Challenging an Arbitrator’s Jurisdiction in Ontario

An arbitrator has no inherent jurisdiction. The authority to decide a dispute comes from the parties’ agreement, and a party who says that no agreement was ever made, that it never signed the agreement, that the dispute falls outside the clause, or that a condition precedent to arbitration was never met is saying that the arbitrator has no power to act at all. Ontario law answers that objection in two (2) stages. Under s. 17(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”), “[a]n arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement,” so the arbitrator decides first. Under s. 17(8), where the tribunal rules on the objection as a preliminary question, “a party may, within thirty days after receiving notice of the ruling, make an application to the court to decide the matter,” so the court decides second, and decides for itself. Section 17(9) then closes the door, stating, “[t]here is no appeal from the court’s decision.”

The structure rewards parties who understand it and punishes those who do not. A party who objects late is deemed to have waived the objection. A party who files a counterclaim and then disputes the tribunal’s jurisdiction has been held to have agreed to it. A party who wins before the arbitrator may lose before the court, because the court does not defer to the arbitrator’s ruling but hears the matter afresh. And a party who loses before the court has nowhere else to go, since the Court of Appeal has quashed one attempt after another to appeal a s. 17(8) decision. This article takes the subject in order, from the source of the arbitrator’s authority to the position after the award, and closes with the steps that decide most jurisdictional contests before they reach a judge.

The source of the arbitrator’s jurisdiction

The starting point is consent. As Centa J. put it in Ontario (Minister of Northern Development, Mines, Natural Resources and Forestry) v. HugoMB Contracting Inc., 2023 ONSC 3513 (“HugoMB”), at ¶ 81, “[a] privately appointed arbitrator has no inherent jurisdiction. Her jurisdiction comes only from the parties’ agreement,” and while the parties “have ‘virtually unfettered autonomy’ in identifying the disputes that may be the subject of the arbitration proceeding,” the corollary is that “no party can be compelled to submit to arbitration a dispute other than the one they agreed to arbitrate.” Diamond J. said the same in Covanta Durham York Renewable Energy Partnership v. Barton-Malow Canada Inc., 2016 ONSC 2044 (“Covanta”), at ¶ 37, stating, “[a]n arbitral tribunal possesses jurisdiction to decide disputes between parties due to the common intention of those parties who agree to be bound by the arbitral process,” a passage the Court of Appeal adopted when it quashed the appeal in Covanta Durham York Renewable Energy Limited Partnership v. Barton-Malow Canada Inc., 2016 ONCA 558 (“Covanta (C.A.)”), at ¶ 16. Iacobucci J. restated the point in 1171757 Ontario Ltd. v. 1171758 Ontario Ltd., 2026 ONSC 4414 (“Kaptyn”), at ¶ 59, stating, “[a]rbitrators do not have inherent jurisdiction but rather must derive jurisdiction from either statute or contract,” so that “[t]he disagreements about jurisdiction are therefore to be resolved by interpreting the partnership agreement.”

Two (2) provisions of the Act shape that inquiry. Section 5 allows the arbitration agreement to be an independent agreement or part of another agreement, deems a further agreement made in connection with the arbitration to form part of it, and dispenses with writing. Section 17(2) enacts the separability principle, stating, “[i]f the arbitration agreement forms part of another agreement, it shall, for the purposes of a ruling on jurisdiction, be treated as an independent agreement that may survive even if the main agreement is found to be invalid.” Separability means that an allegation that the main contract was procured by misrepresentation does not of itself defeat the arbitration clause, a point the Court of Appeal made in Haas v. Gunasekaram, 2016 ONCA 744 (“Haas”), at ¶ 39, stating, “in cases involving arbitration agreements, fraud does not necessarily vitiate everything. It is a matter of interpretation.” It does not, however, save a clause in a document the objecting party never signed, as the forgery case discussed below shows.

Competence-competence and section 17(1)

Section 17(1) is Ontario’s codification of the competence-competence principle, under which, in the words of the Supreme Court of Canada in Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 (“Dell”), at ¶ 70, “arbitrators should be allowed to exercise their power to rule first on their own jurisdiction.” The principle was developed in cases decided under the Model Law and the legislation modelled on it, and in Ontario Medical Assn. v. Willis Canada Inc., 2013 ONCA 745 (“Willis”), the Court of Appeal held that it applies equally to domestic arbitrations under the Act. Sharpe J.A. found at ¶ 30 that “[t]he power conferred on a court to grant a stay and the power of the arbitrator to determine his or her own jurisdiction are substantially the same under both regimes,” and concluded at ¶ 37 that “absent legislative language or binding authority pointing in another direction, I would hold that it applies to the Arbitration Act, 1991.” The Supreme Court confirmed the point for Ontario in Uber Technologies Inc. v. Heller, 2020 SCC 16 (“Uber”), at ¶¶ 31-32, and restated the rationale in Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41 (“Peace River”), at ¶ 41, which Kurz J. quoted in Saugeen Shores (Town) v. 2706913 Ontario Inc., 2026 ONSC 4927 (“Saugeen Shores”), at ¶ 35, as follows, “[t]his reflects the presumption that arbitrators have fact-finding expertise comparable to that of courts, and that the parties intended an arbitrator to determine the validity and scope of their agreement.”

The practical effect is a rule of priority. Where a party sues despite an arbitration clause and the other moves to stay under s. 7, the court asks only whether it is arguable that the dispute falls within the agreement, and if it is, the court stays the action and leaves the jurisdictional question to the arbitrator. The framework comes from Haas at ¶ 17 and from Dalimpex Ltd. v. Janicki (2003), 64 O.R. (3d) 737 (C.A.) (“Dalimpex”), at ¶ 21, which adopted the statement that “it is not for the court on an application for a stay of proceedings to reach any final determination as to the scope of the arbitration agreement or whether a particular party to the legal proceedings is a party to the arbitration agreement, because those are matters within the jurisdiction of the arbitral tribunal.” In Willis, the plaintiff said it had never been a party to the agreement containing the clause, and the motion judge nonetheless stayed the action, finding “an arguable case that the OMA and its claim were governed by the arbitration clause,” making “no determination that the OMA was a party to the arbitration agreement” and “leaving that issue to be decided by the arbitrator” (¶ 12). The same approach governs a party who goes to court first to have the arbitration restrained. In NetSys Technology Group AB v. Open Text Corp., 1999 CanLII 14937 (S.C.J.), Stinson J. refused an injunction limiting the scope of an arbitration, holding at ¶ 40 that “the question of the scope of the authority conferred upon the arbitrator by the parties’ arbitration clause is to be decided by the arbitrator,” and in Saugeen Shores, decided in August 2026, Kurz J. dismissed a municipality’s application for a declaration that its dispute with its lessee was not arbitrable, holding at ¶ 43 that “the issue of the arbitrability of the issues in dispute between the parties must first be determined by an arbitrator selected pursuant to art. 13.1 of the Lease.”

The priority is one of sequence rather than of deference. As the Court of Appeal explained in Russian Federation v. Luxtona Limited, 2023 ONCA 393 (“Luxtona”), at ¶ 34, competence-competence “does not require any special deference be paid to an arbitral tribunal’s determination of its own jurisdiction,” and is “best understood as ‘a rule of chronological priority’ rather than as ‘empowering the arbitrators to be the sole judge of their jurisdiction.’” The arbitrator goes first; the court, when its turn comes, decides for itself.

The exceptions, and when the court decides first

The general rule has exceptions, and they come from Dell. Sharpe J.A. summarized them in Willis at ¶ 22, stating, “[t]hat general rule should be departed from ‘only if the challenge to the arbitrator’s jurisdiction is based solely on a question of law,’” that “[i]f the challenge requires the production and review of factual evidence, the court should normally refer the case to arbitration,” and that where questions of mixed law and fact are raised, the court should refer the issue to the arbitrator “unless the questions of fact require only superficial consideration of the documentary evidence in the record.” The Supreme Court in Uber at ¶ 36 described the “essential question” on the superficial-review branch as “whether the necessary legal conclusions can be drawn from facts that are either evident on the face of the record or undisputed by the parties,” and added a further exception at ¶¶ 37-46 for the case in which referring the challenge to the arbitrator would mean that it is never decided, holding at ¶ 46 that “a court should not refer a bona fide challenge to an arbitrator’s jurisdiction to the arbitrator if there is a real prospect that doing so would result in the challenge never being resolved.” Perell J. restated the whole scheme in Electek Power Services Inc. v. Greenfield Energy Centre Limited Partnership, 2022 ONSC 894 (“Electek”), at ¶¶ 132-134, observing at ¶ 134 that “[t]he issue of whether an arbitrator has jurisdiction is a matter of contract formation and interpretation and the interpretation of a contract is a question of mixed fact and law, and thus pursuant to the competence-competence principle, the court should defer to the arbitrator unless the interpretative question can be answered based on a superficial examination of the documentary proof in the record.”

Saugeen Shores illustrates how narrow the exceptions are in practice. The municipality asked the court to decide for itself whether its dispute with its lessee fell within the lease’s arbitration provisions. Kurz J. held at ¶ 42 that the competence-competence principle applied and that the exceptions did not, finding that “the issue before the court is one of contractual interpretation rather than one of pure law,” that the clause’s words “are at least amenable to the interpretation offered by the Lessee,” and that they “are not simply amenable to superficial review, as defined by Abella J. in Uber,” and noted that the lessee had not “requested arbitration for the purpose of delay.” The result was that the arbitrator, once appointed, would decide arbitrability first, with the court’s turn to come under s. 17(8).

A person who is not a party to the arbitration and has taken no part in it has a separate route. Section 48(1) provides that, “on the application of a party who has not participated in the arbitration, the court may grant a declaration that the arbitration is invalid” on four (4) grounds, including that “the arbitration agreement is invalid or has ceased to exist” and that “the arbitration agreement does not apply to the dispute,” and s. 48(2) allows the court to enjoin the commencement or continuation of the arbitration. The applicant in Electek began under s. 48 before the panel had ruled, and Myers J. declined to hear the application on an urgent basis, observing that “[t]he competence-competence principle suggests the panel should rule on its jurisdiction” first (¶ 10). The section is confined by its terms to a party to the arbitration agreement who has stayed out of the arbitration. In Specialty Life Inc. v. Daumier Financial Services Inc., 2026 ONSC 5696 (“Specialty Life”), strangers to the arbitration sought the declaration, and Cavanagh J. held at ¶ 80 that “[t]he Lue Applicants are not parties to the arbitration who have not participated in the arbitration,” so that “[t]hey do not have status under s. 48(1)(d) to seek a declaration that the Arbitration Award is invalid.”

The kinds of jurisdictional objection

The cases decided under s. 17 fall into five (5) groups, and Tamar Meshel’s Arbitration Law: Statutes, Cases and Commentary (LexisNexis) at § 10.09[5][b] lists them in the same way; namely, challenges to “the scope of an arbitration agreement,” to “whether an arbitration agreement exists,” to “whether a party is a signatory to an arbitration agreement,” to “whether a particular subject matter is arbitrable,” and to “whether an arbitration agreement sets out prerequisites to arbitration.”

The first group is the existence or validity of the agreement. In Electek, the question was whether purchase order terms containing an arbitration clause had ever become part of the contract, and Perell J. found that they had not, holding at ¶ 184 that “there is no Dispute Resolution Clause and no arbitration agreement,” so that “the Arbitrators did not have jurisdiction and their decision should be set aside.” In Clost v. Rennie, 2023 ONSC 6998 (“Clost”), the respondents claimed under a 2005 cottage lease containing an arbitration clause, the applicant said he had never signed it, and the parties appointed an arbitrator to decide “the issue of the existence and validity of the alleged arbitration agreement and the jurisdiction of the arbitrator” (¶ 22). The arbitrator found the clause valid; Bell J., on the s. 17(8) application, found on the whole of the evidence that the signatures were not the applicant’s and that the lease was “invalid, including the arbitration clause,” so that “there is no jurisdiction to conduct the proposed arbitration” (¶ 107).

The second group is whether a person is a party. In Covanta, an arbitrator added two (2) sub-subcontractors to an arbitration between an owner’s contractor and its subcontractor under a rule that permitted joinder of a person “provided such person is a party to the arbitration agreement” (¶ 20). Diamond J. held at ¶ 38 that “[a] decision whether or not a person ought to be added as a party to an arbitration is thus a jurisdictional decision,” found that the arbitrator’s reasons did “not provide any analysis of whether Lexsan and/or Nicholls were parties to the arbitration agreement” (¶ 46), found no incorporation of the arbitration clause into the subcontracts, and set the joinder aside, “thereby restoring the parties to the arbitration to be Covanta and CPP only” (¶¶ 50, 58). The Court of Appeal agreed at ¶ 16 of Covanta (C.A.) that “whether a person is a party to an arbitration agreement is a question of jurisdiction.” In Kaptyn, the question ran the other way; a shareholder of a corporate partner who was neither a “partner” nor a “principal” under a partnership agreement claimed the benefit of its arbitration clause, and Iacobucci J. held after a de novo reading of the agreement that he was a “party” within the clause and that his claims were arbitrable (¶¶ 66-71, 112).

The third group is scope. In HugoMB, a contractor whose right to work on a dam project had been terminated sought to arbitrate a $4.1 million claim for its disqualification from other Ministry tenders, and the arbitrator found a sufficient nexus. Centa J. disagreed, holding at ¶ 71 that the arbitration agreement was “limited to disputes directly linked to the performance of work under the contract,” and at ¶ 79 that “[i]t is one thing for an arbitrator to answer predicate questions that are intrinsically related to the ultimate issues that the parties have agreed to arbitrate. It is quite another to suggest that the arbitrator can leap the fence of her jurisdiction to graze for related issues in the surrounding meadow.” In 1107051 Ontario Ltd. v. GG Kingspa Enterprises Limited Partnership, 2022 ONSC 1847 (“GG Kingspa”), a co-tenancy’s management committee was deadlocked on whether a King Street West development should include a hotel, and the arbitrator accepted jurisdiction under a clause covering any dispute arising “under this Agreement.” McEwen J. held at ¶ 56 that “the dispute does not arise under the Agreement between the Parties,” since nothing in it gave either party “a right to a certain configuration” (¶ 57), and that “[t]he Parties got exactly what they bargained for when they drafted the Agreement” in requiring unanimity (¶ 65). In Iris Technologies Inc. v. Rogers Communications Canada Inc., 2022 ONCA 634 (“Iris”), the scope question was whether a counterclaim fell within the exclusive jurisdiction of the CRTC, and the Court of Appeal confirmed at ¶ 9 that “[t]his was clearly an issue over the Arbitrator’s jurisdiction to hear and decide the counterclaim.”

The fourth group is conditions precedent. In PCL Constructors Canada Inc. v. Johnson Controls Canada LP, 2022 ONSC 1642 (“PCL”), the objecting party argued that the arbitrators under two (2) facility co-ordination agreements for P3 projects lacked jurisdiction because the claimant had not complied with the pre-arbitration steps in those agreements, including the delivery of reports opining on whether an alleged defect was a construction defect (¶¶ 10, 15). Conway J. agreed with the arbitrators that “the steps set out in the FCA were intended by the parties to move them expeditiously towards a resolution of a dispute,” that “[t]here is nothing in the language of the FCA that characterizes these steps as mandatory prerequisites to an arbitration or that sets out the consequences of any failure to comply with them,” and that “[i]f the parties intended such a specific result, they could have said so” (¶ 30). The decision is a caution to drafters who want pre-arbitration steps to be true conditions precedent; the agreement must say what happens when a step is missed.

The fifth group is the arbitrability of the subject matter, which s. 46(1)5 also makes a ground for setting aside an award. GG Kingspa touches it; McEwen J. accepted at ¶ 55 that “parties can arbitrate non-justiciable disputes if they clearly and specifically intended to do so,” but found that they had not.

What falls outside s. 17 altogether is the procedural ruling. In Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642 (“Inforica”), the Court of Appeal held at ¶ 16 that “[t]he words ‘jurisdiction to conduct the arbitration’ in s. 17(1) connote jurisdiction over the entire substance or subject matter of the case, not jurisdiction to make interlocutory or procedural orders that do not determine the merits of the dispute and that are made along the way to final resolution of the issues,” so that an order for security for costs could not be challenged under s. 17(8) or s. 46. In Optiva Inc. v. Tbaytel, 2022 ONCA 646 (“Optiva”), the arbitrator’s decision to allow a summary judgment procedure “was not a decision under s. 17(1) of the Act” and “[s]ection 17(8) did not apply” (¶ 28). As the Court of Appeal observed in Covanta (C.A.) at ¶ 18, however, “[w]hether a person is a party to an arbitration agreement does not cease to be a jurisdictional question simply because it is addressed by the arbitrator as a preliminary matter.”

The time for the objection and the consequences of delay

Section 17 fixes the time. Under s. 17(3), “[a] party who has an objection to the arbitral tribunal’s jurisdiction to conduct the arbitration shall make the objection no later than the beginning of the hearing or, if there is no hearing, no later than the first occasion on which the party submits a statement to the tribunal.” Under s. 17(5), an objection “that the arbitral tribunal is exceeding its authority” must be made “as soon as the matter alleged to be beyond the tribunal’s authority is raised during the arbitration.” Section 17(4) preserves the objection of a party who has appointed or participated in appointing an arbitrator, and s. 17(6) allows a late objection only “if the arbitral tribunal considers the delay justified.” Behind those provisions stands s. 4(1), under which a party who participates “despite being aware of non-compliance” with the Act or the agreement and does not object in time “shall be deemed to have waived the right to object.”

The courts enforce the time limits strictly. In Piazza Family Trust v. Veillette, 2011 ONSC 2820 (Div. Ct.) (“Piazza”), Smith J. held at ¶ 70 that “[t]he intention of this section is to prevent parties from participating in arbitration proceedings and withholding a possible objection to the jurisdiction of the arbitrator until they become aware of the result,” and at ¶ 71 that s. 17(3) “was intended to prevent parties from seeking the benefit of arbitration and proceeding without objection and then attempting to contest the jurisdiction of the arbitrator once the result is known.” Vermette J. summarized the line in Tire Pit Inc. v. Augend 6285 Yonge Village Properties Ltd., 2022 ONSC 6763, at ¶ 26, stating, “[c]onsistent with subsection 17(3) of the Act, this Court has repeatedly held that a party’s failure to raise a jurisdictional objection at the outset of an arbitration precludes that party from doing so later on.”

The leading recent illustration is Joseph Lebovic Charitable Foundation v. Jewish Foundation of Greater Toronto, 2024 ONSC 4400 (“Lebovic”). The applicants, who were the respondents in an arbitration under a donor agreement, had delivered a counterclaim for relief which they argued the arbitrator had jurisdiction to grant, and had issued their own notice of demand for arbitration raising the same issues and invoking the arbitration clause (¶¶ 10, 23). About eighteen (18) months after the other side’s notice of demand, and a week before the hearing, they retained new counsel and objected to the arbitrator’s jurisdiction (¶¶ 14, 22, 25, 29). They argued that s. 17(3) gave them until the beginning of the hearing. Akbarali J. rejected the argument at ¶ 30, holding that s. 4(1) “speaks to when waiver of the right to object will be deemed,” that “[i]t does not restrict a court’s, or an arbitrator’s, ability to conclude that the right to object was actually waived at some time prior than it would have been deemed to be waived,” and that the party could be held to have “agreed to remit certain issues to the arbitrator which would necessitate waiving any jurisdictional challenge.” The court found support in s. 46(3), which bars setting aside an award for want of jurisdiction where the party “has agreed to the inclusion of the dispute or matter” or “waived the right to object to its inclusion” (¶ 31), observed that on the applicants’ argument a party “was free to refer an issue to the arbitrator itself, under jurisdiction it agrees is effective and appropriate, and then contest jurisdiction as long as it did so before the start of the hearing,” which “makes no logical or commercial sense” (¶ 33), and concluded at ¶ 36 that the challenge “was strategic, not genuine.”

Participation without objection has the same effect after the award. In Specialty Life, Cavanagh J. held at ¶ 36 that “[b]y defending SLI’s claim and advancing a counterclaim, and by participating in the Arbitration, Daumier consented to the jurisdiction of the Tribunal over the claims by SLI in the Notice of Arbitration and waived its right to object to the jurisdiction of the Tribunal.” In Tire Pit at ¶ 28, the applicant was “precluded from raising a jurisdictional issue at this stage as it failed to raise any jurisdictional objection before the arbitrator.” And in Cricket Canada v. Alberta Cricket Council, 2020 ONSC 3776 (“Cricket Canada”), the objecting party had filed an answer to the request for arbitration “which did not contest the Centre’s jurisdiction,” had selected arbitration over med-arb and had proposed arbitrators before it retained counsel, who raised the objection (¶¶ 7-8); the arbitrator decided the objection on its merits rather than on the delay, and Koehnen J. upheld her ruling (¶¶ 8, 28).

The tribunal’s choice between a ruling and an award

Section 17(7) gives the tribunal an election, stating, “[t]he arbitral tribunal may rule on an objection as a preliminary question or may deal with it in an award.” The choice decides which route to the court is open afterwards. A preliminary ruling goes to the court under s. 17(8) within thirty (30) days, is decided afresh, and cannot be appealed. A jurisdictional decision contained in an award goes to the court, if at all, by an appeal under s. 45 where one is available or by an application to set aside under s. 46, and the court’s decision on those routes can itself be appealed under s. 49 with leave.

The courts have taken a substantive view of what counts as a preliminary ruling. In Clost, the respondents argued that the stand-alone agreement under which the arbitrator decided only the jurisdiction question had created “a ‘complete, stand-alone arbitration in which the Ruling is the award’” (¶ 30), so that s. 17(8) did not apply and only ss. 45 and 46 did. Bell J. rejected the argument at ¶ 31, holding that “[s]ection 17 of the Act distinguishes between a ruling and an award,” that the arbitrator “ruled on the preliminary question of jurisdiction, not on the merits of the underlying dispute,” and that the respondents’ position “would effectively read s. 17(8) out of the Act.” At ¶ 29, the court adopted the definition from GG Kingspa that “[a]n ‘award’ is an arbitrator’s ultimate decision on the merits of a dispute,” a definition McEwen J. had drawn at ¶ 31 of that case from Inforica. In the Court of Appeal’s decision quashing the motion for leave to appeal in Lebovic, 2024 ONCA 933 (“Lebovic (C.A.)”), the arbitrator had reserved his ruling on jurisdiction and released it after the evidence on the merits had been heard but before closing submissions, in a decision separate from the later award (¶ 4). The court held at ¶ 9 that “the issue of jurisdiction was argued as a preliminary question before the arbitrator; he did not wait to deal with this issue in the award, but instead issued a separate, preliminary ruling,” and that “[w]hile he may have delivered his ruling after the parties had already commenced the hearing of the arbitration on the merits, this does not alter the fact that the issue was raised and decided as a preliminary question.”

The same distinction governs international arbitrations under art. 16(3) of the Model Law, which is Schedule 2 to the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (the “ICAA”). In United Mexican States v. Burr, 2021 ONCA 64 (“Burr”), a NAFTA tribunal whose rulings were subject to review in the Ontario Superior Court bifurcated the proceeding and issued a “Partial Award” finding jurisdiction over most of the claims (¶¶ 3-4). Lauwers J.A. held that the label did not matter; the text of art. 16(3) “makes a clear distinction between a jurisdictional plea that is pursued ‘as a preliminary question’ and a jurisdictional plea that is pursued ‘in an award on the merits’” (¶ 9), the tribunal “saw itself as addressing jurisdiction as a preliminary question” and had moved on to the merits phase (¶¶ 13-14), and “[t]here is also no basis for concluding, as Mexico argues, that the label of ‘Partial Award,’ which the arbitral tribunal attached to its ruling, is a sufficient hook with which to snag art. 34(1)” (¶ 25). The court contrasted United Mexican States v. Cargill, Inc., 2011 ONCA 622, where the tribunal had dealt with the jurisdictional objection in its final award on the merits, so that the art. 16(3) prohibition on appeal did not apply (¶¶ 20-21).

The section 17(8) application as a hearing de novo

The nature of the s. 17(8) application was settled in Electek. The respondent there argued that the application was “in the nature of a judicial review application governed by the principles of appellate and judicial review” (¶ 20). Perell J. held at ¶ 21 that “[t]he case law establishes that s.17(8) of the Arbitration Act, 1991 applications and the matching provision under the International Commercial Arbitration Act, 2017 are hearings de novo,” quoted at ¶ 22 the Divisional Court’s reasoning in The Russian Federation v. Luxtona Limited, 2021 ONSC 4604 (Div. Ct.), at ¶ 22, that the court is “to decide the matter,” that it is not “to review the tribunal’s decision,” and that the statutory language “is clear language conferring original jurisdiction on the court to adjudicate the question of the tribunal’s jurisdiction,” and concluded at ¶ 23 that “[w]hat is now before the court is a normal application under the Rules of Civil Procedure. It is not an appeal.” The Court of Appeal confirmed the international version in Luxtona at ¶ 40, holding that “a court assessing an arbitral tribunal’s jurisdiction is not limited to the record that was before the tribunal,” and that “an application to set aside an arbitral award for lack of jurisdiction is a proceeding de novo, not a review of or appeal from the tribunal’s decision,” and the domestic cases have followed; see Clost at ¶¶ 4 and 24-27, HugoMB at ¶ 11, Lebovic at ¶ 18 and Kaptyn at ¶¶ 51-53.

Two (2) consequences follow. The first concerns the evidence. Because the court decides the matter, fresh evidence is admissible without a strict application of the test for fresh evidence on appeal, but Luxtona added a caution at ¶¶ 41-42, that “where a party has participated fully in the arbitration, its failure to raise a piece of evidence before the tribunal may be relevant as to the weight the court should assign that evidence,” and that parties should not expect “two evidential bites of the cherry.” In practice the record before the arbitrator is the core of the record before the court. In Clost, the parties agreed “to rely on the entire record that was before the Arbitrator without further cross-examination” (¶ 23), and Bell J. declined to admit a supplementary affidavit the arbitrator had also refused, in part because “the parties agreed to put before this court the evidentiary record that was before the Arbitrator” (¶ 42). In Electek, the record consisted of the evidence filed on the earlier motion, the evidence and transcripts from the four (4) day hearing before the panel, the panel’s decision and “several affidavits filed for the purposes of the s.17(8) application” (¶ 29), one of which was struck as inadmissible hearsay (¶ 35).

The second consequence concerns the standard. Many decisions describe the standard as correctness; see Cricket Canada at ¶ 2, Covanta at ¶ 44, GG Kingspa at ¶ 20 and Lebovic at ¶ 19. In PCL, Conway J. rejected the argument that an arbitrator’s interpretation of the agreement attracted deference as a question of mixed fact and law, reasoning at ¶ 21 that “an arbitrator will typically have to interpret the contract between the parties to determine whether the arbitrator has jurisdiction,” so that accepting the submission “would reduce the standard of review for jurisdiction from correctness to deference in most cases,” and at ¶ 22 that the respondent’s approach “requires me to accept Johnson’s (and the arbitrators’) interpretation of the FCA before I determine which standard of review applies.” Other decisions treat the language of review as beside the point. Centa J. said in HugoMB at ¶ 11 that “[t]he principle of competence-competence does not require that any deference be paid to an arbitrator’s determination of her own jurisdiction,” that “[t]he usual principles and standards of appellate review or judicial review do not apply,” and that “I am simply to ‘decide the matter’ of whether or not the arbitrator has jurisdiction over claim #7,” and Iacobucci J. adopted that passage in Kaptyn at ¶¶ 51-53. The difference is one of vocabulary; on either formulation the court reaches its own conclusion on the agreement and the evidence, and Perell J. made the point at ¶¶ 124-125 of Electek that on a s. 17(8) application “the court cannot avoid deciding the matter of the arbitrator’s jurisdiction by the competence-competence principle,” since “the Arbitrators have ruled on jurisdiction, and now it is the court’s turn to do so de novo.” Nor does a clause making the arbitrator’s decision final and binding, with no appeal, stand in the way; Iacobucci J. held in Kaptyn at ¶¶ 50 and 52 that “[a]n application to decide a question of jurisdiction is not an appeal” and that “[a] clause precluding an appeal does not prevent an application to a court to consider de novo the preliminary question of the arbitrator’s jurisdiction.”

The analysis the court applies is the one it would apply on a stay motion, without the deferral. In HugoMB, Centa J. applied the Haas framework, asking “[w]hat is the subject matter of the dispute,” “[w]hat is the scope of the arbitration agreement” and “[d]oes the dispute fall within the scope of the arbitration agreement” (¶ 14), and answered the last question against arbitrability for five (5) reasons (¶¶ 70-76). In Kaptyn, Iacobucci J. interpreted the partnership agreement to decide whether a shareholder was a “party,” observing at ¶ 63 that “[t]o reach decisions on these questions, I must interpret the partnership agreement” (¶¶ 59-71). In Clost, the question was one of fact, and Bell J. applied the ordinary burden, holding at ¶ 35 that “[i]n cases of potential forgery, the burden is on the party seeking to authenticate a document to prove that it was signed by the other party, on a balance of probabilities,” and at ¶ 38 that “[t]his is a hearing de novo, and not a motion for interim relief. I am required to make findings of fact and credibility that go to the core issue in the application.”

The thirty days and the arbitration in the meantime

The application must be made “within thirty days after receiving notice of the ruling.” Section 17(8) contains no power to extend that period, and the thirty (30) days in s. 47(1) for an appeal or an application to set aside an award is equally fixed, except where corruption or fraud is alleged (s. 47(2)). In Toronto Standard Condominium Corp. No. 1466 v. Weinstein, 2021 ONSC 1306 (“Weinstein”), Davies J. set out both routes, holding at ¶ 12 that “if the arbitrator rules on a jurisdictional objection as a preliminary question, a party may bring an application to the Court to decide the matter within 30 days of receiving notice of the ruling,” and that a ruling made in the final award is challenged by appeal under s. 45 or by an application to set aside under s. 46(1), and applied the limit strictly, holding at ¶ 14 that even on the most generous view of the starting date the applicant “only had 30 days from that date to initiate his application.” Newton J. explained the policy in Optiva Inc. v. Tbaytel, 2021 ONSC 2929, at ¶¶ 42-43, stating that s. 17(8) “requires the party seeking court review of jurisdiction and objections to do so promptly, within 30 days of the ruling,” and that “[t]he rationale for such a timeline is clear. Objections to jurisdiction and procedure are to be determined at the outset, and not after the arbitration proceeding and the award.”

The application does not stop the arbitration. Section 17(10) provides that “[w]hile an application is pending, the arbitral tribunal may continue the arbitration and make an award,” and the Court of Appeal held in Universal Settlements International Inc. v. Duscio, 2012 ONCA 215, at ¶ 49, that the convention under which parties maintain the status quo once a notice of application is served “does not apply to stop an ongoing arbitration proceeding,” since “[t]hat the convention does not apply is made clear by s. 17(10).” The international provision is to the same effect; s. 11(3) of the ICAA provides that where the tribunal rules on the plea as a preliminary question and an application is brought, “the proceedings of the arbitral tribunal are not stayed with respect to any other matters to which the arbitration relates and are within its jurisdiction,” and in Burr the merits phase proceeded while Mexico pursued its application and attempted appeal (¶ 14). A party who wants the arbitration halted pending the court’s decision must ask the tribunal or seek an injunction, and in Electek the court declined to hear the matter urgently and left the panel to rule first (¶ 10).

The remedies on the application

Where the court finds that the arbitrator was wrong to accept jurisdiction, it sets the ruling aside and may declare the position. In Clost, the order was a declaration that the lease was invalid and an order setting aside the preliminary ruling, “with costs of the jurisdiction motion to Norm” (¶ 113). In HugoMB, the court set aside the arbitrator’s decision, declared “that Claim #7 is not arbitrable,” set aside the arbitrator’s costs award on the jurisdiction motion and ordered the sums paid under it returned, and remitted the costs of the jurisdiction motion to the arbitrator (¶ 85). In GG Kingspa, the order set aside the decision together with “a declaration that the Arbitrator does not have jurisdiction over the claim brought by Great Gulf” (¶ 72). Where the court finds that the arbitrator was right, the application is dismissed and the arbitration proceeds, as in PCL, Cricket Canada, Lebovic and Kaptyn.

The court’s powers under s. 17 are confined to deciding the matter. In GG Kingspa, both parties had at one point proposed that the jurisdictional question be sent back to the arbitrator to be decided with the merits on a full record, and McEwen J. thought that course “would have been preferable” (¶ 27), but held that the Act did not permit it; ss. 17, 45 and 46 “do not provide this Court with the jurisdiction to refer a decision on jurisdiction back to the arbitrator to determine the issue in conjunction with the merits” (¶ 28), and s. 46(8), which allows the court to remit an award, “does not apply to an issue of jurisdiction which is governed by s. 17” because a preliminary ruling is not an award (¶¶ 31-32). The costs of the jurisdiction motion before the arbitrator are within the court’s reach; Bell J. held in Clost at ¶ 112 that “this court has jurisdiction to rule on the costs of the motion before the Arbitrator given that this is a hearing de novo and the court has the jurisdiction ‘to decide the matter’; that would necessarily include the issue of costs,” and in the costs decision, 2024 ONSC 1012, awarded them on a substantial indemnity scale for conduct “deserving of judicial sanction” (¶¶ 12-13). Where the tribunal has made no costs award and the court has found that no arbitration agreement existed, the court may fix the costs of the arbitration hearing itself, as Perell J. did in Electek Power Services Inc. v. Greenfield Energy Centre Limited Partnership, 2022 ONSC 2437, awarding $300,000 for the hearing before the panel and $125,000 for the application (¶ 5).

Because a preliminary ruling is not an award, the other routes are closed while it stands alone. Bell J. observed in Clost at ¶¶ 108-109 that s. 45(1) “is predicated on there being an award” and that “the grounds on which the court may set aside an arbitral award under s. 46(1) are predicated on there being an award,” and that the ruling on jurisdiction “was not an award within the meaning of the Act.” A party who misses the thirty (30) days therefore cannot fall back on s. 46 until an award is made, and when it is, s. 46(3) and s. 46(5) will be raised against any objection that was waived.

The bar on appeals in section 17(9) and its limits

Section 17(9) is categorical, and the Court of Appeal has applied it as written. In Iris, the application judge had reversed the arbitrator and dismissed the counterclaim, and the losing party sought leave to appeal under s. 49. The court quashed the motion, holding at ¶ 7 that “[t]he Arbitration Act, 1991 is clear that there is no further right of appeal from the decision of a Superior Court judge hearing a review of an Arbitrator’s decision on a preliminary question,” that the appeal provisions in ss. 45 to 50.1 “relate to an appeal of an award,” and that “[t]he Arbitrator did not make an award. Rather, he ruled on a preliminary objection.” At ¶ 8 it added that “[a]s s. 17(9) makes clear, there is no appeal from the reviewing court’s decision. The provision could not be clearer,” and at ¶ 10 that “[t]he statute makes it clear that there is not when the issue is determined as a preliminary question. With respect, the merits of the matter are irrelevant to that determination.” The court applied the same reasoning in Clost v. Rennie, 2024 ONCA 514, quashing both an appeal and a motion for leave to appeal and awarding the successful applicant $18,000 in costs (¶¶ 2-5), and in Lebovic (C.A.), where it observed at ¶ 12 that “[a] motion to quash should not have been required” and awarded $15,000. In Covanta (C.A.), the court quashed the appeal with costs of $20,000 (¶¶ 19-20), and in Burr, under the matching prohibition in art. 16(3) of the Model Law and s. 11(2) of the ICAA, the appeal was quashed with costs of $9,000 (¶ 30).

The bar has two (2) limits, and both turn on whether the application judge had jurisdiction under s. 17 in the first place. The first is the case in which the arbitrator’s ruling was not jurisdictional at all. In Inforica, the application judge had set aside an order for security for costs under ss. 17(8) and 46(1), and the Court of Appeal held that, because the order was neither a ruling on “jurisdiction to conduct the arbitration” nor an award, the application judge “had no jurisdiction to entertain the application,” so that “this court has jurisdiction pursuant to s. 6(1)(b) of the Courts of Justice Act” to hear the appeal (¶ 31), and at ¶ 32 that “[i]f the application judge did not have jurisdiction to entertain the application under s. 17 in the first place, s. 17(9) does not bar an appeal from her decision.” The attempt to use that opening in Covanta (C.A.) failed, because the joinder ruling in that case was jurisdictional (¶¶ 14-18). The second limit is the case in which the court finds that no arbitration agreement existed. Perell J. explained in Electek at ¶ 24 that “[i]f a court concludes that a dispute is not subject to arbitration, then an appeal is not barred by the appeal provisions of the Arbitration Act, 1991,” since “[w]here there is no arbitration agreement, the Arbitration Act, 1991 has no application,” and concluded at ¶ 25 that “[h]aving regard to my decision that there is no arbitration agreement in the immediate case, my decision de novo can be appealed.” The reasoning comes from Huras v. Primerica Financial Services Ltd. (2000), 137 O.A.C. 79 (C.A.), as applied to the stay provisions in Willis at ¶¶ 40-42 and to s. 17(9) in Inforica at ¶¶ 31-32. The Court of Appeal’s decision in Clost sits uneasily beside it. The application judge there had found the lease, and with it the arbitration clause, invalid, and the court nonetheless quashed the appeal under s. 17(9) in brief reasons that did not mention Electek (¶¶ 3-4). A party who loses a s. 17(8) application on the footing that no arbitration agreement exists should therefore not count on an appeal.

The policy behind the bar was stated in Willis in the parallel context of s. 7(6). Sharpe J.A. acknowledged at ¶ 48 “an understandable inclination to resist the idea that any decision is not subject to review by way of appeal,” but held that “there are situations where the need for finality and an expeditious resolution trump reviewability,” and observed at ¶ 49 that referring the question to the arbitrator first “does not eliminate the possibility of judicial review,” since “s. 17(8) provides for review of a preliminary ruling on jurisdiction and s. 46 provides that an award may be set aside if it strays beyond what is covered by the arbitration agreement.”

Jurisdiction after the award under section 46

Where the tribunal deals with jurisdiction in the award, or where a party raises the question for the first time after the award, the route is s. 46. Three (3) of its grounds concern jurisdiction; namely, that “[t]he arbitration agreement is invalid or has ceased to exist” (s. 46(1)2), that “[t]he award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement” (s. 46(1)3), and that “[t]he subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law” (s. 46(1)5). Section 46(2) requires the court, where paragraph 3 applies and it is reasonable to separate the decisions, to “set aside the impugned decisions and allow the others to stand.” Sections 46(3) and (5) bar relief where the party agreed to the inclusion of the matter, waived the objection, agreed that the tribunal could decide what disputes had been referred to it, or is deemed under s. 4 to have waived the objection, and s. 46(6) allows the court to entertain a ground that could have been raised under s. 17 only “if it considers the applicant’s failure to make an objection in accordance with section 17 justified.”

The Court of Appeal’s decision in Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254 (“Alectra”), governs the s. 46(1)3 inquiry. Huscroft J.A. held at ¶ 25 that “the court’s authority to set aside an arbitration award under that subsection depends on the mandate the arbitration agreement confers on the arbitrator to resolve a particular dispute,” at ¶ 26 that “if an arbitration agreement provides that an arbitrator shall resolve a particular question and the arbitrator does so, the court has no authority to set aside the award on the basis that the arbitrator’s decision is unreasonable or incorrect,” and at ¶ 27 that “[s]ection 46(1)3 is not an alternate appeal route and must not be treated as such.” At ¶ 43 the court confirmed, citing Smyth v. Perth and Smiths Falls District Hospital, 2008 ONCA 794, at ¶ 17, that “s. 46(1)3 sets out a jurisdictional question that must be answered correctly,” and at ¶ 44 that “once the jurisdictional question is answered, in the absence of a right of appeal pursuant to s. 45 the court has no authority to go on to review the arbitrator’s award for reasonableness.” As Vermette J. put it in Tire Pit at ¶ 25, “[j]urisdiction is determined not by asking whether the arbitrator made a correct decision, but by asking whether the arbitrator had the authority to make the inquiry that they made.”

The s. 46 route is subject to the same waiver rules as s. 17. In Specialty Life, the losing party in the arbitration sought to set aside the awards under both s. 17(8) and s. 46 for want of jurisdiction, and Cavanagh J. held that its defence, counterclaim and participation amounted to consent and waiver (¶ 36), and declined to set aside the awards on the ground that they dealt with a dispute the agreement did not cover (¶ 37). In Lebovic at ¶ 31, s. 46(3) was the court’s confirmation that waiver can precede the deemed waiver in s. 4. Our article on setting aside an arbitral award in Ontario deals with the s. 46 grounds in full.

International arbitrations under article 16 and section 11 of the ICAA

For arbitrations governed by the ICAA, the scheme is the Model Law’s. Article 16(1) confers competence-competence and separability in terms that match s. 17(1) and (2). Article 16(2) fixes the time for the plea, stating, “[a] plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence,” and “[a] plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings,” with the tribunal able to “admit a later plea if it considers the delay justified.” Article 16(3) provides that the tribunal may rule on the plea “either as a preliminary question or in an award on the merits,” that where it rules as a preliminary question that it has jurisdiction, any party may within thirty (30) days request the court “to decide the matter, which decision shall be subject to no appeal,” and that the tribunal may continue the proceedings and make an award while the request is pending. Section 11 of the ICAA then provides in subsection (1) that where “an arbitral tribunal rules on a plea that it does not have jurisdiction, any party may apply to the Superior Court of Justice to decide the matter,” in subsection (2) that “[t]he court’s decision under subsection (1) is not subject to appeal,” and in subsection (3) that the tribunal’s proceedings on other matters are not stayed.

The two (2) regimes have been read together. Perell J. noted in Electek at ¶ 22 that s. 11(1) of the ICAA “is the same as s. 17(8),” and relied on the Divisional Court’s reasoning in Luxtona. The Court of Appeal in Iris at ¶ 11 noted that its conclusion under s. 17(9) was “consistent with the decision of this court in United Mexican States v. Burr,” and in Covanta (C.A.) at ¶ 13 that “[t]he same prohibition is set out in s. 17(9).” The one point of difference to watch is the time for the plea; under the Model Law it runs out with the statement of defence, while under the Act it runs to the beginning of the hearing, subject to the waiver cases discussed above. The Luxtona holding that the court hears the matter de novo and may receive fresh evidence applies to both regimes, and so does the court’s observation at ¶ 51 that, as the Court of Appeal said in Cargill at ¶ 48, “when deciding its own jurisdiction, the tribunal has to be correct.”

Practical considerations

Six (6) points decide most jurisdictional contests.

The first is to object at once, in writing, and in terms. Section 17(3) sets an outside limit, but Lebovic, Piazza and Specialty Life show that a party who defends, counterclaims or invokes the clause itself has been held to have accepted the tribunal’s jurisdiction long before the hearing begins. A respondent who disputes jurisdiction should say so in its first communication with the tribunal and in every pleading, should take no step that invokes the agreement for its own benefit, and should ask the tribunal to decide the objection before the merits are pleaded. Where the objection is that the tribunal is exceeding its authority on a particular matter, s. 17(5) requires it to be made as soon as the matter is raised.

The second is to think about s. 17(7) before asking the tribunal to rule. A preliminary ruling leads to a de novo hearing in the Superior Court within thirty (30) days and to a decision that cannot be appealed; a ruling in the award leads to the s. 45 and s. 46 routes, with appeal rights under s. 49. A party confident of its position on the record may prefer the finality of the first route, while a party whose case depends on evidence not yet developed may prefer the second, and the tribunal can be addressed on the choice. The label the tribunal attaches will not control; Burr, Clost and Lebovic (C.A.) all turned on what the tribunal in fact decided.

The third is the record. The court will decide the matter on the evidence, and the evidence before the arbitrator will usually be the evidence before the court. The jurisdictional hearing before the tribunal should therefore be conducted as if it were the court hearing, with affidavits, documents, cross-examination and expert evidence where the question turns on fact, as it did in Clost, where the record included the reports of four (4) expert witnesses and extensive cross-examinations (¶ 23). Fresh evidence is admissible on the application, but Luxtona warns that evidence produced late “may well attract a degree of scepticism,” and a court may refuse what the arbitrator refused, as in Clost (¶¶ 41-42).

The fourth is the calendar. Thirty (30) days from notice of the ruling, with no power to extend, and no fallback on s. 46 until an award exists. The arbitration continues under s. 17(10) unless the tribunal agrees to pause or the court intervenes, so the applicant should ask the tribunal for a timetable that leaves room for the court’s decision and should be prepared to continue in the arbitration without prejudice while the application is pending.

The fifth is the forum for a party who says it is not a party. A person named in a notice of arbitration who says it never agreed to arbitrate has a choice between participating under protest and applying under s. 48 for a declaration, and the choice should be made deliberately; s. 48 is available only to a party “who has not participated in the arbitration,” and the competence-competence principle may lead the court to defer a s. 48 application until the tribunal has ruled, as it did in Electek (¶ 10).

The sixth is cost. The applicant in Covanta recovered $50,000 for the application (¶ 66); the unsuccessful applicants in Lebovic paid $26,610.61 by agreement (¶ 39); the costs in HugoMB were fixed at $7,000 on consent (¶ 84); the successful applicant in Electek recovered $425,000 for the arbitration hearing and the application together; the applicant in Clost recovered substantial indemnity costs of the jurisdiction motion and the application; and each of the parties who tried to appeal paid again, $9,000 in Burr, $15,000 in Lebovic (C.A.), $18,000 in Clost and $20,000 in Covanta (C.A.). A jurisdictional contest is a trial of the arbitration agreement, and the party that loses it usually pays a large part of the other side’s costs as well as its own.

How we can help

Grigoras Law acts as counsel in commercial arbitrations seated in Toronto, in shareholder, partnership, contract, lease, franchise and fraud disputes, and in the court proceedings that surround them. We advise on whether a dispute is arbitrable and who is bound by the clause, raise and resist jurisdictional objections before the tribunal under s. 17, bring and defend applications under ss. 17(8) and 48 of the Act and s. 11 of the ICAA, resist attempted appeals under s. 17(9), and bring and defend applications to set aside awards under s. 46 on jurisdictional grounds. Our arbitration practice and our commercial litigation practice are described on the pages linked here, our shareholder disputes practice covers the buy/sell, oppression and management disputes in which questions of who is bound to arbitrate most often arise, and our appellate practice covers the motions to quash and the appeals that follow a jurisdictional ruling. Our articles on staying a court action in favour of arbitration in Ontario, on arbitrating a shareholder dispute in Ontario, on evidence in a commercial arbitration in Ontario, on interim measures in aid of arbitration in Ontario, on costs in a commercial arbitration in Ontario, on setting aside an arbitral award in Ontario, on appealing an arbitral award in Ontario and on enforcing an arbitral award in Ontario take the dispute from the stay motion to the award and its enforcement.

This article is general information about the law of Ontario as of October 2026 and is not legal advice. Whether an arbitrator has jurisdiction depends on the arbitration agreement, the conduct of the parties and the evidence, and the authorities cited should be read in full before they are relied on.