Appealing an Arbitral Award in Ontario

An arbitral award made under the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”), is meant to end the dispute. Section 37 provides that “[a]n award binds the parties, unless it is set aside or varied under section 45 or 46 (appeal, setting aside award),” and s. 6 directs the court not to intervene in matters governed by the Act except for the four (4) purposes it lists, the last of which is “[t]o enforce awards.” An appeal is not one of those purposes, and the Act gives the losing party no general right to one. What it gives is s. 45, which allows an appeal to the Superior Court of Justice on the terms the parties have agreed, and, where they have agreed nothing, on a question of law with leave. The Court of Appeal described the starting point in Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254 (“Alectra”) at ¶ 20, stating that “[t]he starting point in exercising the court’s role under the Arbitration Act, 1991 is the recognition that appeals from private arbitration decisions are neither required nor routine.”

The practical consequence is that the right of appeal is decided twice, once when the arbitration clause is drafted and once when the award arrives. A clause that says the award is “final and binding” takes the appeal away. A clause that says nothing leaves a narrow appeal on a question of law, which the court will hear only if it grants leave, and which it will decide on a standard of review that the Superior Court has been debating since the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”). A clause that provides for an appeal on questions of law, or on questions of fact and mixed fact and law, gives the parties the appeal they bargained for. Whichever regime applies, the appeal must be commenced within thirty (30) days after the award is received, the court cannot extend that period, and a party who misses it is left with the ten (10) grounds for setting aside in s. 46, which are the subject of our article on setting aside an arbitral award in Ontario and which the Court of Appeal has said repeatedly are not an alternate appeal route.

This article sets out the law of appeals from a commercial arbitral award seated in Ontario as it stands in October 2026. It covers the three (3) regimes in s. 45, the effect of the arbitration agreement, the leave test under s. 45(1), the question of what counts as a question of law, the standard of review, the appeal and its remedies, the thirty-day limit and enforcement while the appeal is pending, the further appeal to the Court of Appeal under s. 49, the position of international awards under the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (the “ICAA”), and the drafting of the clause. It does not deal with family arbitration awards, which are governed by the Family Law Act, R.S.O. 1990, c. F.3, as well as by the Act.

The three regimes in section 45

Section 45 reads as follows. Subsection (1) provides that “[i]f the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that, (a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and (b) determination of the question of law at issue will significantly affect the rights of the parties.” Subsection (2) provides that “[i]f the arbitration agreement so provides, a party may appeal an award to the court on a question of law.” Subsection (3) provides that “[i]f the arbitration agreement so provides, a party may appeal an award to the court on a question of fact or on a question of mixed fact and law.” Subsection (4) allows the court to “require the arbitral tribunal to explain any matter,” and subsection (5) sets out the remedies, which are discussed below.

Three (3) regimes follow from that text. Where the agreement provides for an appeal on questions of law, the appeal lies without leave under s. 45(2). Where the agreement provides for an appeal on questions of fact or mixed fact and law, the appeal lies on those questions under s. 45(3). Where the agreement “does not deal with appeals on questions of law,” an appeal lies on a question of law only, and only with leave, under s. 45(1). A fourth position, common in commercial agreements, is that the agreement deals with appeals by excluding them, in which case no appeal lies at all. Dunphy J. summarized the combined effect of ss. 45(1) and (2) and s. 3 of the Act in Sitzer Group Holdings No. 1 Ltd. v. Grall Corp., 2026 ONSC 2452 (“Sitzer”) at ¶ 31, as follows. The parties “may expressly agree to allow appeals on questions of law in which case appeals on questions of law without leave are permitted”; they “may not deal with appeals on questions of law in their agreement expressly or impliedly in which case leave is required to appeal”; or they “may positively determine, expressly or impliedly, that appeals on questions of law are not permitted in which case no appeals on questions of law can be brought.”

The “court” in s. 45 is the Superior Court of Justice, by the definition in s. 1 of the Act, as the Court of Appeal noted in Denison Mines Ltd. v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.) (“Denison 2001”) at ¶ 3. In Toronto, an appeal from a commercial award is often heard on the Commercial List, where D Lands Inc. v. KS Victoria and King Inc., 2022 ONSC 1029 (“D Lands”), Sitzer and Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2022 ONSC 1900 (“Baffinland ONSC”) were all decided. The proceeding is an application. In Denison 2001 at ¶ 15, Morden J.A. held that the authority for bringing a leave application by application “is provided for by rule 14.05(3)(h)” of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), “because this is a ‘matter where it is unlikely that there will be any material facts in dispute,’” and at ¶ 21 that an order refusing leave “finally disposes of the moving party’s substantive right to relief in the court and is hence, a final order.” In practice the application asks for leave and, if leave is granted, for the appeal itself, and the court hears both at once, as it did in D Lands, Sitzer, Place Laurier Ltd. v. The Manufacturers Life Insurance Company, 2025 ONSC 4172 (“Place Laurier”), and Tedescon Infrastructure Ltd. v. Simcoe (County), 2026 ONSC 3548 (“Tedescon”).

The appeal under s. 45 is a creature of the 1991 Act. Under the former Arbitrations Act, an appeal lay only where the agreement provided for one, and the Court of Appeal observed in Denison Mines Ltd. v. Ontario Hydro (2002), 58 O.R. (3d) 26 (C.A.) (“Denison 2002”) at ¶ 4 that “[t]he Act changed the law respecting rights of appeal” by providing “that where the parties have not by agreement excluded an appeal, one lies with leave on a question of law.” Akazaki J. made the same point in Tedescon at ¶ 42, stating that “[a]ll appeals to courts are creatures of statute,” that “[i]n the previous iteration of the Act, s. 16(1) permitted appeals to Divisional Court, but only if the agreement provided for appeals,” and that “[t]he current 1991 Act provides a right of appeal to Superior Court with leave, on a question of law.” Those two (2) points, that the appeal exists because the statute creates it and that the statute lets the parties take it away, govern everything that follows.

The arbitration agreement and the right of appeal

Section 3 of the Act allows the parties to “agree, expressly or by implication, to vary or exclude any provision of this Act,” subject to the exceptions it lists, and s. 45 is not among the exceptions. An agreement therefore excludes the appeal when it says so, and it also excludes the appeal when its words imply as much. As Akazaki J. put it in Tedescon at ¶ 43, “[t]he first sentence of s. 45(1) has been interpreted as requiring express or implied exclusion of appeals, failing which the limited right exists,” and “[t]he statutory authority for this reading appears in s. 3, which provides that the parties may agree to exclude any provision in the Act ‘expressly or by implication.’” He added that this “reflects the primacy of party autonomy in modern arbitral jurisprudence,” citing TELUS Communications Inc. v. Wellman, 2019 SCC 19 at ¶ 52.

The words that most often do the excluding are “final and binding.” In Labourers’ International Union of North America, Local 183 v. Carpenters and Allied Workers, Local 27 (1997), 34 O.R. (3d) 472 (C.A.) (“Labourers’”), the Court of Appeal held that an agreement providing that the arbitration would be “final and binding,” and otherwise silent on appeals, excluded the appeal under s. 45(1), on the basis, as Sharpe J.A. later described it in Denison 2002 at ¶ 16, that “[t]he words ‘final and binding’ indicated an intention to exclude any right of appeal.” In Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245 (“Baffinland”), the clause provided that disputes would be “finally settled” by arbitration under the Rules of Arbitration of the International Chamber of Commerce. Zarnett J.A. held at ¶ 35 that the words “final and binding” are “terminology which has been held to preclude appeals from an arbitration award,” citing Labourers’, and at ¶ 39 that “[t]he ordinary and grammatical meaning of ‘finally settled’ by arbitration, when situated in the context of the contracts’ dispute resolution provisions, clearly means no further recourse by way of appeal, in the same way as ‘final and binding’ would.” At ¶ 42 he quoted J. Brian Casey’s text to the effect that “[b]y using the word ‘final’ the implication is that the parties intended to oust all rights of appeal,” and at ¶ 48 he concluded that “the arbitration agreement contained in the contracts dealt with appeals on questions of law by precluding them. As a result, leave to appeal was not available to BIM under s. 45(1) of the Arbitration Act.” The same result followed in Tedescon, where the agreement to arbitrate, a form supplied by the arbitrator, twice described the arbitration as “final and binding.” Akazaki J. held at ¶ 22 that those words “implicitly excluded any recourse to an appeal under s. 45(1)” and at ¶ 57 that, although “the ‘final and binding’ wording would have been insufficient to oust the right” had s. 3 required an express exclusion, “all the appellate authorities have interpreted the phrase as implicitly excluding a recourse to appeal.” In York Region Standard Condominium Corp. No. 1311 v. Star Woodworking Ltd., 2026 ONSC 2381 (“York Region”), the exclusion was in an arbitration agreement negotiated at the outset of the proceeding, which provided that the award was “final and binding and not subject to appeal,” and Pollak J. held at ¶ 30 that the appellants were bound by it and dismissed the leave application.

Lesser words do less. In D Lands, Dietrich J. reviewed the authorities at ¶¶ 42 to 49 and held at ¶ 44 that “if it is the intention of the parties to forgo appeal rights, the waiver of that substantive right should be clearly and unequivocally established,” and that such a waiver “will preclude an appeal with respect to any error of law, irrespective of the consequences for either party.” She noted at ¶ 43 the holding of Pattillo J. in Diorite Securities Limited, as Trustee of the Fern Trust v. Trevali Mining (New Brunswick) Ltd., 2019 ONSC 4225 (“Diorite Securities”), that a clause under which the parties agreed to be “bound by any decision reached pursuant to such arbitration” was, “without further wording to indicate the decision was intended to be final,” insufficient to exclude the appeal, and his explanation at ¶ 17 of that decision that “the agreement to be bound means no more in my view than the parties agree to abide by the decision.” On the lease before her, which incorporated institutional rules that were silent on appeals, she found at ¶ 50 that the parties “did not intend to, expressly or impliedly, exclude the possibility of a right of appeal.” In Sitzer, the clause in a 1971 co-tenancy agreement described the arbitrators’ decision as “final and conclusive.” Dunphy J. nonetheless held at ¶ 57, after examining the agreement, a related management agreement that was “entirely silent on appeals,” and the parties’ decision to re-affirm the clause days before the Act came into force, that the clause did “not preclude an appeal on questions of law expressly or by implication,” so that s. 45(1) applied. The lesson of Sitzer read with Baffinland and Tedescon is that the word “final” ordinarily excludes the appeal, but that the question remains one of contractual interpretation, decided on the words of the particular agreement in their context.

Which agreement governs can itself be the question. In Denison 2002, a 1977 sale agreement contained an arbitration clause that precluded any appeal, but the parties later signed a free-standing arbitration agreement, after the Act came into force and with a third party added, that was silent on appeals. The application judge held that the sale agreement governed and that she had no jurisdiction to grant leave. The Court of Appeal allowed the appeal, holding that the later agreement was a free-standing agreement and governed the arbitration, noting at ¶ 11 that “[i]t would surely be anomalous if one party to a tripartite agreement had the right to seek leave to appeal under s. 45(1) of the Act, but the other two parties did not,” and directing at ¶ 17 that the leave application proceed. The procedural agreements made during an arbitration matter in the same way. The agreement in York Region was made at the outset of the proceeding; the parties in Tedescon, as Akazaki J. observed at ¶ 60, “were free to reconsider the adequacy of the procedural agreement” when the dispute changed character and “[i]nstead of carving out a right of appeal for the new issue, they agreed to exchange fresh arbitral statements or pleadings incorporating the issue into the existing arbitration.”

The agreement can also enlarge the appeal. In Tall Ships Development Inc. v. Brockville (City), 2022 ONCA 861 (“Tall Ships”) at ¶ 2, the parties had agreed “that the decision of the arbitrator was to be final, subject only to appeals on questions of law under s. 45(2).” In Rogers Communications Inc. v. Glentel Inc., 2026 ONSC 2446 (“Rogers”) at ¶ 23, the terms of settlement that referred the dispute to arbitration provided that “[a] party may appeal an award of the Arbitrator to the Ontario Superior Court of Justice on a question of law or a question of mixed fact and law,” so that the appeal lay without leave under ss. 45(2) and (3). In Continental Casualty Company v. Chubb Insurance Company of Canada, 2022 ONCA 188 (“Continental Casualty”) at ¶ 48, the arbitration agreement provided “for an appeal without leave to a Superior Court judge on questions of law or mixed fact and law.” Where the parties have chosen one of those regimes, the leave test in s. 45(1) does not apply, and the court goes directly to the merits on the questions the agreement allows.

Leave under section 45(1)

Where the agreement is silent, the party who wants to appeal must obtain leave, and s. 45(1) tells the court to grant it “only if it is satisfied” of two (2) things; namely, that “the importance to the parties of the matters at stake in the arbitration justifies an appeal,” and that “determination of the question of law at issue will significantly affect the rights of the parties.” Ground J. read those words in the leave decision that followed Denison 2002, reported as Denison Mines Ltd. v. Ontario Hydro (2002), 61 O.R. (3d) 291 (S.C.J.) (“Denison Leave”), and his reading has been the framework since. At ¶ 4 he identified “three criteria which must be met in order for the court to grant leave to appeal,” as follows. The appeal “must be on a question of law”; “the importance to the parties of the matters at stake in the arbitration must justify an appeal”; and “the determination of the questions of law at issue on the appeal will significantly affect the rights of the parties.” At ¶ 9 he held that the two (2) statutory criteria “are conjunctive and obviously both must be satisfied,” and at ¶ 3 he recorded the agreement of counsel “that there is residuary discretion in the court with respect to granting leave to appeal even if the criteria set out in subsection 45(1) are found to be established.”

Two (2) requirements that the words do not contain have been rejected. The first is public importance. Ground J. held at ¶ 7 that “grammatically it is the importance to the parties which must justify the appeal,” and that “[t]he statute makes no reference to matters of public interest or general application and none of the Ontario authorities cited make any such reference.” The second is a threshold showing that the award is wrong. At ¶ 8 he declined to follow an earlier decision that had imported the “good reason to doubt the correctness” test used for leave to appeal interlocutory orders, stating that he was “unable to conclude that the law of Ontario requires that the court find that there was good reason to doubt the correctness of the arbitrator’s decision or otherwise apply rule 62.02(4),” and that the law “is correctly stated in Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (C.A.),” where the Court of Appeal “determined that the function of the Superior Court under s. 45 of [the] Act is to serve as a check on unnecessary or frivolous appeals.” The merits are not irrelevant, however. A court will not grant leave to an appeal that cannot succeed, and Dunphy J. put the point in Sitzer at ¶¶ 62 and 64, stating that “absent an appeal which is obviously doomed to fail,” the respondent’s argument on the merits “places the cart before the horse,” that “[i]n considering leave, I must start by examining the prospective appeal as presented,” and that “[t]he appeal on its face is not ex facie doomed to failure.”

The importance criterion is ordinarily measured by what is at stake. Ground J. found it satisfied at ¶ 6 by a claim that “with the accumulation of interest now amounts to $22 million,” which “would have a significant impact on the financial position of Denison.” In D Lands at ¶ 57, Dietrich J. found both criteria met where “[t]he alleged errors raised on the appeal affect the valuation of the Demised Premises by as much as $31 million and would reduce the Tenant’s rent obligation by over $1 million per year and by over $25 million over the 25-year rental period.” In Place Laurier at ¶ 47, Jensen J. found “a very important issue for the parties” where “the difference between the appraised values is $11,502,000, which results in an annual rent differential of $1,092,690,” and “[o]ver the remaining 20-year term, the amount in dispute is $21,853,800.” In Sitzer at ¶ 60, “[t]he very high level of the importance of the issue to the parties” was “self-evident,” since the award “would see the transfer of one half of a very significant parcel of land from one party to another along with one half of the gains accrued on that investment over more than twenty years.” In Tedescon at ¶¶ 66 and 67, the court would have found the criterion met for both parties, the contractor having been “underfunded by $1,046,723.29 in unpaid Extras” and the municipality facing a damages claim in a project where “[m]illions of dollars of ratepayers’ funds were in issue.”

The second criterion, that determination of the question “will significantly affect the rights of the parties,” has been read in two (2) ways. Ground J. held in Denison Leave at ¶¶ 10 and 11 that “[t]he use of the phrase ‘will significantly affect’ of itself implies some future impact,” that the Ontario authorities “impart the need for some ongoing impact of the appeal decision on the rights of the parties,” and that “leave to appeal should not be granted unless the determination of the appeal will have some impact on the future rights of, or relationship between, the parties.” On that reading he refused leave, because “the only effect of the appeal would be to reverse an historic determination as to an amount payable between the parties” and the parties’ “contractual relationship came to an end in 1992.” The later decisions have asked a different question, which is whether the answer to the question of law would change the result. In Sitzer at ¶ 63, Dunphy J. held that “[i]f the pleaded error of law were established, the legal status of the parties would be significantly altered in that the claimed constructive trust interest in the neighboring land owned by a Sitzer affiliate would be rejected.” In Tedescon at ¶ 68, Akazaki J. described this criterion as “[t]he narrower and more nuanced point” and treated it as satisfied by “[t]he only salient issue requiring review of the choice or formulation of principle,” the arbitrator’s conclusion that the contractor was liable in damages, while refusing it for “the tabulation or calculation issues.” At ¶ 71 he noted that “the reviewing court’s task in appellate review and leave to appeal can often entail the same distillation process,” citing Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (“Sattva”) at ¶ 42. A party seeking leave should be ready to meet both readings, by showing what the appeal would change in the award and, where it can, what it would change in the parties’ continuing relationship.

A decision granting or refusing leave is, as a general rule, the end of the road. The Court of Appeal held in Hillmond that no appeal lies from an order refusing leave under s. 45(1), and in Denison 2001 at ¶ 6 Morden J.A. explained that “[t]he non-appealability of decisions refusing or granting leave to appeal is the general rule,” which “flows from the strong implication that, notwithstanding the wording of s. 6(1)(b) of the Courts of Justice Act, a general statute, no appeal is intended from an order made refusing or granting leave to appeal,” because “[a]ny other conclusion would defeat the purpose of s. 45(1), which is to limit appellate recourse to the courts in arbitration matters.” The one exception, described at ¶ 8 of the same decision, applies “where the judge mistakenly declines jurisdiction,” as where the judge refuses leave on the basis that the agreement excludes the appeal and that ruling is itself wrong. Both the rule and the exception are discussed under the further appeal to the Court of Appeal, below.

The question of law

The appeal under s. 45(1) and the appeal under s. 45(2) are both confined to questions of law, and the first task of the party who wants to appeal is to identify one. The Supreme Court of Canada set out the categories in Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32 (“Teal Cedar”) at ¶ 43, stating that “legal questions are questions ‘about what the correct legal test is,’” that “factual questions are questions ‘about what actually took place between the parties,’” and that “mixed questions are questions about ‘whether the facts satisfy the legal tests’ or, in other words, they involve ‘applying a legal standard to a set of facts.’” The consequence of the characterization in an arbitration appeal is described at ¶ 46, which states that “[t]he identification of a mixed question when appealing an arbitration award defeats a court’s appellate review jurisdiction,” whereas in an appeal from a civil judgment it “merely raises the standard of review.”

Most commercial awards turn on the interpretation of a contract, and since Sattva that interpretation is a question of mixed fact and law. Rothstein J. held at ¶ 50 that “[c]ontractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix,” and at ¶ 55 that “the circumstances in which a question of law can be extricated from the interpretation process will be rare,” so that “[i]n the absence of a legal error of the type described above, no appeal lies under the AA from an arbitrator’s interpretation of a contract.” The types of legal error he described at ¶ 53 are “the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor,” and he added that “many other issues in contract law do engage substantive rules of law: the requirements for the formation of the contract, the capacity of the parties, the requirement that certain contracts be evidenced in writing, and so on.” The Court of Appeal added two (2) more in Niagara Falls Shopping Centre Inc. v. LAF Canada Company, 2023 ONCA 159 at ¶ 24, stating that “[f]ailure to construe a contract as a whole and disregarding relevant provisions are also extricable errors of law.” Teal Cedar explained at ¶ 44 how an extricable error arises within the application of a test. Where “a party alleges that a judge (or arbitrator) while applying a legal test failed to consider a required element of that test, that party alleges that the judge (or arbitrator), in effect, deleted that element from the test and thus altered the legal test,” which “ultimately challenges whether the judge (or arbitrator) relied on the correct legal test, thus raising a question of law.” Such questions “are better understood as a covert form of legal question” than “as a fourth and distinct category of questions.”

The Supreme Court coupled that opening with a warning, which the Ontario courts have repeated in every decision since. Sattva held at ¶ 54 that “courts should be cautious in identifying extricable questions of law in disputes over contractual interpretation,” because “the applicant for leave and its counsel will seek to frame any alleged errors as questions of law,” and “[t]he legislature has sought to restrict such appeals.” Teal Cedar held at ¶ 45 that “[t]he motivations for counsel to strategically frame a mixed question as a legal question … are transparent,” and that “[c]ourts must be vigilant in distinguishing between a party alleging that a legal test may have been altered in the course of its application (an extricable question of law …), and a party alleging that a legal test, which was unaltered, should have, when applied, resulted in a different outcome (a mixed question).” In Tall Ships at ¶ 3, Harvison Young J.A. applied the warning to Ontario, stating that “judges exercising their appellate powers under s. 45 of the Arbitration Act should be cautious about extricating questions of law from the interpretation process,” and that “[f]ailing to exercise such caution will result in the very inefficiencies, delays and added expense that choosing an arbitral process seeks to avoid.” At ¶ 16 she added that the principle “is of particular importance when, as here, the impugned terms form a relatively small part of a large and complex arbitration decision.” In Rogers at ¶ 125, Leiper J. described the extricable error as one of the “rare and uncommon errors,” quoting Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20 at ¶ 28 and Corner Brook (City) v. Bailey, 2021 SCC 29 at ¶ 44, and held that a party’s disagreement with the arbitrator’s interpretation of the words “ancillary services” “does not amount to an extricable error of law.” Kimmel J.’s summary in Ontario Minister of Transportation v. Link 427 General Partnership, 2025 ONSC 2375 (“Link 427”) at ¶ 19, quoted in Place Laurier at ¶ 55, is the shortest statement of the test. “Extricable errors of law are about the decision-maker applying the wrong principle, not applying the right principle inappropriately. A legal question is only extricable if it can be considered without regard to the facts …. Once the decision-maker engages in the application of the correct principle, that becomes a question of mixed fact and law, from which there is no right of appeal.”

The decisions show where the line falls. In Tall Ships, the application judge had set aside three (3) awards on the basis of errors in the interpretation of a development agreement; the Court of Appeal held at ¶ 72 that the point “was not a question of law, but a question of mixed fact and law, which according to the parties’ Arbitration Agreement, was not subject to appeal,” and at ¶ 81 that “the arbitrator did precisely what he was asked to do: he interpreted the contract as a whole, within its relatively complex factual matrix of the agreements and relationships in play.” In D Lands, the alleged failure “to interpret the Lease in accordance with governing principles of contractual interpretation, and its failure to apply binding authority” were held at ¶ 64 to “give rise to extricable questions of law,” but the appeal failed on the merits because, as Dietrich J. found at ¶ 125, both the majority and the minority of the tribunal “identified and applied the rules of contractual interpretation as set out in Sattva” and “came to different conclusions when they applied the relevant rules of interpretation and the jurisprudence to the factual matrix.” In Place Laurier, the tenant argued that the arbitrator had omitted two (2) of the four (4) elements of the test for the “highest and best use” of land; Jensen J. accepted at ¶ 56 that the landlord’s complaint that the tenant had “dressed up” findings of fact “in legal clothing” was “partly true, but not entirely,” granted leave on the questions that could “be determined without regard for the facts,” and dismissed the appeal. In Sitzer, the arbitrator had found an “ad hoc fiduciary duty” and imposed a constructive trust over land that the co-tenancy agreement expressly excluded from its scope; Dunphy J. held at ¶ 15 that the ruling was “the product of an extricable errors of law in failing to give effect to the clear and unambiguous language employed by the parties,” and at ¶ 68 that elevating a prohibition into a positive object of the contract “ignores the clearly expressed objects of the Co-Tenancy and was an error of law.” In Tedescon, the arbitrator had found that the contractor’s suspension of work was both justified under the contract and a repudiation of it; Akazaki J. would have held at ¶ 24 that the arbitrator “failed to consider a required element of fundamental breach amounting to repudiation: that Tedescon had to have breached the agreement,” while holding at ¶ 68 that “the assessment of damages in a construction payment dispute is a, in substance, a question of fact incapable of forming grounds for appeal under s. 45(1).”

Two (2) further categories deserve mention. The first is the standard form contract. The Supreme Court held in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 (“Ledcor”), that the interpretation of a standard form contract, where the interpretation has precedential value and the factual matrix is of little weight, is a question of law, and Akazaki J. applied that exception in Tedescon at ¶ 69 to the general conditions of “the provincial contract used for municipal procurement of public works contractors.” The party who relies on the exception must prove it; in Niagara Falls Shopping Centre at ¶¶ 20 to 23, the Court of Appeal rejected the characterization of a lease as a standard form contract where the tenant said only that “most of” its leases had similar terms “with only minor modifications.” The second is statutory interpretation, which Teal Cedar at ¶ 47 described as “normally characterized as a legal question,” and which arises in arbitrations under statutes such as the Condominium Act, 1998, S.O. 1998, c. 19, and the Insurance Act, R.S.O. 1990, c. I.8.

A complaint about the reasons is sometimes framed as a question of law, and the test for it is settled. Section 38(1) of the Act requires an award to “state the reasons on which it is based.” In Rogers at ¶ 108, Leiper J. held that the court asks “whether in the context of the record, the issues and the submissions of the parties, the judgment is sufficiently intelligible to show that the adjudicator understood the substance of the matter and addressed the necessary and critical issues,” and at ¶¶ 111 and 121 she rejected the complaint that an alternative argument was “not explicitly addressed in the reasons” because “the arbitrator was alive to the issue” and “understood the alternative argument and determined that it did not require further explication in her reasons.” In York Region at ¶ 41, Pollak J. adopted the statement in Remington Georgetown Inc. v. Tarion Warranty Corporation, 2025 ONSC 1285 at ¶¶ 37 to 40, that reasons “need not review each and every argument raised by the parties,” that “the adequacy or inadequacy of reasons is not generally a sufficient ground for quashing an otherwise valid decision,” and that “disagreement with the arbitrator’s conclusion is not a proper basis for setting aside the decision.” The exception is the award whose reasons do not show why the arbitrator reached the result on a disputed issue. In Jodie Calvert Wang Professional Corp. v. Takhar, 2019 ONSC 5535 (“Wang”) at ¶ 73, Edwards J. found on an appeal under s. 45 that “the reasons are not sufficient on the issue as to why Dr. Takhar is required to pay Dr. Wang the sum of $568,358.45 as those reasons do not show why the arbitrator reached that conclusion,” and remitted that issue to the arbitrator.

The standard of review

Once the court has a question of law before it, the question is how closely it reviews the arbitrator’s answer, and on that question the Ontario courts are divided. The division has a history. In Sattva at ¶ 106, the Supreme Court held that “[i]n the context of commercial arbitration, where appeals are restricted to questions of law, the standard of review will be reasonableness unless the question is one that would attract the correctness standard, such as constitutional questions or questions of law of central importance to the legal system as a whole and outside the adjudicator’s expertise.” Teal Cedar confirmed at ¶ 74 that in an arbitral appeal “the standard of review is ‘almost always’ reasonableness,” a preference that “dovetails with the key policy objectives of commercial arbitration, namely efficiency and finality.” The Court of Appeal applied that standard to an appeal under s. 45 in Ottawa (City) v. Coliseum Inc., 2016 ONCA 363 (“Coliseum”) at ¶ 31, stating that “[t]he standard of review on appeal from a commercial arbitration award will generally be reasonableness.”

Vavilov then held, at ¶ 37, that “where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision,” which under Housen v. Nikolaisen, 2002 SCC 33 (“Housen”) means correctness for questions of law and palpable and overriding error for questions of fact and mixed fact and law. Vavilov said nothing about Sattva or Teal Cedar. The Supreme Court had the chance to address the point in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 (“Wastech”), and the majority declined it. Kasirer J. wrote at ¶ 46 that he “would leave for another day consideration of the effect, if any, of Vavilov on the standard of review principles articulated in Sattva and Teal Cedar,” because “[o]n either standard, the arbitrator’s award cannot stand,” and that his silence “should not be understood as my agreeing with their view.” The view he referred to was that of Brown and Rowe JJ., Côté J. concurring, who wrote at ¶ 119 that “[a]ppellate standards of review apply as a matter of statutory interpretation” because, in the words of Vavilov at ¶ 39, “a legislative choice to enact a statutory right of appeal signals an intention to ascribe an appellate role to reviewing courts,” and at ¶ 120 that “where a statute provides for an ‘appeal’ from an arbitration award, the standards in Housen apply. To this extent, Vavilov has displaced the reasoning in Sattva and Teal Cedar.”

The Court of Appeal for Ontario has not decided the point for a commercial arbitration under the Act. In Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2021 ONCA 592 (“Ontario First Nations”), the appeal judge had applied reasonableness and the appellants argued for the appellate standard; Jamal J.A. held at ¶ 37 that “it is unnecessary in these appeals to address whether Vavilov changed the standard of review analysis in Sattva and Teal Cedar in an appeal from a commercial arbitration decision,” because the result was the same on either standard and because, as he explained at ¶ 40, the appellants “largely advance questions of contractual interpretation, which since Sattva it has been accepted are questions of mixed fact and law attracting a deferential standard of review.” Tall Ships, which the court had identified as a vehicle for the question, was decided on characterization without reaching it. In two (2) insurance arbitrations conducted under the Act, however, the court applied Vavilov. In Travelers Insurance Company of Canada v. CAA Insurance Company, 2020 ONCA 382 at ¶ 14, it held that “[b]ecause this is a statutory appeal that raises questions of law, including questions of statutory interpretation, the standard of correctness applies,” and in Continental Casualty at ¶¶ 46 to 48, Simmons J.A. agreed that “post-Vavilov, the standard of review to be applied in this case is the appellate standard,” noting that “[t]he arbitration in this matter was conducted pursuant to the Arbitration Act, 1991” and that ss. 45(2) and (3) “provide for an appeal on questions of law and mixed fact and law if permitted by the arbitration agreement.”

In the Superior Court, the judges have divided. One line holds that Sattva and Teal Cedar bind until the Supreme Court overrules them. Hainey J. so held in Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2020 ONSC 1516 at ¶¶ 64 to 72, distinguishing private arbitration from the arbitrations and appeals that a statute mandates, and the same conclusion was reached in Serbcan Inc. v. National Trust Co., 2022 ONSC 2644 at ¶¶ 10 to 17, Bergmanis v. Diamond, 2021 ONSC 2375 at ¶¶ 32 to 34, and Jewish Foundation of Greater Toronto v. Joseph Lebovic Charitable Foundation, 2025 ONSC 5068 at ¶¶ 121 and 122. The other line applies the appellate standard. Dietrich J. held in D Lands at ¶ 64 that the appeal “arises as a result of a right of appeal pursuant to the Arbitration Act, 1991” and that “the standard of review on these questions is correctness.” The same conclusion was reached in Burwell v. Wozniak, 2024 ONSC 5851 at ¶ 39, in Link 427 at ¶ 39, where Kimmel J. traced the reasonableness standard to the Dunsmuir framework that Vavilov replaced, in 1750738 Ontario Inc. c. 6888631 Canada Inc., 2025 ONCS 3145 at ¶ 25, in Bot Construction et al. v. Minister of Transportation, 2025 ONSC 6184, and in Place Laurier, where Jensen J. described at ¶ 41 “a growing consensus that the appellate standards of review apply to arbitral awards” and held at ¶ 43 that she was “bound by the principle of horizontal stare decisis” to follow the most recent decision on the point. The fullest review is Leiper J.’s in Rogers at ¶¶ 62 to 92, decided in April 2026. She noted at ¶ 74 that “[t]he question of standard of review in arbitral appeals has not been decided by the Court of Appeal for Ontario,” at ¶ 75 that the judges of the Superior Court “have diverged,” and at ¶ 89 that “there is a substantial body of case law on both sides of the issue,” and she concluded at ¶ 92 that she would “apply appellate standards to this appeal: correctness for questions of law, and palpable and overriding error for questions of mixed fact and law.”

The appellate courts of other provinces have divided in the same way. The Court of Appeal for the Northwest Territories held in Northland Utilities (NWT) Limited v. Hay River (Town of), 2021 NWTCA 1 at ¶ 44, that “the revised standard of review framework described in Vavilov applies to commercial arbitration decisions reviewed as a result of a right of appeal given by statute.” The British Columbia Court of Appeal reached the same conclusion in Vancouver School District No. 39 v. Kingsgate Property Ltd., 2026 BCCA 98, after reviewing the conflicting decisions across the country, as Leiper J. described at ¶¶ 84 to 86 of Rogers. The Manitoba Court of Appeal held the opposite in Buffalo Point First Nation v. Buffalo Point Cottage Owners Association Inc., 2025 MBCA 72 at ¶ 44, concluding, as Leiper J. described it in Rogers at ¶ 87, “that until the Supreme Court of Canada decisively overturned Sattva and Teal Cedar, those decisions remain good law,” and leave to appeal to the Supreme Court was sought in that case. Until the Supreme Court or the Court of Appeal for Ontario decides the question, a party appealing under s. 45 should argue both standards and should expect the Toronto judges, on the weight of the recent decisions, to apply correctness to a question of law.

The practical effect of the division is smaller than the volume of the case law suggests. On the interpretation of a contract, the arbitrator’s decision attracts deference on either view, because the question is one of mixed fact and law unless an extricable error of law is shown; Jamal J.A. made the point in Ontario First Nations at ¶ 42, stating that “[a]bsent an extricable error of law, such an exercise of contractual interpretation by a first-instance decision maker, whether a court or an arbitrator, attracts appellate deference,” and Leiper J. applied it in Rogers at ¶ 134, finding neither “any extricable legal error” nor “any palpable or overriding error on this question of mixed fact and law.” The standard matters where the question is one of law in the full sense; namely, the content of a legal test, the construction of a statute, or the existence of a duty, and there the difference between asking whether the arbitrator was right and asking whether the arbitrator was reasonable can decide the appeal. Where the agreement permits an appeal on questions of fact or mixed fact and law under s. 45(3), the court reviews those questions for palpable and overriding error, as it did in Rogers at ¶ 92 and in Continental Casualty at ¶ 49.

The appeal, the record and the remedies

The appeal is heard on the record of the arbitration. The award, the arbitration agreement and any procedural orders, the pleadings or statements of position, and the transcripts and exhibits that bear on the question are placed before the court in the application record, and the court decides the question of law on the facts as the arbitrator found them. Ground J. observed in Denison Leave at ¶ 5 that “[a]n appeal court can deal with questions of law taking the factual matrix as agreed by the parties or as found by the arbitrator.” Section 45(4) allows the court to “require the arbitral tribunal to explain any matter,” a power that is rarely exercised but that exists for the case in which the award leaves the basis of a decision on a question of law unclear.

What can be appealed is an “award.” The Act does not define the word, and the Court of Appeal held in Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642 (“Inforica”) at ¶ 29 that it “has been held to connote the judgment or order of an arbitral tribunal that ‘disposes of part or all of the dispute between the parties,’” so that an order for security for costs, which the arbitrator “aptly labelled” a “Procedural Order,” was not an award. Sharpe J.A. added at ¶ 18 that “[a] significant feature of the modern approach limiting access to the courts to review decisions of arbitrators is that there are no appeals from procedural or interlocutory orders,” and that this “is a deliberate policy, ‘not a lacuna in our law’, to protect the autonomy of the arbitral process.” A partial award that decides liability, or a final award on one of several questions, is an award, and was appealed as such in Rogers and in Sitzer. A ruling on jurisdiction made as a preliminary question is dealt with under s. 17(8) of the Act, which allows an application to the court within thirty (30) days, and s. 17(9) provides that “[t]here is no appeal from the court’s decision”; where the tribunal deals with jurisdiction in the award instead, the ruling is reviewed under ss. 45 and 46, as B. Davies J. explained in Toronto Standard Condominium Corp. No. 1466 v. Weinstein, 2021 ONSC 1306 at ¶ 12.

The remedies are in s. 45(5), which provides that “[t]he court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court’s opinion on the question of law, in the case of an appeal on a question of law, and give directions about the conduct of the arbitration.” The court will often decide the question and vary the award itself. In Sitzer at ¶ 114, Dunphy J. ordered that the award “be varied” and that the paragraphs finding the fiduciary duty and imposing the trust “be struck in accordance with s. 45(5) and s. 46(1) of the Act.” In Rogers at ¶ 122, Leiper J. recorded that counsel had asked her, if she found an error of law, to “decide the question of Rogers’ alternative argument in lieu of returning the matter to another arbitrator,” and said what her decision would have been. Where the question of law affects a finding that depends on the evidence, the court remits. In Place Laurier at ¶ 104, Jensen J. said that even if she had found an error she “would not have accepted PLL’s proposal to replace the Arbitrator’s conclusion regarding the value of the Land with the value proposed by PLL’s appraiser,” and that “[t]he most practical remedy if an error was found would be to send the matter back to the Arbitrator with directions.” In Wang at ¶ 98, Edwards J. remitted the issue on which the reasons were insufficient to the original arbitrator, holding that “[i]n the absence of any allegation of bias, procedural error or otherwise, the most efficient, cost-effective and fair solution to all is to remit this issue back to the original arbitrator.” The court may also remit to a new tribunal. In Victoria University (Board of Regents) v. GE Canada Real Estate Equity, 2016 ONCA 646 at ¶ 143, Pepall J.A. held that “nothing in s. 45(5), or in the Act read as a whole, requires the court to return the matter to the same arbitral tribunal,” that “it would be strange for an appeal scheme to omit provision for a power of remittal to a new panel,” and that “[w]hen contemplating whether to exercise such a power, the principles of efficiency, cost-effectiveness and fairness to the parties should all be considered.” At ¶ 142 she drew the distinction that organizes this article and its companion, stating that “[s]ection 45 is an appeal provision for addressing legally incorrect awards whereas s. 46 provides for applications to address awards tainted by procedural or jurisdictional irregularities.”

The thirty-day limit and enforcement in the meantime

Section 47(1) provides that “[a]n appeal of an award or an application to set aside an award shall be commenced within thirty days after the appellant or applicant receives the award, correction, explanation, change or statement of reasons on which the appeal or application is based,” and s. 47(2) that the subsection “does not apply if the appellant or applicant alleges corruption or fraud.” The period runs from receipt, and the application for leave must be issued within it; the leave application is the commencement of the appeal, and a party who waits for leave before counting the days has misread the section. The court cannot extend the period. In R & G Draper Farms (Keswick) Ltd. v. 1758691 Ontario Inc., 2014 ONCA 278 (“Draper Farms”) at ¶ 19, the Court of Appeal held that the Act does not “contemplate a judicial discretion to extend the s. 47 time period,” noting that “under s. 50(3) of the Act, an arbitral award becomes final within 30 days unless otherwise set aside or varied.” A request to the arbitrator under s. 44 to correct an error or make an additional award must itself be made “within thirty days after receiving the award,” and the correction or additional award, when received, starts a fresh period for an appeal based on it. A party who intends to appeal and also to ask for a correction should run both periods from the award and should not assume that the request suspends the first.

While the thirty (30) days run, and while an appeal is pending, the award is enforceable only with the court’s leave. Section 50(3) requires the court to give judgment enforcing an award made in Ontario unless “the thirty-day period for commencing an appeal or an application to set the award aside has not yet elapsed” or “there is a pending appeal, application to set the award aside or application for a declaration of invalidity.” Section 50(5) provides that in either case “the court may, (a) enforce the award; or (b) order, on such conditions as are just, that enforcement of the award is stayed until the period has elapsed without such a proceeding being commenced, or until the pending proceeding is finally disposed of,” and s. 50(6) that where the court stays enforcement “it may give directions for the speedy disposition of the proceeding.” The winning party should therefore apply to enforce at once, and the appellant should expect to be asked for conditions, which may include terms as to payment or security, as the price of a stay. An appeal that is pending does not by itself prevent the court from enforcing the award.

The further appeal to the Court of Appeal

Section 49 provides that “[a]n appeal from the court’s decision in an appeal of an award, an application to set aside an award or an application for a declaration of invalidity may be made to the Court of Appeal, with leave of that court.” The motion for leave is brought under rule 61.03.1 of the Rules. It “shall be heard in writing, without the attendance of parties or lawyers” (subrule (1)); the notice of motion “shall be served within 15 days after the making of the order or decision from which leave to appeal is sought” (subrule (3)(a)); and the moving party’s factum must contain, among other things, “the specific questions that it is proposed the court should answer if leave to appeal is granted” (subrule (4), paragraph 3). The court does not ordinarily explain its decision. In Toronto Standard Condominium Corp. No. 1466 v. Weinstein, 2021 ONCA 470 at ¶ 4, the court stated that “[i]t is not the practice of this court to give reasons on motions for leave to appeal and we see no reason to depart from that practice here,” and at ¶ 1 it held that s. 49 applied to an appeal from a decision on an enforcement application and a late set-aside application, so that leave was required.

Where the Superior Court has decided an appeal, whether because it granted leave or because the agreement allowed the appeal as of right, s. 49 provides the route onward, and the Court of Appeal has heard such appeals in Coliseum, where it allowed the appeal and reinstated the award, in Ontario First Nations, where it dismissed the appeal, and in Victoria University. Where the Superior Court has refused leave, the road ends there. Zarnett J.A. explained the scheme in Baffinland at ¶ 22, stating that “[i]f the Superior Court has decided an appeal, either because leave to appeal was granted by the Superior Court or because there was an appeal to that court as of right, s. 49 of the Arbitration Act provides for a further appeal, with leave, to this court,” but that “the Arbitration Act does not provide for an appeal to this court from a refusal by the Superior Court to grant leave to appeal.” Doherty J.A. said the same in Optiva Inc. v. Tbaytel, 2022 ONCA 646 at ¶ 63, stating that “[t]he refusal to grant leave under s. 45 of the Act is, as a general rule, not appealable to this court,” and MacPherson J.A. in Coliseum at ¶¶ 27 to 29. The reason, given in Hillmond and in Denison 2001 at ¶ 7, is that “[i]t would be incongruous to attribute to the legislature an intention that there be appeals, as of right, from decisions on leave applications under s. 45(1) when no such appeal is provided for with respect to decisions on what may be called the main issue, the correctness of the arbitral decision.”

The exception is the judge who “mistakenly declines jurisdiction.” Morden J.A. traced it in Denison 2001 at ¶ 8 to the statement of Cartwright J. in Canadian Utilities Ltd. v. Deputy Minister of National Revenue, [1964] S.C.R. 57, that no appeal lies from a refusal of leave “provided that the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application,” and applied it at ¶ 10 because “the parties did not argue the merits of the application before Macdonald J.,” having argued instead “whether or not Macdonald J. had jurisdiction to grant leave to appeal.” Baffinland at ¶ 25 applied the same exception to an application judge’s ruling that the arbitration agreement precluded appeals, so that the motion to quash was dismissed and the appeal was heard, and then dismissed on the merits because the ruling was right. Optiva at ¶ 63 put the exception in one sentence, stating that “[a] refusal to grant leave will be appealable if it reflects an erroneous declining of the jurisdiction given to the Superior Court judge to grant leave under s. 45.” A party who has lost a leave application on the merits of the leave test, as in Denison Leave, has no appeal; a party who has lost it on the construction of the clause, as in Baffinland, may have one.

International awards

None of this applies to an international commercial arbitration. The ICAA gives the force of law to the UNCITRAL Model Law on International Commercial Arbitration, which is Schedule 2 to the ICAA, and art. 34(1) of the Model Law provides that “[r]ecourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.” Article 5 provides that “[i]n matters governed by this Law, no court shall intervene except where so provided in this Law.” An award in an arbitration to which the ICAA applies therefore cannot be appealed on a question of law, or on any question, whatever the arbitration agreement says, and the parties’ only recourse is the set-aside application on the grounds in art. 34(2), within the three (3) months that art. 34(3) allows. Whether the domestic Act or the ICAA applies is decided by s. 2(1)(b) of the Act, which excludes an arbitration to which the ICAA applies, read with the Model Law’s definition of an international arbitration in art. 1(3), and the question can matter for the time limit as well as for the appeal, as it did in Draper Farms, where the applicant issued its application after thirty (30) days but within three (3) months and lost because the domestic Act applied. The set-aside regime under the Model Law is discussed in our article on setting aside an arbitral award in Ontario.

The arbitration clause

Because the right of appeal is the parties’ to give or withhold, the arbitration clause should say what they have decided, and the decisions in this article show the cost of saying it badly. A clause that says the award is “final and binding” excludes the appeal, and the parties should use those words only if that is what they want. The contractor in Tedescon lost a claim worth more than $1 million because its arbitration agreement used them, and Akazaki J. acknowledged at ¶ 40 that “[t]hat the error cannot be appealed will also seem unjust,” while holding at ¶ 60 that “[t]he unavailability of appeal is the outcome the parties implicitly covenanted to follow.” A clause that says the parties will be “bound” by the award, or that the award is “conclusive,” may or may not exclude the appeal, depending on the rest of the agreement and its context, as Diorite Securities, D Lands and Sitzer show, and should be avoided by a party who wants certainty either way. A clause that is silent leaves the appeal on a question of law with leave, and the leave application that follows is, as this article shows, a contest about characterization that the appellant usually loses.

A party who wants an appeal should say so in terms that track the statute. The clause in Rogers, which provided that “[a] party may appeal an award of the Arbitrator to the Ontario Superior Court of Justice on a question of law or a question of mixed fact and law,” engaged ss. 45(2) and (3) and removed the leave requirement. A clause that provides for an appeal “on a question of law” alone engages s. 45(2). A clause that provides for an appeal “on a question of fact, law or mixed fact and law” engages s. 45(3) and gives the broadest review the Act allows. Three (3) further matters deserve attention. The first is the institutional rules the clause adopts, because the rules may contain their own waiver of appeal, as the ICC Rules did in Baffinland, or may be silent, as the ICDR Rules were in D Lands at ¶ 50. The second is the interaction between the clause in the main agreement and any later agreement to arbitrate, terms of appointment or procedural order, since the later document may change the regime, as it did in Denison 2002 and York Region, and since a procedural order that merely refers to the existing agreements will not, as Dunphy J. held in Sitzer at ¶ 56. The third is a private appeal. Parties may provide for an appeal to a second arbitral tribunal, as the dealer arbitration rules did in Competition Motors Ltd. v. Toyota Canada Inc., 2023 ONSC 6388, and the Act’s regime then applies to the award of the appellate tribunal.

Practical considerations

The appeal is prepared during the arbitration. A party who may need one should put the legal test it relies on in writing in its submissions, so that an award which departs from it discloses an error that can be extricated, and should ask the tribunal for reasons on each disputed question of law, because an award that states the test and applies it to the facts leaves nothing to appeal. The party should keep the record that an appeal needs, which includes the pleadings or statements of position, every procedural order and agreement, the exhibits and the transcripts, since the court decides the question of law on the facts as found and the respondent will say, as the respondents said in Rogers and Place Laurier, that the complaint is a factual one in legal dress. Where the complaint is that the arbitrator decided something that was not submitted, or decided it on a theory that was not argued, the objection should be made at once and on the record, because that complaint belongs under s. 46 as much as under s. 45, as Sitzer shows, and the s. 46 ground is lost if the objection was not made.

When the award arrives, the thirty (30) days start. The first task is to read the arbitration clause, the agreement to arbitrate and every procedural order for the words that decide the regime, and to decide which of the four (4) positions the parties are in. The second is to state the question of law in a sentence, in the form the court must answer, and to test it against Teal Cedar at ¶ 45; namely, whether the complaint is that the arbitrator altered the test or that the arbitrator applied the right test and reached the wrong result. A notice of application that pleads the question in the first form, and pleads nothing in the second, has the strongest chance of leave; Jensen J. observed in Place Laurier at ¶ 48 that “a court must grant leave only when questions of law can be clearly perceived and delineated.” The third is to decide whether to add an application under s. 46 and, if so, to keep the two (2) routes distinct, because the court will dismiss a set-aside application that is “an attempt at a second kick at the can,” as Dietrich J. called the one in D Lands at ¶ 135, and Pattillo J. noted in Baffinland ONSC at ¶ 90 that a complaint about the tribunal’s reliance on a legal theory “more properly belongs” under s. 45. The fourth is the standard of review, on which the application should argue correctness and, in the alternative, unreasonableness, until the Court of Appeal settles the point. The respondent to a leave application should consider a cross-application, as the municipality brought in Tedescon, so that its own questions of law are before the court if leave is granted, and the winning party should apply to enforce under s. 50 without waiting for the appeal to be decided.

Costs follow the event. The appellant in Tall Ships paid $40,000 to the city on the appeal, and an application for leave that is refused ordinarily carries costs as well. The appeal is an expensive exercise in a process the parties chose for its finality, and the cases in which it has succeeded are those in which the award disregarded the words of the contract, as in Sitzer, or omitted an element of the legal test, as the court found in Tedescon, rather than those in which the arbitrator read the contract differently from the losing party.

How we can help

Grigoras Law acts as counsel in commercial arbitrations seated in Toronto, in shareholder, partnership, contract, lease and fraud disputes, and in the court proceedings that follow the award, including applications for leave to appeal and appeals under s. 45, applications to set aside or enforce an award under ss. 46 and 50, and motions for leave to appeal to the Court of Appeal under s. 49. The analysis in this article, from the words of the clause to the framing of the question of law, is the one we carry out with clients in the first days after an award is received, and the clause drafting it describes is part of the agreements we prepare. Our arbitration practice and our commercial litigation practice are described on the pages linked here. Our articles on setting aside an arbitral award in Ontario, on arbitrating a shareholder dispute in Ontario and on evidence in a commercial arbitration in Ontario deal with the other side of the award, the stay motion and the arbitrator’s remedial powers, and the law of evidence before the tribunal, and our page on commercial leases covers the rent arbitrations from which several of the appeals discussed here arose.

This article is general information about the law of Ontario as of October 2026 and is not legal advice. Whether an award can be appealed, and on what standard, depends on the arbitration agreement, the award and the record, and the authorities cited should be read in full before they are relied on.