Setting Aside an Arbitral Award in Ontario | |||||||
| Clost v. Rennie2024 ONCA 514 | 26 June 2024 | Court of AppealRoberts, B. Miller and Coroza JJ.A. | Jurisdictionmotion to quash an appeal (s. 17(9)) | No jurisdictionAppeal and leave motion quashed (s. 17(9)) | Richard J. Weiler | 26 | $18,000 to the moving party |
The disputealleged cottage lease (forged signature) What was askedMotion to quash the appeal and the motion for leave to appeal from the s. 17(8) decision (2023 ONSC 6998) that overturned the arbitrator's ruling on jurisdiction. The groundSection 17(9) gives no further right of appeal from a Superior Court judge's decision on a s. 17(8) review of a preliminary jurisdiction ruling (Iris Technologies). The resultAppeal and leave motion quashed for want of jurisdiction, in a decision given orally the day after the hearing. Costs$18,000 all inclusive, partial indemnity, to the moving party for the appeal, the motion to quash and the leave motion. Award or ruling21 April 2022 The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Ibrahim v. Koshi Bashi Inc.[2024] O.J. No. 4613 | 16 May 2024 | Superior CourtE.M. Stewart J. | Enforcementenforcement (s. 50); Mareva injunction | Award enforcedAward enforceable under s. 50; Mareva refused | $4,500 (divided success) | ||
The disputeshareholder oppression (restaurant) What was askedEnforcement of the final award under s. 50 (a share purchase of $75,000, shareholder loans of $223,585.71 with interest, and substantial indemnity costs), and a worldwide Mareva injunction under s. 101 of the Courts of Justice Act. The groundThe award had not been appealed and no application to set it aside or vary it had been brought; the Mareva test was not met, the relief sought was in the nature of a permanent injunction, and the applicant sought to waive the undertaking as to damages. The resultThe final award declared enforceable under s. 50; the worldwide Mareva motion dismissed without prejudice to a motion on modified terms confined to Ontario assets and supported by an undertaking as to damages. Costs$4,500 partial indemnity, joint and several, success being divided (costs endorsement, 2024 ONSC 5218). | |||||||
| Campbell v. Toronto Standard Condominium Corporation No. 26002024 ONCA 218 | 25 March 2024 | Court of AppealHarvison Young J.A. (Simmons and George JJ.A. concurring) | Set asideappeal from an order setting aside an award (s. 46(1)9) | Award upheldAppeal allowed; the award restored | Marc Bhalla | 31 | $20,125.41 to the appellant |
The disputecondominium (costs award of $30,641.72) What was askedAppeal from the order (2022 ONSC 2805) that set aside the award for constructive fraud under s. 46(1)9 on an application brought after the thirty (30) day limit in s. 47. The groundWhether "fraud" in ss. 46(1)9 and 47(2) includes constructive fraud, and whether the court may extend the s. 47(1) limit. The resultAppeal allowed and the award restored. There was no actual fraud, constructive fraud is not "fraud" under ss. 46(1)9 and 47(2), and the remaining s. 46 grounds were closed by the thirty (30) day limit, which the court cannot extend. Costs$20,125.41 partial indemnity, inclusive of the leave application, HST and disbursements, to the appellant condominium corporation; the costs below to be agreed or addressed by written submissions. Award or ruling6 September 2021 The firm's articlesSetting Aside an Arbitral Award in Ontario; Enforcing an Arbitral Award in Ontario | |||||||
| Wasylyk v. Lyft, Inc.2024 ONSC 664 | 30 January 2024 | Superior CourtPerell J. | Stay of actionstay of a proposed class action (s. 7(1)) | Action stayedStay granted | as agreed | ||
The disputeproposed class action (drivers; employment standards) What was askedStay of a proposed class action by drivers under s. 7(1) in favour of arbitration under the driver agreement. The groundThe arbitration clause was said to be inaccessible, unconscionable and contrary to the Employment Standards Act, 2000; the s. 7(2) exceptions, including a proper case for summary judgment, were argued. The resultStay granted. The technical prerequisites were met, the challenges to the clause were for the arbitrator or failed, and no exception under s. 7(2) applied. CostsAs agreed. | |||||||
| China Yantai Friction Co. v. Novalex Inc.2024 ONSC 608 | 26 January 2024 | Superior CourtC. Chang J. | Enforcementrecognition and enforcement (Model Law, arts. 35 and 36) | Award enforcedAward recognized and enforced | CIETAC tribunal of three | 62 | $50,000 (agreed) |
The disputeinternational sale of goods (unpaid invoices) What was askedRecognition and enforcement of a CIETAC award under the International Commercial Arbitration Act, 2017 (Model Law, arts. 35 and 36). The groundThe respondent said it was unable to present its case, having asked to retain appraisers after the evidence closed (art. 36(1)(a)(ii)), and that the award was contrary to public policy (art. 36(1)(b)(ii)). The resultAward recognized and enforced. The respondent had participated in the arbitration, selected arbitrators and made submissions, and the court said that it would not have exercised its discretion to refuse recognition even had procedural unfairness been shown. Costs$50,000 all inclusive, by agreement. Award or ruling18 November 2018 The firm's articleEnforcing an Arbitral Award in Ontario | |||||||
| Schickedanz v. Wagema Holdings Ltd.2023 ONSC 7219 | 21 December 2023 | Superior CourtVermette J. | Appealappeal of a costs award (s. 45) | Award upheldAppeal dismissed | Hon. Frank J.C. Newbould, K.C. | 26 | |
The disputecommercial arbitration costs award (discontinued arbitration) What was askedAppeal under s. 45, under agreed rights of appeal, to vary the costs award so that the respondent recovered only its litigation counsel's fees on a partial indemnity basis. The groundErrors in principle were alleged in allowing a second firm's litigation support fees of $172,150.34, in allowing that firm's costs despite its withdrawal without costs, and in treating full indemnity as the usual measure in commercial arbitrations; the respondent said leave was needed under s. 133(b) of the Courts of Justice Act. The resultAppeal dismissed. Leave was not required, s. 133(b) applying only to costs awards of a court; the arbitrator's award of full legal expenses under s. 54 was neither an error in principle nor plainly wrong, Electek does not make partial indemnity the rule, quantum is for the arbitrator, and the litigation support fees were recoverable legal expenses. CostsBy written submissions if not agreed. Award or ruling8 October 2021 The firm's articlesCosts in a Commercial Arbitration in Ontario; Appealing an Arbitral Award in Ontario | |||||||
| Clost v. Rennie2023 ONSC 6998 | 13 December 2023 | Superior CourtR.M.R. Bell J. | Jurisdictions. 17(8) (forged lease) | No jurisdictionApplication granted; the ruling set aside | Richard J. Weiler | 20 | to the applicant (2024 ONSC 1012) |
The disputealleged cottage lease (forged signature) What was askedA declaration under s. 17(8) that an alleged 2005 lease and its arbitration clause were invalid for fraud in the execution, and an order setting aside the arbitrator's preliminary ruling on jurisdiction. The groundA hearing de novo; there was no arbitration agreement because the signature on the alleged lease was forged; the respondents said the ruling was a stand-alone award reviewable only under ss. 45 or 46. The resultApplication granted on a hearing de novo. The alleged lease, including its arbitration clause, was declared invalid and the arbitrator's ruling set aside, so there was no jurisdiction to conduct the arbitration; ss. 45 and 46 did not arise because the ruling was not an award, and the court fixed the costs of the jurisdiction motion before the arbitrator rather than remitting them. CostsTo the applicant, for the application and for the jurisdiction motion before the arbitrator, fixed in a separate decision (2024 ONSC 1012). Award or ruling21 April 2022 Appellate historyAppeal and leave motion quashed, 2024 ONCA 514. The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Competition Motors Ltd. v. Toyota Canada Inc.2023 ONSC 6388 | 14 November 2023 | Commercial ListPenny J. | Set asideset aside (s. 46(1)3 and 6) | Award upheldApplication dismissed | NADAP appeal panel of three retired judges (not named) | $100,000 (agreed) | |
The disputeautomobile dealer dispute (NADAP) What was askedSet aside the award of the NADAP appeal panel under ss. 46(1)3 and 6. The groundThe appeal panel exceeded its jurisdiction by applying a correctness standard of review under the NADAP rules (s. 46(1)3); denial of procedural fairness (s. 46(1)6). The resultApplication dismissed. Whether the panel adhered to its standard of review was a question of law and not of jurisdiction, the panel in any event acted within its jurisdiction, and the fairness complaint fell with the jurisdictional one. Costs$100,000 partial indemnity, inclusive of fees, disbursements and taxes, to Toyota, as agreed. The firm's articlesSetting Aside an Arbitral Award in Ontario; Appealing an Arbitral Award in Ontario | |||||||
| Crosslinx Transit Solutions General Partnership v. Ontario Infrastructure and Lands Corp.2023 ONSC 3500 | 12 June 2023 | Commercial ListPenny J. | Stay of actionstay of an application (s. 7) | Action stayedApplication stayed | $60,000 to the moving parties | ||
The disputeP3 project agreement (light rail transit) What was askedStay under s. 7 of the contractor's court application, in favour of arbitration under the clause in the parties' minutes of settlement. The groundSection 7(1) and competence-competence, the moving party needing only an arguable case that the dispute falls within the arbitration agreement; the applicants said the clause did not apply and that the motion came with undue delay (s. 7(2)4). The resultApplication stayed. Whether the application is caught by the arbitration agreement in the minutes of settlement is for the arbitrator to decide first, and participation in the independent certifier step was not undue delay. Costs$60,000 all inclusive, partial indemnity, to the moving parties. The firm's articleStaying a Court Action in Favour of Arbitration in Ontario | |||||||
| Ontario (Minister of Northern Development, Mines, Natural Resources and Forestry) v. HugoMB Contracting Inc.2023 ONSC 3513 | 12 June 2023 | Superior CourtR. Centa J. | Jurisdictions. 17(8) (claim outside the clause) | No jurisdictionApplication granted; the ruling set aside | 16 | $7,000 to the applicant | |
The disputeconstruction contract (dam rehabilitation) What was askedA decision under s. 17(8) on whether a $4.1 million claim for the contractor's disqualification from other Ministry tenders was arbitrable, after the arbitrator ruled as a preliminary question that it was. The groundThe claim fell outside the scope of the arbitration clause; the application is a hearing de novo with no deference to the arbitrator. The resultApplication granted. The arbitrator's preliminary ruling of February 14, 2022 was set aside and the claim declared not arbitrable; his costs award on the jurisdiction motion was set aside, the amounts paid were to be returned, and the costs of that motion were remitted to him. Costs$7,000 inclusive of disbursements and HST to the Ministry, on consent. Award or ruling14 February 2022 The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Russian Federation v. Luxtona Limited2023 ONCA 393 | 2 June 2023 | Court of AppealMacPherson J.A. (Fairburn A.C.J.O. and Miller J.A. concurring) | Jurisdictionthe evidence admissible on a jurisdiction challenge (arts. 16(3) and 34) | ProceduralAppeal dismissed; fresh evidence admissible on a de novo hearing | $75,000 (agreed) | ||
The disputeinvestment treaty (Energy Charter Treaty; Toronto seat) What was askedAppeal from the Divisional Court's ruling that, on Russia's application under arts. 16(3) and 34(2) of the Model Law to set aside the tribunal's interim award on jurisdiction, fresh evidence may be filed as of right because the application is a hearing de novo. The groundThe nature of a jurisdictional set-aside application, a proceeding de novo rather than a review or an appeal; competence-competence as a rule of chronological priority requiring no deference to the tribunal's ruling on its own jurisdiction. The resultAppeal dismissed. An application to set aside an award for lack of jurisdiction under arts. 16(3) and 34(2) is a proceeding de novo, so the court is not limited to the record before the tribunal, though a party's failure to raise evidence before the tribunal may affect its weight; the merits of the jurisdictional challenge were not decided. Costs$75,000 inclusive of disbursements and HST to the respondent, as agreed. | |||||||
| Mattamy (Downsview) Ltd. v. Urbancorp Downsview Park Development Inc. (Court Appointed Monitor of)2023 ONSC 3013 | 19 May 2023 | Commercial ListKimmel J. | Set asideset aside (s. 46(1)3 and 6) | Award set asideApplication granted; new arbitration directed | Hon. Frank J.C. Newbould, K.C. | 10 | $30,000 (agreed) |
The disputedevelopment consulting fees (CCAA monitor) What was askedSet aside the award under ss. 46(1)3 and 6. The groundThe arbitrator exceeded his jurisdiction by raising and deciding a new issue (s. 46(1)3) and, by refusing without reasons to admit CPA Handbook excerpts on that issue, denied a fair opportunity to present the case (s. 46(1)6). The resultApplication granted. The jurisdiction ground was rejected, but the award was set aside for procedural unfairness and the dispute sent to a new arbitration before a different arbitrator, the court making no assessment of whether the excluded evidence would have changed the result. Costs$30,000 partial indemnity, all inclusive, to Mattamy, as agreed. Award or ruling6 July 2022 The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| Ismail v. First York Holdings Inc.2023 ONCA 332 | 10 May 2023 | Court of AppealFeldman J.A. (Doherty and Trotter JJ.A. concurring) | Stay of actionappeal from the refusal of a stay (s. 7) | Stay refusedAppeal dismissed; the refusal of a stay upheld | $6,000 | ||
The disputeshare purchase agreements (oppression claim) What was askedAppeal from the refusal of a s. 7 stay of the action, with an alternative request for an adjournment to deliver a defence so that the summary judgment exception could be assessed. The groundThe mediation and arbitration clause in a share purchase agreement; separability under s. 17(2); the s. 7(6) appeal bar was raised against the appeal. The resultAppeal dismissed. The company named in the agreement was never incorporated, so there was no contract and no arbitration agreement; s. 7(6) did not bar the appeal because the refusal rested on a finding that there was no arbitration agreement; separability cannot make a clause survive a contract that never existed. Costs$6,000. The firm's articleStaying a Court Action in Favour of Arbitration in Ontario | |||||||
| All Communications Network of Canada, Co. v. Planet Energy Corp.2023 ONCA 319 | 8 May 2023 | Court of AppealThorburn J.A. (Lauwers and Paciocco JJ.A. concurring) | Set asideappeal from the dismissal of a set-aside application (Model Law) | Award upheldAppeal dismissed | 27 | $25,000 (agreed) | |
The disputeinternational commercial agreement (energy marketing) What was askedAppeal from the order dismissing Planet's application under art. 34 of the Model Law to set aside an ICDR award of $29,259,787 plus interest and granting ACN's application to recognize and enforce it. The groundPlanet said it was unable to present its case (document production, cross-examination and closing submissions) and that the award was contrary to public policy because it violated the Energy Consumer Protection Act, 2010. The resultAppeal dismissed. The onus on a due process challenge is high, no hearing de novo was required, the court will not reweigh the record, and the public policy defence was not made out; the dismissal of the set-aside application and the recognition and enforcement order stand. Costs$25,000 all inclusive to the respondent, as agreed. Award or ruling3 February 2021 The firm's articlesEnforcing an Arbitral Award in Ontario; Setting Aside an Arbitral Award in Ontario | |||||||
| Goberdhan v. Knights of Columbus2023 ONCA 327 | 5 May 2023 | Court of Appealvan Rensburg, Paciocco and Thorburn JJ.A. | Stay of actionappeal from the refusal of a stay (s. 7) | Stay refusedAppeal dismissed; the refusal of a stay upheld | $19,000 | ||
The disputeemployment (wrongful dismissal) What was askedAppeal from the dismissal (2022 ONSC 3788) of the defendant's motion to stay a wrongful dismissal action under s. 7(1). The groundA stay was said to follow wherever it is arguable that the dispute falls within the arbitral jurisdiction (Peace River, Uber); the respondent raised the s. 7(6) appeal bar. The resultAppeal dismissed. Section 7(6) did not bar the appeal because the motion judge found that there was no arbitration agreement, and this was a clear case in which the second and third field agent contracts containing the arbitration clauses failed for want of fresh consideration. Costs$19,000. The firm's articleStaying a Court Action in Favour of Arbitration in Ontario | |||||||
| Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Ltd.2023 ONCA 260 | 17 April 2023 | Court of AppealD.M. Brown J.A. (Fairburn A.C.J.O. and Sossin J.A. concurring) | Stay of actionappeal from a stay (ICAA, s. 9) | Action stayedAppeal dismissed; the stay upheld | $30,000 | ||
The disputedistribution agreement (unsigned) What was askedAppeal from the order staying the Ontario action under s. 9 of the International Commercial Arbitration Act, 2017 (Model Law, art. 8) in favour of arbitration in Wellington, New Zealand. The groundNo arbitration agreement existed, the distribution agreement never having been signed; the standard of proof for the existence of an arbitration agreement on a stay motion. The resultAppeal dismissed. The Peace River framework applies to stays under s. 9 of the ICAA, the "arguable case" standard governs the technical prerequisites, including whether an arbitration agreement exists, and the existence question needed a thorough review of competing evidence, so it was for the arbitrator. Costs$30,000. The firm's articleStaying a Court Action in Favour of Arbitration in Ontario | |||||||
| Taseko Mines Ltd. v. Franco-Nevada Corp.2023 ONSC 2055 | 17 April 2023 | Commercial ListPenny J. | Appealappeal of the award | Award set asideAppeal allowed | Gerald W. Ghikas, Q.C. | 12 | $95,000 to the appellant |
The disputegold streaming agreement (frustration) What was askedAppeal by Franco-Nevada from the 2022 award holding that the gold streaming agreement had been frustrated, and from the arbitrator's costs award. The groundThe arbitrator rejected binding Court of Appeal authority on reasonable foreseeability in finding that the government's refusal of environmental approval was a supervening event; the costs award was said to be unreasonable. The resultAppeal allowed on the frustration issue, the arbitrator's rejection of binding authority being unreasonable, so the costs appeal was not decided; the court said in passing that an award of reasonable legal fees without reference to any court scale would have been reasonable. Costs$95,000 partial indemnity, all inclusive, to Franco-Nevada, as the parties had agreed. Award or ruling5 April 2022 The firm's articlesCosts in a Commercial Arbitration in Ontario; Appealing an Arbitral Award in Ontario | |||||||
| Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C.2023 ONCA 245 | 13 April 2023 | Court of AppealZarnett J.A. (Thorburn and Copeland JJ.A. concurring) | Appealappeal from the refusal of leave (s. 45(1)) | Award upheldAppeal dismissed; leave to appeal unavailable | Marc Goldstein (president), John Keefe and Hon. Ian Binnie (dissenting in part) | 28 | |
The disputeconstruction contracts (ICC arbitration) What was askedAppeal from the dismissal of BIM's application for leave to appeal the award under s. 45(1); the respondent moved to quash the appeal. The groundWhether an agreement that disputes be "finally settled" by arbitration, read with the ICC Rules, precludes an appeal on a question of law; on the motion to quash, whether any appeal lies from a refusal of leave. The resultMotion to quash dismissed under the Denison Mines exception, the appeal being premised on the application judge's having mistakenly declined jurisdiction, and the appeal dismissed; "finally settled" means the same as "final and binding" and precludes appeals, so leave under s. 45(1) was unavailable. CostsBy written submissions if not agreed. Award or ruling9 December 2020 The firm's articlesAppealing an Arbitral Award in Ontario; Setting Aside an Arbitral Award in Ontario | |||||||
| Tianjin Dinghui Hongjun Equity Investment Partnership v. Du2023 ONSC 1808 | 20 March 2023 | Commercial ListKimmel J. | Enforcementrecognition and enforcement (Model Law, art. 35) | Enforcement refusedApplication dismissed | Shenzhen Court of International Arbitration tribunal (not named) | 19 | $160,000 to the respondents (net $95,000) |
The disputeguarantee (Shenzhen-seated award) What was askedRecognition and enforcement under art. 35 of the Model Law of a Shenzhen Court of International Arbitration award of about $120 million, with interest and costs, against two (2) Toronto guarantors. The groundThe respondents said they had no proper notice of the arbitration and were unable to present their case (art. 36(1)(a)(ii)), deemed service under the arbitral rules at a corporate address not being notice reasonably calculated to inform them; public policy and issue estoppel from the seat court's dismissal of their set-aside applications were also argued. The resultApplication dismissed under art. 36(1)(a)(ii). The respondents met their onus of showing that they did not receive proper notice and were unable to present their case, a law firm's acting without their authorization not curing the defect; their fresh evidence motion was dismissed. Costs$160,000 to the respondents on the application and $65,000 to the applicant on the fresh evidence motion, as agreed, a net $95,000. Award or ruling27 August 2021 The firm's articleEnforcing an Arbitral Award in Ontario | |||||||
| Canadian Soccer Assn. Inc. (c.o.b. Canada Soccer) v. Assn. de Soccer de Brossard2023 ONSC 1367 | 27 February 2023 | Superior CourtBell J. | Enforcementstay of the award pending a set-aside application (s. 50(5)) | Enforced pending challengeStay refused; interim enforcement order (s. 50(5)) | 2 | ||
The disputesports governance (youth club licence) What was askedCanada Soccer moved under s. 50(5)(b) for an interim stay of the SDRCC award pending its s. 46 application; ASB cross-moved under s. 50(5)(a) for an interim order enforcing the award. The groundThe RJR-MacDonald test (serious issue, irreparable harm, balance of convenience); "unclean hands" raised against enforcement. The resultStay refused and an interim order made under s. 50(5)(a) enforcing the award pending the application. There was no serious issue because the s. 46(1)6 grounds attacked the merits, no harm was shown, and the balance of convenience strongly favoured the award creditor. CostsBy written submissions if not agreed. Award or ruling7 January 2023 The firm's articleEnforcing an Arbitral Award in Ontario | |||||||
| Aquanta Group Inc. v. Lightbox Enterprises Ltd.2023 ONSC 971 | 8 February 2023 | Superior CourtAkbarali J. | Set asideset aside (s. 46(1)6); enforce (s. 50) | Award upheldSet-aside dismissed; enforcement granted | Hon. Frank J.C. Newbould, K.C. | 13 | $40,000 |
The disputecommercial dispute (alleged oral agreement) What was askedSet aside the award of January 19, 2022 and the procedural order refusing leave to amend the defence, under s. 46(1)6; the respondent cross-applied under s. 50 to enforce the awards. The groundThe applicant said it was not treated equally and fairly and was denied an opportunity to present its case because the arbitrator refused leave to plead negligent misrepresentation days before a peremptory hearing; insufficient reasons. The resultSet-aside application dismissed and the awards enforced. The refusal of a last-minute amendment was a procedural question squarely before the arbitrator, and any limit on the applicant's case flowed from its own choices; s. 46(1)6 protects a party from unfair conduct by an arbitrator and not from its own decisions. Costs$40,000 (the scale and the payee are not stated in the firm's extract). Award or ruling19 January 2022 The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| Costco Wholesale Corp. v. TicketOps Corp.2023 ONSC 573 | 23 January 2023 | Superior CourtVermette J. | Enforcementrecognition and enforcement (ICAA) | Award enforcedAwards recognized and enforced | Peter R. Day | 18 | |
The disputecommercial contract (ticketing services) What was askedRecognition and enforcement under the International Commercial Arbitration Act, 2017 of three (3) ICDR awards made in Seattle in 2021 and of the United States judgment confirming them, with payment in Canadian currency. The groundThe respondent said the awards were not for a definite amount, that the arbitration agreement was invalid under Washington law, that it was unable to present its case, that enforcement would offend public policy and overcompensate, and that the arbitrator was biased; it cross-moved to convert the application into an action. The resultAwards recognized and enforced, the grounds for refusal under the New York Convention and the Model Law being construed narrowly and none made out; the respondent was ordered to pay Canadian currency sufficient to purchase the amounts awarded with interest, and its cross-motion to convert the application into an action and consolidate it with three (3) Ontario actions was dismissed. CostsBy written submissions if not agreed. Award or ruling23 July 2021 The firm's articleEnforcing an Arbitral Award in Ontario | |||||||
| Tall Ships Development Inc. v. Brockville (City)2022 ONCA 861 | 13 December 2022 | Court of AppealHarvison Young J.A. (Doherty and Huscroft JJ.A. concurring) | Appealappeal from an order setting aside three awards | Award upheldAppeal allowed; the awards restored | William L. Neville | 46 | $40,000 to the appellant |
The disputedevelopment contracts with a municipality What was askedAppeal from the application judge's order setting aside three (3) arbitral awards, on an appeal under s. 45(2) on questions of law and under s. 46 for procedural unfairness, and directing a new arbitrator. The groundThe application judge was said to have characterized questions of mixed fact and law as extricable questions of law under s. 45(2) and to have treated the same substantive arguments as breaches of procedural fairness under s. 46. The resultAppeal allowed. None of the alleged errors was an extricable error of law, the questions were of mixed fact and law and not open to appeal under the parties' agreement, and there was no breach of procedural fairness under s. 46; the order setting aside the awards could not stand. Costs$40,000 inclusive of HST and disbursements to the appellant municipality, and the $40,000 awarded below to the respondent reversed and made payable to the municipality, as agreed. Award or ruling11 February 2019 The firm's articlesAppealing an Arbitral Award in Ontario; Setting Aside an Arbitral Award in Ontario | |||||||
| Tire Pit Inc. v. Augend 6285 Yonge Village Properties Ltd.2022 ONSC 6763 | 30 November 2022 | Superior CourtM. Vermette J. | Appealleave to appeal (s. 45(1)); set aside (s. 46(1)3 and 6) | Award upheldLeave refused; set-aside dismissed | Hon. J. Douglas Cunningham, Q.C. | 13 | $13,000 to the respondent |
The disputecommercial lease (fair market rent) What was askedLeave to appeal the award of October 29, 2021 under s. 45(1) on forty-eight (48) alleged errors of law, and an order setting the award aside under ss. 46(1)3 and 6. The groundThe arbitrator was said to have misread an earlier court decision on the renewal of the lease and to have lost jurisdiction through delay; the fairness arguments all concerned the merits. The resultApplication dismissed as without merit. The award dealt only with the dispute submitted, the determination of the fair market rent, the fairness complaints went to the decision rather than the process, a jurisdictional objection not raised before the arbitrator was precluded under s. 17(3), and no question of law warranting leave was shown. Costs$13,000 all inclusive, partial indemnity, to the landlord. Award or ruling29 October 2021 | |||||||
| Clayton v. Canada (Attorney General)2022 ONSC 6583 | 24 November 2022 | Superior CourtJ.T. Akbarali J. | Set asideset aside (Model Law, art. 34) | Award upheldApplication dismissed | NAFTA Chapter 11 tribunal of three | $100,000 (agreed) | |
The disputeinvestment treaty (NAFTA; quarry project) What was askedSet aside the damages award of a NAFTA Chapter 11 tribunal under art. 34 of the Commercial Arbitration Code. The groundExcess of jurisdiction, breach of natural justice and procedural fairness, and conflict with the public policy of Canada. The resultApplication dismissed. Reasonableness review of an arbitral decision has no place in the face of the authorities directing broad respect for arbitral tribunals, and the decision to assess damages for the loss of a chance of a fair environmental assessment rather than for the loss of the right to operate a quarry was not morally repugnant. Costs$100,000 all inclusive to Canada, as agreed. Appellate historyAffirmed, 2024 ONCA 581. The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| Azam v. Multani Custom Homes Ltd.2022 ONSC 6536 | 21 November 2022 | Superior CourtChang J. | Stay of actionstay of an action (s. 7; Tarion addendum) | Stay refusedMotion dismissed | $3,500 to the plaintiff | ||
The disputenew home purchase (Tarion addendum) What was askedStay of the purchaser's action under s. 7 in favour of arbitration under the Tarion addendum to the agreement of purchase and sale. The groundThe dispute fell within the arbitration clause, but the defendant's participation in the action and its delay were sufficient grounds under s. 7(2) to refuse the stay. The resultMotion dismissed and the stay refused; the plaintiff's late admission of the clause's existence and scope was reflected in the costs. Costs$3,500 all inclusive, partial indemnity, to the plaintiff. | |||||||
| Mensula Bancorp Inc. v. Halton Condominium Corporation No. 1372022 ONCA 769 | 10 November 2022 | Court of AppealZarnett J.A. (Benotto and Copeland JJ.A. concurring) | Set asideappeal from an order setting aside an award (s. 46(1)3) | Award upheldAppeal allowed; the award restored | L. Leslie Dizgun | $20,000 (agreed) | |
The disputecondominium (access to parking units) What was askedAppeal by the condominium corporation from the order setting aside the arbitrator's award under s. 46(1)3. The groundThe application judge held that the arbitrator had in effect amended the condominium declaration rather than interpreted it, and so decided a matter beyond the scope of the arbitration agreement. The resultAppeal allowed and the award restored. The arbitrator had authority to interpret the declaration and did so, which ends the inquiry under s. 46(1)3, since the correctness or reasonableness of the interpretation is irrelevant to jurisdiction (Alectra applied). Costs$20,000 inclusive of disbursements and taxes to the condominium corporation, as agreed. The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| Schickedanz v. Wagema Holdings Ltd.2022 ONSC 5315 | 23 September 2022 | Superior CourtA.P. Ramsay J. | Appealmotion to quash an appeal from a costs award | ProceduralMotion to quash dismissed; the appeal to proceed | Hon. Frank J.C. Newbould, K.C. | 11 | |
The disputecommercial arbitration costs award What was askedMotion to quash the appeal from the arbitrator's costs award for want of leave under s. 133(b) of the Courts of Justice Act. The groundWhether leave is required for an appeal as to costs only; whether the appeal was devoid of merit. The resultMotion dismissed. The parties had agreed on a broad right of appeal without a leave requirement for costs, s. 133(b) refers to a court and not to an arbitrator, and the appeal was not manifestly devoid of merit. The appeal was later dismissed on the merits (2023 ONSC 7219). CostsBy a conference call if not agreed. Award or ruling8 October 2021 The firm's articlesCosts in a Commercial Arbitration in Ontario; Appealing an Arbitral Award in Ontario | |||||||
| Optiva Inc. v. Tbaytel2022 ONCA 646 | 15 September 2022 | Court of AppealDoherty J.A. (Huscroft and Harvison Young JJ.A. concurring) | Set asideappeal from the dismissal of a set-aside application | Award upheldAppeal dismissed | 31 | $30,000 to the respondent | |
The disputecommercial contract (limitation of liability clause) What was askedAppeal from the dismissal (2021 ONSC 2929) of the application to set aside a partial award under ss. 17 and 46 and of the motion for leave to appeal under s. 45. The groundThe arbitrator's ruling permitting a summary judgment motion was said to be a jurisdiction ruling under s. 17(1) and beyond his authority; unequal and unfair treatment and non-compliance with ss. 19, 20 and 26 (ss. 46(1)6 and 7); reliance on a case not argued. The resultAppeal dismissed. The summary judgment ruling was procedural and not a ruling on jurisdiction, Optiva was denied no opportunity to present or challenge evidence, the case relied on had been before the arbitrator, and a refusal of leave under s. 45 is generally not appealable. Costs$30,000 inclusive of taxes and disbursements to Tbaytel. Award or ruling13 February 2020 | |||||||
| Iris Technologies Inc. v. Rogers Communications Canada Inc.2022 ONCA 634 | 2 September 2022 | Court of AppealB. Miller, Nordheimer and Sossin JJ.A. | Jurisdictionmotion to quash a leave motion (s. 17(9)) | No jurisdictionLeave motion quashed (s. 17(9)) | |||
The disputetelecommunications services (counterclaim) What was askedMotion to quash the responding party's motion for leave to appeal from the Superior Court's s. 17(8) decision, which had reversed the arbitrator's preliminary ruling on jurisdiction and dismissed the counterclaim. The groundSection 17(9) (no appeal from the reviewing court's decision); the responding party relied on s. 49 and said that a full record was needed. The resultMotion granted. The arbitrator ruled on the objection as a preliminary question under s. 17(7) and not in an award, so the review and any appeal are governed by s. 17, and s. 17(9) bars an appeal, consistently with United Mexican States v. Burr under the ICAA. CostsBy written submissions if not agreed. The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Irwin v. Protiviti, a Division of Robert Half Canada Inc.2022 ONCA 533 | 18 July 2022 | Court of AppealBenotto, Miller and Copeland JJ.A. | Stay of actionappeal from a stay (s. 7(6)) | Action stayedAppeal quashed (s. 7(6)); the stay stands | $10,000 | ||
The disputeemployment (constructive dismissal) What was askedAppeal from the order of Ramsay J. (2021 ONSC 7596) staying a constructive dismissal action under s. 7(1); the employer moved to quash the appeal under s. 7(6). The groundThe arbitration clause, which excluded costs and punitive damages, was said to be unconscionable and inconsistent with the Employment Standards Act, 2000 and the Human Rights Code, and its validity a question for the court. The resultAppeal quashed. The motion judge was entitled under s. 17(1) and the Dell and Uber line of cases to leave the unconscionability challenge, which needed a probing factual inquiry, to the arbitrator, none of the access to justice concerns of Heller being present, so s. 7(6) barred any appeal and the stay stands. Costs$10,000. The firm's articleStaying a Court Action in Favour of Arbitration in Ontario | |||||||
| Serbcan Inc. v. National Trust Co.2022 ONSC 2644 | 2 May 2022 | Superior CourtKoehnen J. | Appealappeal of a partial award and a security for costs award | Award upheldAppeals dismissed | Larry Banack | 12 | $50,187.37 to the respondents |
The disputemortgage enforcement claims (referred to arbitration) What was askedAppeals from the partial summary judgment award of April 23, 2021 and the security for costs award of July 6, 2021, under the court order that had referred the claims to arbitration. The groundThe standard of review, reasonableness being applied as binding under Sattva and Teal Cedar; alleged errors in dismissing time-barred claims and in increasing security for costs. The resultBoth appeals dismissed and the awards affirmed; the result would have been the same on a correctness standard. Costs$50,187.37 partial indemnity, inclusive of HST and disbursements, to the respondents. Award or ruling23 April 2021 The firm's articleAppealing an Arbitral Award in Ontario | |||||||
| D Lands Inc. v. KS Victoria and King Inc.2022 ONSC 1029 | 19 April 2022 | Commercial ListB. Dietrich J. | Appealleave to appeal (s. 45(1)); set aside (s. 46) | Award upheldLeave granted; appeal dismissed; set-aside dismissed | W.A. Derry Millar (chair), Hon. Frank J.C. Newbould, Q.C. and Jeffrey L. Davies, by majority | 10 | |
The disputeground lease rent reset What was askedLeave to appeal the majority award under s. 45(1) and, in the alternative, an order under s. 46 setting it aside. The groundErrors of law in interpreting the lease, including a failure to apply the governing principles of contractual interpretation and binding authority; alternatively an unreasonable exercise of the tribunal's mandate and jurisdiction (s. 46(1)). The resultLeave granted, because the agreement (the ICDR Rules, silent on appeals) did not exclude appeals and the alleged errors affected the valuation by up to $31 million; the appeal dismissed on a correctness standard, no error of law being shown; and the s. 46 application dismissed as a second kick at the can raising no true jurisdictional issue. CostsBy written submissions if not agreed. Award or ruling4 June 2021 The firm's articleAppealing an Arbitral Award in Ontario | |||||||
| Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C.2022 ONSC 1900 | 11 April 2022 | Commercial ListPattillo J. | Set asideset aside (s. 46); leave to appeal (s. 45) | Award upheldApplication dismissed; leave refused | Marc Goldstein (president), John Keefe and Hon. Ian Binnie (dissenting in part) | 16 | |
The disputeconstruction contracts (ICC arbitration) What was askedSet aside the ICC majority award of about $70 million under s. 46 for excess of jurisdiction and unfair treatment, or alternatively leave to appeal on questions of law under s. 45(1). The groundExcess of jurisdiction over the disputed claims (s. 46(1)3); the president having descended into the arena and the majority having relied on theories not argued (ss. 46(1)6 and 7); errors of law (s. 45). The resultDismissed on every ground. The jurisdictional objection had been waived under ss. 4 and 17(5) and the ICC Rules and was in any event unfounded, there was no procedural unfairness, and the words "finally settled" in the arbitration clause precluded any appeal, so leave under s. 45(1) was unavailable. CostsThe parties directed to resolve costs within thirty (30) days, failing which a case conference. Award or ruling9 December 2020 Appellate historyAffirmed, 2023 ONCA 245. The firm's articlesSetting Aside an Arbitral Award in Ontario; Appealing an Arbitral Award in Ontario | |||||||
| Hornepayne First Nation v. Ontario First Nations (2008) Limited Partnership2022 ONCA 299 | 8 April 2022 | Court of AppealMacPherson, Paciocco and George JJ.A. | Jurisdictionappeal without leave from a s. 17(8) decision | Jurisdiction upheldAppeal quashed (no leave under s. 49) | Clifford Lax | 20 | $7,500 to the moving party |
The disputelimited partnership agreement (gaming revenue) What was askedAppeal, brought without leave, from Fitzpatrick J.'s decision on the s. 17(8) application (2021 ONSC 5534). The groundSection 49 requires leave to appeal, sought within fifteen (15) days under rule 61.03.1; the appellant had done neither. The resultAppeal quashed in a two-paragraph oral judgment because leave under s. 49 was required and had not been sought in time, so the decision upholding the arbitrator's jurisdiction stands. Costs$7,500 inclusive of disbursements and HST to the moving party. Award or ruling20 August 2020 The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| 1107051 Ontario Ltd. v. GG Kingspa Enterprises Limited Partnership2022 ONSC 1847 | 25 March 2022 | Commercial ListT.J. McEwen J. | Jurisdictions. 17(8) (dispute outside the agreement) | No jurisdictionApplication granted; the ruling set aside | agreed in advance | ||
The disputeco-tenancy real estate development (deadlock) What was askedUnder s. 17, an order overturning the arbitrator's preliminary ruling that he had jurisdiction and a declaration that he lacks jurisdiction over the dispute. The groundCorrectness; the business dispute over whether the project should include a hotel did not arise under the agreement, which required unanimous management committee decisions, so deadlock was what the parties had bargained for. The resultApplication granted. The arbitrator's ruling was set aside and a declaration made that he has no jurisdiction over the claim; the court said it would have preferred to refer the matter back to the arbitrator but had no power under ss. 17, 45 or 46(8) to do so. CostsThe parties had agreed on the payment of costs regardless of the result, so no costs order was needed. The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Ledsham v. Air Canada Pilots Assn.2022 ONSC 1877 | 24 March 2022 | Divisional CourtCorbett J. | Enforcementappeal from an enforcement order (s. 50(3)) | Award enforcedAppeal dismissed (rule 2.1) | Matthew Wilson | 8 | no costs |
The disputeassociation membership (expulsion) What was askedAppeal from the Superior Court's order under s. 50(3) enforcing two (2) awards made under the association's constitution, which expelled a member. The groundThe appellant sought to attack the merits of awards he had never appealed or sought to set aside within the thirty (30) day period; none of the s. 50(3) exceptions applied. The resultAppeal dismissed under rule 2.1 as frivolous, vexatious and an abuse of process. An unchallenged award binds the parties and is enforceable, and the enforcing court may neither inquire into its merits nor entertain a collateral attack. CostsDismissed without costs. Award or ruling13 July 2021 The firm's articleEnforcing an Arbitral Award in Ontario | |||||||
| PCL Constructors Canada Inc. v. Johnson Controls Canada LP2022 ONSC 1642 | 15 March 2022 | Commercial ListB.A. Conway J. | Jurisdictions. 17(8) (conditions precedent) | Jurisdiction upheldApplications dismissed | David McCutcheon and Duncan Glaholt (two arbitrations) | ||
The disputeP3 construction defects (facility co-ordination agreements) What was askedTwo (2) applications under s. 17(8) to overturn the arbitrators' rulings that they had jurisdiction over construction defect claims under facility co-ordination agreements; the respondent cross-applied for declarations about a "reconsideration right." The groundThe pre-arbitration steps in the agreements (defect reports) were said to be conditions precedent to jurisdiction, and the arbitrators' jurisdiction to be limited to deciding whether an alleged defect was a construction defect; correctness standard. The resultApplications dismissed. Reviewing on a correctness standard, the court held that both arbitrators were right that the contractual steps were a road map and not conditions precedent, and that their jurisdiction extended to consequential relief and quantum; the cross-applications were dismissed as premature. CostsA case conference to settle the process for determining costs, if not agreed. The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Nelson v. United Mexican States2022 ONSC 1193 | 16 February 2022 | Commercial ListPenny J. | Set asideset aside (Model Law, art. 34(2)(a)(ii)) | Award upheldApplication dismissed | NAFTA Chapter 11 tribunal of three | 20 | $100,000 (agreed) |
The disputeinvestment treaty (NAFTA; telecommunications) What was askedSet aside under art. 34(2)(a)(ii) of the Model Law the award of June 5, 2020, as corrected on July 31, 2020. The groundThe applicant said he was unable to present his case, the award resting on a theory not pleaded and his expert evidence having been ignored. The resultApplication dismissed. The tribunal's reasons showed that it considered the applicant's evidence and arguments. Costs$100,000 all inclusive to Mexico, as agreed. Award or ruling5 June 2020 The firm's articlesEnforcing an Arbitral Award in Ontario; Setting Aside an Arbitral Award in Ontario | |||||||
| Electek Power Services Inc. v. Greenfield Energy Centre Limited Partnership2022 ONSC 894 | 8 February 2022 | Superior CourtPerell J. | Jurisdictions. 17(8) (no arbitration agreement) | No jurisdictionApplication granted; the ruling set aside | Earl A. Cherniak, Q.C., William G. Horton and J. Brian Casey | 11 | the arbitration and the application (2022 ONSC 2437) |
The disputepurchase order (power services) What was askedSet aside, under s. 17(8), the panel's preliminary ruling that it had jurisdiction. The groundNo arbitration agreement existed, the purchase order terms containing the arbitration clause never having been a settled contract or incorporated by reference; a s. 17(8) application is a hearing de novo and not a judicial review. The resultApplication granted on a hearing de novo. No arbitration agreement had been contracted for, so the panel lacked jurisdiction and its ruling was set aside; the court noted that its decision could be appealed, the s. 17(9) bar not applying. CostsThe costs of the arbitration hearing itself, the tribunal having made no costs award, as well as the costs of the application, in a separate endorsement (2022 ONSC 2437). Award or ruling5 March 2021 | |||||||
| Alberta Cricket Association v. Alberta Cricket Council2021 ONSC 8451 | 23 December 2021 | Superior CourtPerell J. | Set asideset aside (s. 46) | Award set asideApplication granted; new arbitration directed | Janice Johnston | 9 | |
The disputesports governance (cricket) What was askedSet aside under s. 46 the award of March 23, 2021 and the supplementary award. The groundInadequate reasons on the central issue (s. 38(1)); the other grounds were not decided. The resultApplication granted. The awards were set aside for want of reasons on the central issue and a new arbitration before a new arbitrator was directed under the Sport Dispute Resolution Code. CostsBy written submissions if not agreed. Award or ruling23 March 2021 The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| Toronto Standard Condominium Corp. No. 2364 v. Toronto Standard Condominium Corp. No. 24422021 ONSC 7689 | 22 November 2021 | Superior CourtF.L. Myers J. | Enforcementenforcement (s. 50); interim injunction | Award enforcedOrder enforcing the award | R.M. Rosenblatt | 15 | no costs |
The disputecondominium (shared facilities) What was askedAn order enforcing the award of August 28, 2020 under s. 50, and interim or interlocutory injunctive relief pending the arbitration of the remaining issues. The groundEntitlement to enforcement was not contested; the remaining issues were ones the parties had agreed to arbitrate and were compensable in money. The resultOrder enforcing the award granted without contest. The court declined to grant interim or interlocutory injunctive relief pending the arbitration of the remaining issues, which were all expressed in money and for the arbitrator. CostsNo costs on either application. Award or ruling28 August 2020 | |||||||
| Jencel 407 Yonge Street Inc. v. Bright Immigration Inc.2021 ONSC 6030 | 10 September 2021 | Superior CourtAkbarali J. | Stay of actionstay of a lease arrears action (s. 7) | Stay refusedMotion dismissed | $5,000 | ||
The disputecommercial lease arrears What was askedStay of the landlord's action for arrears under s. 7 in favour of the lease's arbitration provisions. The groundThe first four (4) Haas questions favoured a stay; the landlord invoked the exception in s. 7(2)5 for a matter that is a proper one for summary judgment. The resultStay refused under s. 7(2)5. The accounting and additional rent issues could be resolved on summary judgment on the Hryniak standard, and an arbitration before three (3) arbitrators would have been an impractical and disproportionate alternative. Costs$5,000. The firm's articleStaying a Court Action in Favour of Arbitration in Ontario | |||||||
| Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation2021 ONCA 592 | 1 September 2021 | Court of AppealJamal J.A. | Appealsecond appeal, with leave (s. 49) | Award upheldAppeals dismissed | Hon. Stephen T. Goudge, Q.C. (chair), Stan G. Fisher, Q.C. and John Campion (dissenting) | 29 | |
The disputegaming revenue sharing agreement What was askedAppeals by Ontario and OLG, with leave under s. 49, from the dismissal (2020 ONSC 1516) of their appeals under s. 45 from the majority award on the gaming revenue sharing agreement. The groundThe appeal judge was said to have applied a reasonableness standard to the majority's interpretation of the agreement and to its damages award, when after Vavilov the appellate standards should apply; extricable errors of law in contractual interpretation were alleged. The resultAppeals dismissed. It was unnecessary to decide whether Vavilov displaced the Sattva and Teal Cedar reasonableness standard, because the appeal judge did not err on either standard, and the appellants largely advanced questions of contractual interpretation, which are questions of mixed fact and law attracting deference. CostsBy written submissions if not agreed. Award or ruling27 March 2019 The firm's articleAppealing an Arbitral Award in Ontario | |||||||
| Fogler, Rubinoff LLP v. Houle2021 ONSC 5626 | 19 August 2021 | Superior CourtM. Vermette J. | Enforcementenforce a costs award (s. 50); set aside (s. 46); leave (s. 45) | Award enforcedEnforcement granted; the cross-application dismissed | Ronald Dash | 7 | $5,525.47 |
The disputeassessment of a law firm's accounts What was askedJudgment under s. 50 enforcing a costs award of $130,485 made after a five (5) day arbitration; the award debtors cross-applied to set it aside under s. 46(1)3 or, alternatively, for leave to appeal under s. 45(1). The groundThe arbitrator was said to have exceeded the scope of the agreement by weighing relative success, unproven allegations and unsuccessful motions in fixing costs (s. 46(1)3); the alleged errors of law were questions of mixed fact and law, and the ADR Chambers rules excluded any appeal. The resultEnforcement granted and the debtors ordered to pay $130,485; the cross-application dismissed, costs being within the scope of the arbitration agreement and the alleged errors not being questions of law. Costs$5,525.47, nominal, the self-represented law firm having shown no lost opportunity; substantial indemnity refused (costs endorsement, 2021 ONSC 6064). Award or ruling25 January 2021 The firm's articlesCosts in a Commercial Arbitration in Ontario; Enforcing an Arbitral Award in Ontario | |||||||
| Hornepayne First Nation v. Ontario First Nations (2008) Limited Partnership2021 ONSC 5534 | 13 August 2021 | Superior CourtFitzpatrick J. | Jurisdictions. 17(8) (authority to sign) | Jurisdiction upheldApplication dismissed | Clifford Lax | 12 | partial indemnity to the respondent |
The disputelimited partnership agreement (gaming revenue) What was askedAn application under s. 17(8), heard de novo, challenging the arbitrator's award of August 20, 2020 that he had jurisdiction. The groundNo valid agreement, the person who signed as Chief being said to have lacked authority; a reasonable apprehension of bias. The resultApplication dismissed. The First Nation was a signatory to the agreement, the arbitrator was correct that he had jurisdiction, and no bias was shown. CostsPartial indemnity costs to the partnership, the quantum by submissions if not agreed. Award or ruling20 August 2020 Appellate historyAppeal quashed for want of leave under s. 49, 2022 ONCA 299. The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Russian Federation v. Luxtona Limited2021 ONSC 4604 | 30 June 2021 | Divisional CourtCorbett J. (MacLeod R.S.J. and Kristjanson J. concurring) | Jurisdictionthe evidence admissible on a jurisdiction challenge (arts. 16(3) and 34) | ProceduralAppeal allowed; fresh evidence admissible on a de novo hearing | $75,000 (agreed) | ||
The disputeinvestment treaty (Energy Charter Treaty; Toronto seat) What was askedAppeal, with leave, from the ruling that Russia could not file fresh evidence on its application to set aside the tribunal's interim award on jurisdiction. The groundThe application under arts. 16(3) and 34 of the Model Law is a hearing de novo in which the court decides the jurisdictional question on the evidence the parties choose to put before it. The resultAppeal allowed and the ruling set aside. The court application to decide the tribunal's jurisdiction is a hearing de novo, in keeping with the international consensus. Costs$75,000 inclusive to Russia for the appeal and the leave motion, as agreed. Appellate historyAffirmed, 2023 ONCA 393. The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Toronto Standard Condominium Corp. No. 1466 v. Weinstein2021 ONCA 470 | 28 June 2021 | Court of AppealDoherty, Feldman and Benotto JJ.A. | Enforcementmotion to quash an appeal (s. 49) | Award enforcedAppeal quashed; leave refused (s. 49) | no costs | ||
The disputecondominium (pipe replacement; lien) What was askedMotion to quash the unit owner's appeal from the decision (2021 ONSC 1306) on the enforcement application and his out-of-time set-aside application; the owner was then allowed to move for leave to appeal on the motion materials. The groundWant of jurisdiction, s. 49 requiring leave of the Court of Appeal; the leave criteria were not met. The resultAppeal quashed for want of jurisdiction because s. 49 requires leave; leave to appeal refused on the motion materials, without reasons, and no costs. CostsNo costs. Appellate historyLeave to appeal to the Supreme Court of Canada refused. | |||||||
| Optiva Inc. v. Tbaytel2021 ONSC 2929 | 20 April 2021 | Superior CourtW.D. Newton J. | Set asideset aside (ss. 17 and 46); leave to appeal (s. 45) | Award upheldApplication dismissed; leave refused | 14 | ||
The disputecommercial contract (limitation of liability clause) What was askedSet aside the partial award of February 13, 2020 under ss. 17 and 46, and leave to appeal it under s. 45, on the ground that the arbitrator should not have adopted a summary judgment procedure. The groundThe arbitrator's procedural ruling of November 21, 2019 allowing a summary judgment motion was said to be a ruling on jurisdiction; it was not challenged within the thirty (30) days allowed by s. 17(8) but only after the partial award. The resultApplication dismissed. Objections to jurisdiction and procedure are to be determined at the outset and not after the award, and the applicant, which did not challenge the procedural ruling until after the partial award, was out of time. CostsBy written submissions if not agreed. Award or ruling13 February 2020 Appellate historyAffirmed, 2022 ONCA 646. | |||||||
| Kingston Automation Technology Inc. v. Montebello Packaging2021 ONSC 2684 | 9 April 2021 | Superior CourtMew J. | Enforcementstay of enforcement pending a challenge (s. 50(5)(b)) | Enforcement not stayedStay of enforcement refused (s. 50(5)) | Hon. Douglas Cunningham, Q.C. | 2 | reserved |
The disputecommercial contract (equipment) What was askedA stay of the awards of February 11 and March 22, 2021, and of the arbitration generally, pending the award debtor's motion for leave to appeal under s. 45 and its application to set aside under s. 46. The groundWhether s. 50(3) creates a presumption in favour of a stay; the RJR-MacDonald test of a serious question, irreparable harm and the balance of convenience. The resultStay refused. Section 50(5) qualifies s. 50(3) and leaves a discretion governed by RJR-MacDonald; serious questions existed, but irreparable harm was not shown and the balance of convenience favoured the award creditor, the disputed amounts being held in trust, and a stay of the arbitration itself had to be sought from the arbitrator under ss. 17(1) and 20(1). CostsReserved to the judge hearing the application. Award or ruling11 February 2021 | |||||||
| Bergmanis v. Diamond2021 ONSC 2375 | 26 March 2021 | Superior CourtW.S. Chalmers J. | Appealappeal of a procedural ruling and costs (s. 45) | Award upheldAppeal and cross-appeal dismissed | Harvey Spiegel | 21 | |
The disputereferral fee agreement between law firms What was askedAppeal under s. 45 from the arbitrator's decision quashing summonses issued to non-party lawyers and from his costs award; cross-appeal by two (2) of the non-party firms on costs. The groundThe appeal raised no question of law and leave under s. 45(1) was not sought; the cross-appeal said that wholly successful non-parties should have had full indemnity costs. The resultBoth dismissed. The court had no jurisdiction to hear the appeal, which was not on a question of law and for which leave had not been sought, and the arbitrator's award of equal counsel fees to each of the three (3) sets of lawyers was within the range of reasonable outcomes. CostsThe responding lawyers presumptively entitled to the costs of the appeal and the appellants to the costs of the cross-appeal, by written submissions if not agreed. Award or ruling12 June 2019 The firm's articlesAppealing an Arbitral Award in Ontario; Costs in a Commercial Arbitration in Ontario | |||||||
| Zenith Aluminum Systems Ltd. v. 2335945 Ontario Inc. (c.o.b. Momentum Developments)2021 ONSC 1128 | 24 February 2021 | Superior CourtGlustein J. | Enforcementenforcement (s. 50); stay of execution | Award enforcedJudgment on the awards; stay of execution refused | Glenn Ackerley | 18 | $13,000 (agreed) |
The disputeconstruction payment dispute What was askedEnforcement under s. 50 of an award of $339,000 and an award of interest and costs; the award debtor cross-applied under s. 106 of the Courts of Justice Act and rule 20.08 for a stay of execution pending its breach of trust action. The groundThe debtor consented to enforcement; a stay of execution is available in principle through s. 50(8), which treats the award as a final judgment, but only in very rare circumstances (Carlisle); rule 20.08 did not apply. The resultJudgment granted on both awards, and the application to stay execution pending the breach of trust action dismissed under both the Carlisle and the RJR-MacDonald tests. Costs$13,000 partial indemnity, inclusive of taxes and disbursements, to the award creditor, as agreed. Award or ruling31 August 2019 The firm's articleEnforcing an Arbitral Award in Ontario | |||||||
| Toronto Standard Condominium Corp. No. 1466 v. Weinstein2021 ONSC 1306 | 22 February 2021 | Superior CourtB. Davies J. | Set asideset aside (s. 46); enforce (s. 50) | Award upheldSet-aside dismissed; judgment enforcing the award | 16 | ||
The disputecondominium (pipe replacement; lien) What was askedThe condominium corporation applied for judgment enforcing the award under s. 50; the unit owner applied to set it aside under s. 46(1) for lack of jurisdiction, a reasonable apprehension of bias, and fraud or corruption. The groundJurisdiction and bias; fraud or corruption relied on to avoid the thirty (30) day limit in s. 47. The resultSet-aside application dismissed as out of time under s. 47(1), which the court cannot extend and which a bare allegation of fraud or corruption does not engage, and on the merits, there being no bias, corruption or fraud; judgment enforcing the award granted under s. 50(3), with the lien upheld. CostsBy written submissions if not agreed. Award or ruling10 October 2019 Appellate historyAppeal quashed and leave to appeal refused, 2021 ONCA 470; leave to appeal to the Supreme Court of Canada refused. The firm's articlesSetting Aside an Arbitral Award in Ontario; Enforcing an Arbitral Award in Ontario | |||||||
| Parc-IX Ltd. v. Manufacturers Life Insurance Co.2021 ONSC 1252 | 18 February 2021 | Commercial ListKoehnen J. | Set asideset aside (s. 46(1)3); enforce (s. 50) | Award upheldApplication dismissed; enforcement granted | P. David McCutcheon | 13 | $45,000 (agreed) |
The disputeground lease rent reset What was askedSet aside the rent reset award of February 3, 2020, and the costs award of almost $900,000, for excess of jurisdiction; the landlord cross-applied to recognize and enforce the award. The groundThe arbitrator was said to have exceeded his jurisdiction by failing to take into account legal regulations affecting the property, as an earlier court decision required. The resultApplication dismissed and the award enforced. Read as a whole, the arbitrator's reasons showed that he took the regulations into account but found that they did not apply, a factual determination he was entitled to make; the parties having excluded appeals, whether he was right or wrong was beyond the court's review, and no reason was shown to doubt his jurisdiction to make the costs award. Costs$45,000 including HST and disbursements to Manulife, as agreed. Award or ruling3 February 2020 The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| United Mexican States v. Burr2021 ONCA 64 | 2 February 2021 | Court of AppealLauwers J.A. (Miller and Nordheimer JJ.A. concurring) | Jurisdictionmotion to quash an appeal (art. 16(3)) | Jurisdiction upheldAppeal quashed (Model Law, art. 16(3)) | Gaetan Verhoosel, Gary Born and Raul Vinuesa | 19 | $9,000 (agreed) |
The disputeinvestment treaty (NAFTA; gaming businesses) What was askedMotion to quash Mexico's appeal from the dismissal (2020 ONSC 2376) of its application under s. 11 of the ICAA and arts. 16 and 34 of the Model Law to set aside the tribunal's partial award on jurisdiction. The groundUnder art. 16(3) the tribunal ruled on jurisdiction as a preliminary question, so the application judge's decision is "subject to no appeal"; the label "partial award" does not engage art. 34 or a right of appeal. The resultAppeal quashed. The tribunal's ruling was on a preliminary question of jurisdiction under art. 16(3), so no appeal lies from the application judge's decision. Costs$9,000 all inclusive to the moving parties, as agreed. Award or ruling19 July 2019 The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Abittan v. Wilcox2020 ONSC 6836 | 9 November 2020 | Superior CourtMyers J. | Enforcementenforcement (s. 50) | Award enforcedApplication granted | $4,968 to the applicant | ||
The disputeletter of intent (binding effect) What was askedJudgment under s. 50 enforcing the award declaring a letter of intent binding and the costs award of about $46,000. The groundThe respondent resisted under s. 50(7) and on a claim of set-off; the applicant relied on the mandatory terms of s. 50(3), no appeal or set-aside application having been brought. The resultApplication granted. Section 50(7) is narrowly drawn and is neither a further appeal route nor a review of the merits, and the respondent's possible claims were no basis to decline enforcement under the mandatory terms of s. 50(3). Costs$4,968 all inclusive to the applicant (costs endorsement, 2020 ONSC 7179). The firm's articlesEnforcing an Arbitral Award in Ontario; Costs in a Commercial Arbitration in Ontario | |||||||
| Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 16362020 ONCA 612 | 1 October 2020 | Court of AppealJamal J.A. (Strathy C.J.O., MacPherson, Pardu and Huscroft JJ.A. concurring) | Stay of actionmotion to quash an appeal (s. 7(6)) | ProceduralMotion to quash dismissed; the appeal to proceed | $20,000 (the motion) | ||
The disputecondominium cost-sharing agreement What was askedMotion to quash, under s. 7(6), an appeal from an order refusing to stay a court application in favour of arbitration under the parties' reciprocal agreement and s. 132 of the Condominium Act, 1998. The groundWhether s. 7(6) bars any appeal from a decision under s. 7, and whether the Huras line of cases survived TELUS Communications Inc. v. Wellman. The resultMotion to quash dismissed by a five-judge panel. The Huras line of cases was correctly decided; because the motion judge refused to stay any part of the proceeding, a disposition unavailable under s. 7(5), his decision was not made under s. 7 and s. 7(6) did not bar the appeal, which lay to the Court of Appeal as an appeal from a final order. The appeal itself was decided separately. Costs$20,000 all inclusive to the responding parties, as agreed (the motion to quash). The firm's articleStaying a Court Action in Favour of Arbitration in Ontario | |||||||
| United Mexican States v. Burr2020 ONSC 2376 | 20 July 2020 | Commercial ListDietrich J. | Jurisdictionset aside a jurisdiction ruling (arts. 16 and 34) | Jurisdiction upheldApplication dismissed | Gaetan Verhoosel, Gary Born and Raul Vinuesa | 12 | $100,000 (agreed) |
The disputeinvestment treaty (NAFTA; gaming businesses) What was askedSet aside, under s. 11 of the ICAA and arts. 16 and 34 of the Model Law, the tribunal's partial award holding that it had jurisdiction over all but one of the claimants' claims. The groundThe tribunal was said to lack jurisdiction, including over additional claimants, under arts. 1119 and 1121 of NAFTA; Mexico bore the burden of showing that the tribunal was incorrect. The resultApplication dismissed. Mexico had not shown that the tribunal was incorrect in its interpretation of arts. 1119 and 1121 or in its conclusion that it had jurisdiction over the claimants and their claims, and the tribunal made no jurisdictional error in its treatment of the submissions of the United States and Canada under art. 1128. Costs$100,000 inclusive of disbursements and HST to the respondents, as agreed. Award or ruling19 July 2019 Appellate historyAppeal quashed, 2021 ONCA 64. The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Cricket Canada v. Alberta Cricket Council2020 ONSC 3776 | 18 June 2020 | Commercial ListKoehnen J. | Jurisdictions. 17(8) (sport tribunal) | Jurisdiction upheldApplication dismissed | Janice Johnston | 2 | |
The disputesports governance (cricket) What was askedA challenge under s. 17(8) to the jurisdiction of the Sport Dispute Resolution Centre of Canada and its arbitrator, whose interim award of April 22, 2020 held that she had jurisdiction. The groundThe arbitrator and the Centre were said to lack jurisdiction over the dispute; correctness standard; the applicant's earlier answer had not contested jurisdiction. The resultApplication dismissed. The arbitrator was correct in assuming jurisdiction and her interim award was upheld. Award or ruling22 April 2020 The firm's articleChallenging an Arbitrator's Jurisdiction in Ontario | |||||||
| Freedman v. Freedman Holdings Inc.2020 ONSC 2692 | 5 May 2020 | Superior CourtKane J. | Set asideset aside (s. 46(1)); enforce a costs award (s. 50) | Award upheldApplication dismissed, save a remittal on interest; enforcement granted | James B. Chadwick, Q.C. | 24 | |
The disputefamily holding companies (dismissal; shareholder claims) What was askedSet aside under s. 46(1) the arbitrator's decision of April 30, 2018 and his costs decision of July 12, 2018; the companies cross-applied to enforce the costs award. The groundUnequal treatment and denial of an opportunity to present a case (s. 46(1)6), excess of jurisdiction (s. 46(1)3) and other grounds; reasonableness applied to most grounds and correctness to procedural fairness. The resultApplication dismissed on every ground but one, the award of six (6) per cent interest being remitted to the arbitrator for reasons; the companies' application to enforce the costs award of $297,454 with interest was granted. CostsBy written submissions. Award or ruling30 April 2018 The firm's articleSetting Aside an Arbitral Award in Ontario | |||||||
| Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation2020 ONSC 1516 | 31 March 2020 | Commercial ListHainey J. | Appealappeal of the award (s. 45) | Award upheldAppeals dismissed | Hon. Stephen T. Goudge, Q.C. (chair), Stan G. Fisher, Q.C. and John Campion (dissenting in part) | 12 | |
The disputegaming revenue sharing agreement What was askedAppeals by OLG and Ontario under s. 45 from the majority award of March 27, 2019 on the revenue streams to be shared under the gaming revenue sharing agreement. The groundAlleged errors in the interpretation of the agreement and in the damages award; the standard of review, reasonableness being applied. The resultAppeals dismissed. The majority's interpretation and its damages award were reasonable and, on the interpretation, correct. CostsThe parties were urged to settle costs, to be fixed at an attendance if not agreed. Award or ruling27 March 2019 Appellate historyAffirmed, 2021 ONCA 592. The firm's articleAppealing an Arbitral Award in Ontario | |||||||
How a result is counted. The result column records what the decision left standing. The award or the arbitration was upheld where the court stayed the action, confirmed the arbitrator's jurisdiction, dismissed the appeal or the set-aside application, refused leave, or enforced the award; the court intervened where it refused the stay, found no jurisdiction, allowed the appeal, set the award aside or sent it back, or refused enforcement; in part where the award was varied or set aside in part; and procedural where the decision settled a point of procedure (whether an appeal lies, what evidence is admissible) without deciding the application. For an appeal from a decision on one of these applications, the result is the state of the award or the arbitration after the appeal, and the line below it gives the appeal's own disposition. Months counts from the date of the award or ruling under challenge to the date of the court's decision, where the reasons give both dates.
The table is a record of what the courts have published, read with the notes below. It is not a prediction, and a party deciding whether to challenge or to enforce an award should take advice on its own facts.
Reported decisions, not every application. Many applications settle, are abandoned, or are decided in a short endorsement that is never published. What appears here is what the courts released with reasons, and published reasons lean toward the contested and the novel, so the rates in the tiles describe the reported cases rather than every application brought. Nor is the table a complete list of the reported decisions; it holds the decisions the firm has read, and it is added to as further decisions are reported and read.
What is left out. Applications for interim measures (s. 8), the appointment or removal of an arbitrator (ss. 10 and 13), costs-only endorsements, family arbitrations, and the statutory arbitrations between insurers under the Insurance Act are not in the table, which is confined to the five (5) applications named in the heading, arising from commercial and civil arbitrations.
Leave and the merits are different stages. Where an appeal needs leave, a decision refusing leave ends the matter, and a decision granting leave decides nothing about the award. Both appear as rows, labelled as what they were, and where one judgment decided the leave motion and the appeal together, the result shown is the result of the appeal.
Appeals from these decisions are their own rows. A set-aside application dismissed in the Superior Court and the Court of Appeal's decision on the appeal from it are two rows, linked in the detail of each. Count the Court of Appeal's rows alone, by the court filter, to see how the appellate court has dealt with the cases that reached it.
Two Acts, one table. A domestic arbitration is governed by the Arbitration Act, 1991; an international commercial arbitration by the International Commercial Arbitration Act, 2017, which adopts the Model Law. The grounds and the periods differ, and the detail of each row names the provision the court applied.
Costs are as the reasons state them. The costs column gives the amount and the scale where the decision or a later costs endorsement reports them, and is blank where costs were reserved, left to written submissions, or decided in reasons that were not published. A blank is not an order that no costs were payable.
The arbitrator is named where the reasons name the arbitrator. Some reports refer only to "the arbitrator" or "the tribunal," and the column is then blank. Naming the arbitrator records who decided the arbitration; it implies nothing about the arbitrator's work, since the court's rulings concern jurisdiction, procedure and questions of law, and a decision that an award stands is the usual result.
Months are a measure of the court's part only. The count runs from the award or ruling to the court's decision; it does not include the arbitration itself, and it depends on when the application was brought as much as on the court.
Read in full. Each decision was read in full, in the report as published, for the firm's arbitration articles or for this table, and the case name links to the public report on CanLII. Appellate history is noted in the detail where the firm is aware of it, and a reader relying on a decision should note it up before citing it.
The statutes are linked to e-Laws; the articles set out the law behind each kind of application, with the leading decisions.
Updated 28 October 2026. The firm acts for parties in arbitrations seated in Ontario and in the court applications that follow them, on both sides.
