An arbitral award made under the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”), binds the parties from the day it is made. 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).” The award cannot, on its own, reach the losing party’s bank account. A sheriff executes a writ of seizure and sale, and a bank answers a notice of garnishment, on the strength of an order of the court, and an award is not an order of the court. The Supreme Court of Canada put the point in Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19 (“Yugraneft”) at ¶¶ 44-45, stating that “[a]n arbitral award is not a judgment or a court order” and that, “[u]nlike a local judgment, an arbitral award is not directly enforceable.” The step between the award and the writ is the application to enforce, which s. 50 of the Act provides for awards made in Ontario or elsewhere in Canada, and which the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (the “ICAA”), provides for international and foreign awards by giving the force of law to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted in New York on June 10, 1958 (the “Convention”), and to the UNCITRAL Model Law on International Commercial Arbitration, adopted on June 21, 1985 and amended on July 7, 2006 (the “Model Law”). Enforcing awards is the fourth of the four (4) purposes for which s. 6 of the Act permits a court to intervene in an arbitration at all.
The court’s role on that application is narrow. For a domestic award, s. 50(3) provides that the court “shall give a judgment enforcing” it unless one of four (4) listed circumstances applies, and the Court of Appeal held in 108 Media Corp. v. BGOI Films Inc., 2019 ONCA 539 (“BGOI”) at ¶ 5, that the subsection “deprives a judge of jurisdiction to refuse to enforce an arbitral award except in certain circumstances.” For an international or foreign award, art. 35 of the Model Law and art. III of the Convention direct recognition and enforcement, and refusal is possible “only” on the grounds listed in art. 36 and art. V, which the courts construe narrowly. The Court of Appeal’s most recent decision on a foreign award, InFrontier AF LP v. Rahmani, 2026 ONCA 289 (“InFrontier”), released on April 21, 2026, upheld the enforcement against an Ontario resident of an award of more than US$2.5 million made in Dubai, and summarized the regime at ¶ 2 on the basis that “[t]he Convention favours enforcement of arbitral awards while respecting the parties’ autonomy to choose their own arbitral procedure.” A recent Ontario decision in which recognition was refused, Tianjin Dinghui Hongjun Equity Investment Partnership v. Du, 2023 ONSC 1808 (“Tianjin Dinghui”), turned on the absence of proper notice of the arbitration to the two (2) Toronto residents against whom an award of about $120 million had been made, and it shows where the limits lie.
This article sets out the law of enforcing a commercial arbitral award in Ontario as it stands in October 2026. It covers the application under s. 50 of the Act and the judgment it produces, the four (4) circumstances in which the court may decline, the position while the thirty (30) days for an appeal or a set-aside application are running or a challenge is pending, stays of execution after judgment, the ten-year limit, awards made elsewhere in Canada, the recognition and enforcement of international and foreign awards under the ICAA, collection after judgment, the drafting of the clause, and the practical considerations for the creditor and the debtor. It does not deal with family arbitration awards, which s. 50.1 of the Act makes enforceable only under the Family Law Act, R.S.O. 1990, c. F.3, or with labour arbitration awards. Our articles on setting aside an arbitral award in Ontario and on appealing an arbitral award in Ontario deal with the losing party’s two (2) routes of challenge, and this article deals with what happens when neither is taken, or when both have failed.
The award and the judgment
Section 50(8) of the Act provides that “[t]he court has the same powers with respect to the enforcement of awards as with respect to the enforcement of its own judgments.” Glustein J. explained the subsection’s work in Zenith Aluminum Systems Ltd. v. 2335945 Ontario Inc., 2021 ONSC 1128 (“Zenith”) at ¶ 33, stating that “[i]t is s. 50(8) which treats final arbitral awards in the same manner as final judgments.” Once the court gives judgment under s. 50(3), the creditor holds an order of the Superior Court of Justice for the payment of money, and Rule 60.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), makes the ordinary methods of enforcement available; namely, a writ of seizure and sale, garnishment, a writ of sequestration and the appointment of a receiver. The judgment also carries the court’s postjudgment interest. Section 129(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), provides that “[m]oney owing under an order, including costs to be assessed or costs fixed by the court, bears interest at the postjudgment interest rate, calculated from the date of the order.”
Interest before judgment is the arbitrator’s to award. Section 57 of the Act provides that “[s]ections 127 to 130 (prejudgment and postjudgment interest) of the Courts of Justice Act apply to an arbitration, with necessary modifications,” and Myers J. noted in Abittan v. Wilcox, 2020 ONSC 6836 (“Abittan”) at ¶ 22, that “[s]ection 57 of the statute authorizes awards to include prejudgment and postjudgment interest on the same basis as court orders.” An award that is silent on interest leaves the creditor to argue on the enforcement application that the court should add it, and the safer course is to ask the tribunal for interest in the arbitration itself, in the same way that a party who finds the award silent on costs may, under s. 54(3), request a further award dealing with costs within thirty (30) days of receiving the award.
The costs of the arbitration are part of the award, and they are enforced with it. Section 54(1) provides that “[a]n arbitral tribunal may award the costs of an arbitration,” and s. 54(2) defines those costs as “the parties’ legal expenses, the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration.” In Abittan, the money award the applicant sought to enforce was a costs award of about $46,000, and the respondent’s argument that a costs award was a remedy the court should not enforce under s. 50(7) failed, Myers J. holding at ¶ 21 that “a costs award is indeed a remedy which a court has jurisdiction to grant and would grant in a proceeding similar to this one.” The costs of the enforcement application are a separate matter, which the court awards in the ordinary way. The creditor in Zenith recovered $13,000 for its application at ¶¶ 84-85; the creditors in Kapahi Real Estate Inc. v. Elite Real Estate Club of Toronto Inc., 2026 ONSC 132 (“Kapahi”), had been awarded $27,000 for theirs, as Myers J. recorded at ¶ 26; and the Court of Appeal in BGOI at ¶ 7 fixed the costs of the quashed appeals on a higher scale, at $14,000, on the basis that “it is evident that 108 Media Corporation’s litigation strategy has been to delay the inevitable, knowing that they had no arguable grounds of appeal.”
The application under section 50
Section 50(1) provides that “[a] person who is entitled to enforcement of an award made in Ontario or elsewhere in Canada may make an application to the court to that effect,” and s. 50(2) provides that “[t]he application shall be made on notice to the person against whom enforcement is sought, in accordance with the rules of court, and shall be supported by the original award or a certified copy.” The proceeding is an application, since Rule 14.05(2) allows a proceeding to be commenced by application to the Superior Court of Justice “if a statute so authorizes,” and the “court” under the Act is that court. In Toronto, the application may be brought on the Commercial List, where Kapahi, Tianjin Dinghui and other applications discussed in this article were heard.
The record is short. The applicant files the award, or a certified copy of it, and ordinarily the arbitration agreement, with an affidavit that proves when the award was received, that no appeal or application to set aside was commenced within the thirty (30) days or that any such proceeding has been finally disposed of, what remains unpaid, and how the interest claimed has been computed. The respondent’s record is shorter still, since the only matters open to it are the four (4) circumstances in s. 50(3), and an application that raises nothing else is a short one.
The word in s. 50(3) is “shall.” The subsection provides that “[t]he court shall give a judgment enforcing an award made in Ontario unless” one of the four (4) circumstances exists, and the courts have read it as it is written. In BGOI, the Court of Appeal quashed an appeal from an enforcement judgment at ¶ 5 on the basis that s. 50(3) “deprives a judge of jurisdiction to refuse to enforce an arbitral award except in certain circumstances, none of which apply here,” and that, the appeal from the refusal of leave to appeal the award having been quashed, “the arbitral award must be enforced.” Myers J. in Abittan at ¶ 3 stated that, “as long as certain procedural conditions are fulfilled, like their being no appeal brought and the time for doing so has expired, the court is required to enforce arbitration awards.” B. Davies J. in Toronto Standard Condominium Corp. No. 1466 v. Weinstein, 2021 ONSC 1306 (“Weinstein”) at ¶ 39, having dismissed the unit owner’s set-aside application as out of time, held that “I am required to grant a judgment enforcing the arbitral award.” Koehnen J. in Jewish Foundation of Greater Toronto v. Joseph Lebovic Charitable Foundation, 2025 ONSC 5068 (“Lebovic”) at ¶¶ 138-139, having dismissed the applications to set aside and to appeal four (4) decisions of the arbitrator, held that the awards “must be recognized and enforced by this Court.” The Divisional Court in Ledsham v. Air Canada Pilots Assn., 2022 ONSC 1877 (“Ledsham”) at ¶ 24, described the scheme of the Act as follows. “The Arbitrator makes the decision. If no appeal or review is taken from that decision, the order ‘binds the parties’ and is then enforceable.” The Superior Court “is required to enforce the order unless the circumstances set out in” s. 50(3) exist, and “[t]he application judge may not inquire into the underlying merits of the Arbitrator’s decision.”
The application is not confined to awards for money. In Abittan, the applicant sought recognition of the arbitrator’s declaration that a letter of intent was binding, together with enforcement of the costs award, and obtained both. In DAC Group (Holdings) Ltd. v. Fuego Digital Media Inc., 2018 ONCA 43 (“DAC Group”), the award declared the ownership of software and granted injunctive relief, with costs of more than $1.5 million. In Canadian Soccer Assn. Inc. v. Assn. de Soccer de Brossard, 2023 ONSC 1367 (“Canada Soccer”), the award directed the governing body to grant a club a national youth club licence, and Bell J. enforced it by interim order because, as he found at ¶ 33, “[e]nforcement of the award is therefore necessary to allow ASB and its players the benefits of the award.” Section 50(7), discussed below, deals with the award whose remedy is one the court would not itself grant.
Where the losing party has commenced an appeal or an application to set aside, the two (2) proceedings are ordinarily heard together, and the enforcement judgment follows the dismissal of the challenge in the same reasons, as it did in Weinstein and in Lebovic. In Zenith, the creditor’s enforcement application and the debtor’s application for a stay of execution were heard together, and in Canada Soccer the losing party’s motion for a stay under s. 50(5)(b) and the winning party’s cross-motion to enforce under s. 50(5)(a) were heard together. The creditor who waits for the challenge to be decided before issuing its own application adds months to the process; the creditor who issues it at once has its judgment on the day the challenge fails.
The four circumstances in section 50(3)
Section 50(3) lists four (4) circumstances, and the list is closed. Paragraph (a) is that “the thirty-day period for commencing an appeal or an application to set the award aside has not yet elapsed.” Paragraph (b) is that “there is a pending appeal, application to set the award aside or application for a declaration of invalidity.” Paragraph (c) is that “the award has been set aside or the arbitration is the subject of a declaration of invalidity.” Paragraph (d) is that “the award is a family arbitration award.” Section 3 of the Act does not allow the parties to vary or exclude s. 50, so the list cannot be lengthened by agreement any more than it can be lengthened by the court.
The thirty (30) days in paragraph (a) are those of s. 47(1), which 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.” The period runs from receipt, and it cannot be extended. The Court of Appeal held in R & G Draper Farms (Keswick) Ltd. v. 1758691 Ontario Inc., 2014 ONCA 278 (“Draper Farms”) at ¶ 19, that “s. 50(3) is inconsistent with the notion of a residual discretion to extend the 30-day time period that governs an application to set aside or vary an arbitral award,” and Davies J. in Weinstein at ¶ 16 read Draper Farms as holding “that this Court has no inherent jurisdiction to extend the 30-day appeal period either.”
Section 47(2) provides that the thirty-day limit “does not apply if the appellant or applicant alleges corruption or fraud,” and a debtor sometimes reaches for that subsection when the thirty (30) days have passed. Weinstein shows how far it goes. Davies J. held at ¶ 22 that “[a]llegations of fraud or corruption are extremely serious” and that “[a]n arbitral award will not be set aside on the grounds of fraud or corruption without clear evidence,” and at ¶ 26 that “[i]t is not sufficient for Mr. Weinstein to simply allege there was corruption or fraud to avoid the 30-day limit,” quoting Calabrese v. Weekes, 2003 CanLII 3311 (ON SC) at ¶ 22, for the proposition that it would be “contrary to the purpose of the legislation to have a party avoid the thirty day period by making a mere allegation of corruption or fraud.” The unit owner’s set-aside application was dismissed and the enforcement judgment followed. His appeal was quashed in Toronto Standard Condominium Corp. No. 1466 v. Weinstein, 2021 ONCA 470, where the Court of Appeal held at ¶ 1 that s. 49 of the Act applied and that he needed leave to appeal, and leave was refused.
Paragraph (b) requires a pending proceeding, and paragraph (c) an award that has been set aside. A debtor’s stated intention to challenge the award is neither, and a debtor whose challenge has been dismissed is in the position of the respondents in Lebovic and Weinstein. Where a challenge is pending, the court is not bound to wait, since s. 50(5), discussed below, allows it to enforce the award in the meantime or to stay enforcement on conditions.
What is not a ground
The grounds that a losing party would like to raise on the enforcement application, and cannot, are the grounds of s. 46 and the merits. The ten (10) grounds for setting aside an award, which are the subject of our article on setting aside an arbitral award in Ontario, are available only on an application commenced within the thirty (30) days. A party who did not bring that application cannot bring its grounds to the enforcement hearing. The Divisional Court in Ledsham at ¶ 25 held that the appellant, having taken no appeal or review within thirty (30) days, “was not entitled to mount a collateral attack on the arbitral decisions during the enforcement application,” at ¶ 28 that “[t]he application judge had no jurisdiction to conduct a review or appeal from the Arbitrator’s decision,” and at ¶ 32 that “[t]he appellant may not mount an attack on the arbitration decision during enforcement proceedings. To do so is vexatious.” Myers J. in Abittan at ¶ 14 put the consequence of the choice to arbitrate as follows. “Peoples’ decisions to resolve their disputes by arbitration have consequences. One consequence is that, unless they agree otherwise in their arbitration agreements, they cannot come to the court when they feel aggrieved by the arbitrator’s decisions except in the very limited circumstances set out in the statute. The court has no ability to reconsider the findings of fact or law made by the arbitrator in this proceeding.” In Kapahi, a debtor’s attempt to reopen the question of his personal liability for costs by a motion under Rule 59.06 to vary the enforcement order failed for the same reason, Myers J. observing at ¶ 36 that “[t]he place for those arguments was on appeal rather than by efforts to re-argue the case under the guise of correcting a slip or due to new facts.”
Set-off and cross-claims are not a ground either. In Abittan at ¶ 23, Myers J. held that “the existence of possible claims by Ms. Wilcox against Ms. Abittan is not a basis to decline enforcement of the arbitral awards under the mandatory terms of s. 50 (3) of the statute.” In Zenith, the debtor had sued the creditor for breach of trust in a separate action and asked the court to hold the awards until that action was decided. Glustein J. held at ¶ 58 that the trust claim was a separate cause of action from the contract claim decided in the arbitration, and at ¶ 64 that a stay would allow a party to “improperly withhold funds, bring an arbitration, wait for the result, and then decide to litigate delays and deficiencies from the project in order to delay execution if the party is dissatisfied with the result of the arbitration.”
Section 50(7) is the one provision of s. 50 that looks at the content of the award, and it is confined to the form of the remedy. It provides that “[i]f the award gives a remedy that the court does not have jurisdiction to grant or would not grant in a proceeding based on similar circumstances, the court may, (a) grant a different remedy requested by the applicant; or (b) in the case of an award made in Ontario, remit it to the arbitral tribunal with the court’s opinion, in which case the arbitral tribunal may award a different remedy.” Myers J. held in Abittan at ¶ 15 that “[s]ubsection 50 (7) is a very narrowly drafted section,” that it does not provide “an additional appeal route (with no leave to appeal requirement as in s. 45),” and that “[n]either is it a safety valve through which the court can impose its own views on the justness or adequacy of the findings of facts and law made by the Arbitrator”; and at ¶ 17 that “it would be wholly inconsistent with limited role of the court intended by the statutory scheme to interpret s. 50 (7) to allow a court to conduct a review of the merits of an arbitral award in an enforcement application.” The subsection is for the award that orders something a court would not order. Professor Tamar Meshel’s treatise, Arbitration Law: Statutes, Cases and Commentary (LexisNexis), at § 10.09[4], gives as the example Thompson v. Thiessen, [2001] O.J. No. 2152 (S.C.J.), in which a consent award provided that future disputes between the parties would be decided by the same arbitrator, without counsel, in half a day, a remedy no court would grant.
Equitable objections to the creditor’s conduct have a narrow field. In Canada Soccer at ¶ 34, Bell J. rejected an “unclean hands” argument against interim enforcement under s. 50(5)(a) on the basis that only conduct immediately and necessarily related to the claim in question bars equitable relief.
The thirty days and the pending challenge
Section 50(5) provides that “[i]f the period for commencing an appeal, application to set the award aside or application for a declaration of invalidity has not yet elapsed, or if such a proceeding is pending, 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) adds that a court which stays enforcement of an Ontario award pending a proceeding “may give directions for the speedy disposition of the proceeding.” Mew J. explained the relationship between the subsections in Kingston Automation Technology Inc. v. Montebello Packaging, 2021 ONSC 2684 (“Kingston Automation”) at ¶ 13, rejecting the losing party’s submission that s. 50(3) created a presumption in favour of a stay and holding that, “[a]lthough the language of subsection (5) is inelegant, in my view it qualifies the application of subsection (3).” The pending challenge therefore takes the award out of the mandatory words of s. 50(3) and into the discretion of s. 50(5), under which the court may enforce at once, stay on conditions, or stay outright.
The discretion is exercised on the familiar test for a stay pending a proceeding. Both parties in Kingston Automation accepted, and Mew J. applied at ¶ 14, the three (3) questions of RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (“RJR-MacDonald”); namely, whether the challenge raises a serious question, whether the party seeking the stay would suffer irreparable harm without it, and where the balance of convenience lies. Bell J. applied the same test in Canada Soccer at ¶ 14, and noted at ¶ 15 that the three (3) criteria are not watertight compartments and that the court decides whether the interests of justice call for a stay. On the first question, a set-aside application that attacks the merits of the award under the guise of a ground in s. 46 raises no serious question, which was the finding in Canada Soccer at ¶ 25, since the court on the set-aside application will not look at the merits either. On the second and third, the losing party in Kingston Automation could show neither irreparable harm nor a balance of convenience in its favour, since the disputed amounts had been paid into trust, and the stay was refused at ¶ 33. In Canada Soccer, the club would have lost a season, its players and its sponsors, and the balance of convenience went strongly against the governing body at ¶ 29.
The stay, when granted, comes with conditions. In DAC Group, the application judge stayed enforcement of the award pending the set-aside application on condition that the debtor pay the creditor $25,000 on the fifteenth day of every month, and the Court of Appeal held at ¶¶ 2 and 8-10 that such an order is interlocutory, since the application remains before the court for a final determination under s. 50(3), so that an appeal from it lies to the Divisional Court. Interim enforcement under paragraph (a) is the mirror image. In Canada Soccer at ¶ 35, Bell J. ordered that “[a]n interim order will go under s. 50(5)(a) of the Arbitration Act, 1991, enforcing the arbitral award pending the determination of the application.” Professor Meshel observes at § 10.09[4] that Ontario courts have applied different tests under the two (2) paragraphs, the court under paragraph (a) weighing the bona fides of the challenge, the relative hardship to the parties and the conduct of the parties.
Two (2) further points follow from Kingston Automation. First, a motion to stay the arbitration itself, as opposed to the enforcement of the award, is for the arbitral tribunal, and Mew J. held at ¶ 34 that such an application should be made to the arbitrator under ss. 17(1) and 20(1) of the Act. Second, the leave requirement in s. 45(1) makes the serious question harder to show on a contractual award, since the Supreme Court held in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, that contractual interpretation is a question of mixed fact and law, a point Mew J. noted at ¶ 19.
Enforcement as a judgment and stays of execution
Once judgment is given, the award is enforced as a judgment, and the question becomes whether the debtor can obtain a stay of execution. The answer in Zenith is that the court has the power and almost never uses it. Glustein J. held at ¶ 39 that “[t]he requirement under s. 50(5) that the court enforce an arbitral award does not preclude a stay of execution under s. 106 of the CJA,” since “[s]ection 50(8) renders a final arbitral award the same as a final judgment, permitting a stay under the analysis in Carlisle.” Section 106 of the CJA provides that “[a] court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.” The analysis in 1247902 Ontario Inc. v. Carlisle Power Systems Ltd., [2003] O.J. No. 6300 (Div. Ct.), aff’d [2005] O.J. No. 118 (C.A.) (“Carlisle”), which Glustein J. set out at ¶¶ 46-48, allows a stay of a final judgment only “in very rare circumstances,” and the test, which he quoted at ¶ 47 from Gruner v. McCormack (2000), 45 C.P.C. (4th) 273 (S.C.J.), requires the debtor to show that “a continuance of the action would work an injustice because it would be oppressive or vexatious or an abuse of the process of the Court and that the stay would not cause an injustice to the plaintiff.” Cunningham A.C.J. had said in Carlisle at ¶ 7, as quoted in Zenith at ¶ 46, that “[i]t has always been fundamental that a judgment is final and that there is no jurisdiction in the court to prevent or limit the exercise of a judgment creditor’s right to enforce, in the absence of such power being expressly conferred.” The debtor in Zenith failed on that test and on the RJR-MacDonald test alike (¶ 52), and Glustein J. added at ¶ 64 that a stay “would ‘frustrate commercial enterprise and…would encourage a whole new area of litigation.’”
The stay provisions of the Rules do not apply to an award. Rule 20.08, which allows the court to stay the enforcement of a summary judgment pending the determination of another issue in the action or of a counterclaim, crossclaim or third party claim, was held inapplicable in Zenith at ¶¶ 75-76, because an award is treated as a final judgment “determined after a full hearing on the merits,” and Professor Meshel’s summary at § 10.09[4] is that an arbitration award is not subject to the stay provisions of the Rules. An appeal from the enforcement judgment itself, where one lies, is different, because Rule 63.01(1) provides that the delivery of a notice of appeal stays any provision of the order for the payment of money until the appeal is disposed of, and the creditor’s answer is a motion under Rule 63.01(5) to lift the stay or, where the appeal has no merit, a motion to quash it, which is what the creditor brought in BGOI.
Which court hears an appeal from the enforcement judgment depends on what was decided. In Weinstein, the judgment was given on the set-aside application and the enforcement application together, and the Court of Appeal held at ¶ 1 that “s. 49 of the Arbitration Act, 1991 applies” and that the appellant needed leave, which it refused at ¶ 4. In BGOI, the appeal from the enforcement judgment was quashed at ¶ 5 because the appeal from the refusal of leave to appeal the award had been quashed and nothing remained to be argued. In DAC Group, the conditional stay was interlocutory and the appeal belonged in the Divisional Court. In InFrontier, Popack v. Lipszyc, 2018 ONCA 635 (“Popack”), and All Communications Network of Canada, Co. v. Planet Energy Corp., 2023 ONCA 319 (“ACN”), all decided under the ICAA, the Court of Appeal heard the appeals from the recognition judgments on their merits, and Brown J.A. held in Popack at ¶¶ 31-34 that the interpretation of the ICAA and the Model Law is a question of law reviewed for correctness, while the application of the statute to the facts and the interpretation of the arbitration agreement attract deference.
The ten-year limit
Section 52(3) of the Act provides that “[a]n application to enforce an award shall not be commenced after the later of December 31, 2018 and the tenth anniversary of, (a) the day the award was received; or (b) if an application to set aside the award was commenced, the date on which the application was finally determined.” The subsection was added by the legislation that enacted the ICAA in 2017, and s. 10 of the ICAA is its counterpart for international and foreign awards, under which no application for recognition or enforcement “shall be made after the later of December 31, 2018 and the tenth anniversary of, (a) the date on which the award was made; or (b) if proceedings at the place of arbitration to set aside the award were commenced, the date on which the proceedings concluded.” The two (2) periods are Ontario’s answer to Yugraneft, in which the Supreme Court held at ¶¶ 15-23 that the limitation period for enforcing a foreign award is a matter for the local law of the enforcing jurisdiction, as a “rule of procedure” within art. III of the Convention, and that Alberta’s two-year period applied, so that an application to enforce a Russian award of US$952,614.43, made in September 2002 and brought in January 2006, was out of time. The Court held at ¶¶ 54-57 that the obligation under the award became exigible, for limitation purposes, when the three (3) months for a set-aside application at the seat expired or, if such an application was taken, when it was decided, and that trigger is the one the Ontario provisions adopt.
The ten (10) years are long enough that the limit will seldom decide a case, but the trigger matters. Under s. 52(3) the clock runs from receipt of the award, under s. 10 of the ICAA from the date the award was made, and under both from the final determination of a set-aside application where one was brought. Neither provision turns on discoverability, which was the argument that failed in Yugraneft at ¶¶ 58-62 because the debtor was identified in the contract as an Alberta corporation with its head office there. The practical point is a different one. Interest runs throughout, but assets move, and the creditor who waits years to enforce may find nothing left to execute against.
Awards made elsewhere in Canada
Section 50(4) applies to an award made in another province or territory. It provides that the court “shall give a judgment enforcing an award made elsewhere in Canada unless” one of five (5) circumstances exists; namely, that the period for an appeal or set-aside application “provided by the laws of the province or territory where the award was made has not yet elapsed,” that such a proceeding is pending there, that the award has been set aside there or the arbitration has been declared invalid there, that “the subject-matter of the award is not capable of being the subject of arbitration under Ontario law,” or that the award is a family arbitration award. The first three (3) are the Ontario grounds adapted to the law of the seat, which decides how long the losing party had to challenge the award and whether it did, and the fourth is the one ground on which the Ontario court looks at the subject-matter. Section 50(5) applies to these awards as it does to Ontario awards, so the court may enforce or stay while a challenge at the seat is pending, and s. 52(3) sets the same ten-year limit.
The ICAA draws the line between this regime and the international one. Section 2(3) of the ICAA provides that an award made in a jurisdiction within Canada that is considered international in that jurisdiction is not a domestic award for the purposes of art. I(1) of the Convention, and that an award made within Canada that is not considered international where it was made is a domestic award. An award made in Calgary in a domestic arbitration between two (2) Canadian companies is enforced in Ontario under s. 50(4); an award made in Vancouver in an international arbitration is enforced under the ICAA. Section 2(1) of the Act makes the two (2) statutes mutually exclusive, as the Court of Appeal noted in Draper Farms at ¶ 14, and the first question on any application is which of them applies.
International and foreign awards
The ICAA gives two (2) instruments the force of law in Ontario. Section 2(1) provides that the Convention, set out in Schedule 1 to the ICAA, “has force of law in Ontario in relation to arbitral awards or arbitration agreements in respect of differences arising out of commercial legal relationships.” Section 5(1) provides that the Model Law, set out in Schedule 2, “has force of law in Ontario,” and s. 5(3) that it “applies to international commercial arbitration agreements and awards made in international commercial arbitrations.” Section 3 provides that an application for recognition and enforcement under the Convention “shall be made to the Superior Court of Justice,” and s. 6(2) that the “court” in the Model Law means the same court. Zarnett J.A. described the division of labour in InFrontier at ¶ 1, stating that “[i]n Ontario, recognition and enforcement of foreign arbitration awards is governed by the International Commercial Arbitration Act, 2017,” that one way in which the ICAA does so “is by giving force of law to the Convention,” and that the Convention’s provisions “apply to the recognition and enforcement of an arbitral award made in another ‘State’ that has accepted the Convention,” with the Model Law’s recognition provisions covering the international awards the Convention does not govern.
The two (2) instruments overlap. Vermette J. explained in Costco Wholesale Corp. v. TicketOps Corp., 2023 ONSC 573 (“Costco”) at ¶ 40, that both applied to awards made in Seattle against an Ontario company, the Convention because the awards “were made in the territory of a State (U.S.A.) other than the State where the recognition and enforcement of the Awards are sought (Canada),” and the Model Law because the parties had their places of business in different countries when they made the arbitration agreement, which makes the arbitration “international” under art. 1(3)(a). Article 1(2) of the Model Law provides that arts. 35 and 36 apply even where the place of arbitration is outside Ontario, and art. 35(1) provides that an arbitral award, “irrespective of the country in which it was made, shall be recognized as binding and, upon application in writing to the competent court, shall be enforced subject to the provisions of this article and of article 36.” An international award made in Ontario is enforced under the same articles. The ICDR award of $29,259,787 made in Toronto in ACN, and the award of the New York rabbinical court that had sat in Toronto in Popack, which the parties agreed was subject to the ICAA, were both enforced under arts. 35 and 36.
Article IV of the Convention and art. 35(2) of the Model Law set out what the applicant files; namely, the duly authenticated original award or a duly certified copy, the original arbitration agreement or a certified copy, and, where the award is not in English or French, a certified translation. Chiappetta J. held in Depo Traffic Facilities (Kunshan) Co. v. Vikeda International Logistics and Automotive Supply Ltd., 2015 ONSC 999 (“Depo Traffic”) at ¶ 31, that “[w]here an applicant has complied with article 35(2), the Court shall recognize and enforce an award” unless the respondent proves a ground under art. 36(1)(a), and Vermette J. held in Costco at ¶ 69 that, Costco having supplied certified copies of the awards, “the recognition and enforcement of the Awards may be refused only if one of the grounds set out in article 36 is established.” No prior confirmation of the award by the courts of the seat is required. The Court of Appeal held in Dalimpex Ltd. v. Janicki, 2003 CanLII 34234 (ON CA) (“Dalimpex”) at ¶¶ 52-53, that a Polish award did not need to be confirmed by a Polish court to be binding, and Brown J.A. noted in Popack at ¶ 42 that the Convention abandoned the requirement of “double exequatur.” In Costco, the awards had also been confirmed by the United States District Court, and Vermette J. analyzed the application at ¶¶ 65-68 as one to enforce the awards themselves under the Model Law.
The proceeding is an application, and it stays one. In Costco at ¶¶ 103-108, the respondent moved under Rule 38.10 to convert the application into an action and to consolidate it with three (3) Ontario actions. Vermette J. refused, holding at ¶ 105 that “disputed facts that relate to the merits of the action upon which the foreign judgment/arbitral award is based are not a basis upon which to convert an application to enforce into an action,” at ¶ 106 that “the grounds on which the enforcement of an international arbitral award can be refused are limited and narrow” and “[a] trial is not required,” and at ¶ 108 that conversion and consolidation “would be contrary to the objectives of the ICAA, the Convention and the Model Law.” The Court of Appeal held in ACN at ¶ 49 that the application judge was entitled to rely on the arbitrator’s findings and that no hearing de novo was required, and at ¶ 59 that the appellant “is asking this Court to consider the evidentiary record anew and substitute new findings for those made by the Arbitrator. This is not the proper role of the Court on this application.”
Article V(1) of the Convention provides that recognition and enforcement “may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof” of one of five (5) matters, and art. V(2) adds two (2) matters the court may find of its own motion. Article 36(1) of the Model Law is to the same effect, and Brown J.A. observed in Popack at ¶¶ 37-39 that the art. 36(1) grounds mirror the grounds for setting aside in art. 34(2), with the addition of the award that is “not yet binding.” The five (5) grounds the resisting party must prove are, first, that a party to the arbitration agreement was under an incapacity or that the agreement is not valid under the law the parties chose or, failing a choice, the law of the country where the award was made; second, that the resisting party “was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case”; third, that the award deals with a dispute not contemplated by or not falling within the submission to arbitration, in which case the part that does fall within it may still be enforced; fourth, that “the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place”; and fifth, that the award “has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made.” The two (2) grounds the court may find for itself are that the subject-matter of the dispute is not capable of settlement by arbitration under the law of Ontario, and that recognition or enforcement “would be contrary to the public policy of this State,” which s. 6(1) of the ICAA reads as Ontario.
Three (3) principles govern the application of the grounds. The first is narrow construction. Brown J.A. held in Popack at ¶ 35 that “[i]nternational and provincial instruments have established, in Ontario, a strong ‘pro-enforcement’ legal regime for the recognition and enforcement of international commercial arbitration awards,” and at ¶ 40 that “[t]he general rule of interpreting the recognition and enforcement provisions of the Convention and Model Law is that ‘the grounds for refusal of enforcement are to be construed narrowly,’” quoting Lax J. in Corporacion Transnacional de Inversiones, S.A. de C.V. v. STET International, S.p.A. (1999), 45 O.R. (3d) 183 (S.C.J.) (“STET”) at ¶ 26, aff’d (2000), 49 O.R. (3d) 414 (C.A.). Vermette J. repeated the rule in Costco at ¶ 45, and the Supreme Court said in Yugraneft at ¶ 9 that the Convention “requires each Contracting State to recognize and enforce arbitral awards made in the territory of another State, and that recognition and enforcement can only be refused on the limited grounds set out in art. V.” The second is onus. The party resisting enforcement must prove the ground, as Chiappetta J. held in Depo Traffic at ¶ 32 and C. Chang J. held in China Yantai Friction Co. v. Novalex Inc., 2024 ONSC 608 (“China Yantai”) at ¶ 37, and, as the Court of Appeal put it in InFrontier at ¶ 2, recognition and enforcement “may be refused only if the party resisting it establishes one or more specified grounds.” The third is discretion. Even where a ground is proved, the court “may” refuse, and it may instead enforce. Chiappetta J. held in Depo Traffic at ¶ 32, citing Schreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608 (Gen. Div.) (“Schreter”), that the discretion “does not give rise to an obligation by the Court to refuse to enforce or put aside the arbitral award,” and Chang J. held in China Yantai at ¶¶ 46-48 that, even had procedural unfairness been shown, the court would not have exercised its discretion to refuse recognition.
The ground argued most often is the second, and the cases show both its reach and its limit. The test, taken from the set-aside cases, is a high one. Thorburn J.A. held in ACN at ¶ 42 that “[t]he onus on a party seeking to set aside an arbitral award on the basis of a failure of due process, is high,” and that “[j]udicial intervention for alleged violations of the due process requirements of the Model Law will be warranted only when the Tribunal’s conduct is so serious that it cannot be condoned under the law of the enforcing State,” quoting Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939 (“Consolidated Contractors”) at ¶ 65, which in turn quoted STET at ¶ 34. Vermette J. summarized in Costco at ¶ 47, from Nelson v. The Government of the United Mexican States, 2022 ONSC 1193 at ¶ 34, the three (3) situations in which a party has been unable to present its case; namely, where the award rests on a theory of liability the parties were not given an opportunity to address, where a party was not given an opportunity to respond to arguments, and where the tribunal ignored or failed to take into account the evidence or submissions. Complaints about the tribunal’s rulings on document production, cross-examination and closing submissions failed in ACN at ¶¶ 48-49 and 54. A complaint that the tribunal had refused a request to retain appraisers, made after the evidence was closed, failed in China Yantai at ¶ 42, where the institution’s rules gave the tribunal authority over the admission of evidence. A complaint that the tribunal had not addressed an argument about double recovery failed in Depo Traffic at ¶ 39, Chiappetta J. holding that “[t]o accept the Respondent’s submission would effectively expand the restrictive list of reasons to refuse enforcement.”
Tianjin Dinghui is the case on the other side of the line. The applicant held an award of about $120 million from the Shenzhen Court of International Arbitration against two (2) guarantors who had told it, by message in March 2020, that they were staying in Canada during the pandemic, and it had served the arbitration materials by courier at a corporate address in China, where a company controller signed for them, and at a residence that had been sold. Kimmel J. held at ¶ 57 that “proper notice” under the Model Law “has been held to mean notice that is reasonably calculated to inform the party of the arbitral proceedings and give them an opportunity to respond,” which “does not require actual notice,” and at ¶ 77 that “[i]f TDH wanted to rely upon the contractual notice provisions it should have complied with them,” since deemed service under the institution’s rules, “although sufficient for purposes of the SIPC’s determination in the Set-Aside Proceedings,” was “not proper service under the Model Law in the circumstances of this case.” For an award of that size against two (2) Canadians known to be in Canada, she held at ¶ 79, “strict compliance with the contractual notice requirements is what would have to be demonstrated for ‘proper notice’ to be grounded in the contractual notice provisions.” The respondents met their onus (¶ 81), the dismissal of their set-aside applications by the court of the seat raised no issue estoppel because that court had decided deemed service under the institution’s rules and had not decided whether the notice was reasonably calculated to reach them (¶¶ 84-92), and the application was dismissed at ¶¶ 117-118, with costs of $160,000 to the respondents (¶¶ 123-125). Kimmel J. added at ¶ 88 that “[u]nquestionably, the court should defer to decisions made by the court in the seat of the arbitration on questions decided by that court,” so the result turned on what the Shenzhen court had decided.
The fourth ground, that the procedure departed from the parties’ agreement, was the ground in InFrontier. The loan agreement provided for arbitration under the rules of the DIFC-LCIA Arbitration Centre, which a Dubai decree abolished in September 2021, transferring its functions to the Dubai International Arbitration Centre, and the arbitration was conducted under the DIAC Rules over the guarantor’s objection. The Court of Appeal held at ¶¶ 33-35 that art. V(1)(d) gives effect to the parties’ autonomy over procedure and that the court must first interpret the agreement to determine what procedure the parties agreed to, at ¶ 37 that the parties had agreed to “such amended version” of the rules as was adopted before the arbitration commenced, at ¶ 43 that the application judge made no error in looking at the decree to determine whether an amendment had been effected, and at ¶ 49 that the rules agreed to and the rules the arbitrator applied were the same, so that the ground was not made out. The guarantor’s further arguments, that he had been unable to present his case and that enforcement would offend public policy, were derivative and failed with it at ¶ 50, and the appeal was dismissed with costs of $30,000 at ¶¶ 52-53. The decision is the Court of Appeal’s reminder that institutional rules are the parties’ own, Zarnett J.A. citing at ¶ 39 the statement in Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 (“Dell”) at ¶ 52, that “the rules become those of the parties, regardless of where they are taken from.”
The fifth ground, that the award “has not yet become binding,” was the ground in Popack, and the Court of Appeal’s answer defines the word. The application judge had refused recognition of a $400,000 award because the losing party intended to raise further issues before the tribunal and the tribunal had purported to “stay” its own award. Brown J.A. held at ¶¶ 49-51 that Yugraneft governs, so that an award is not binding under art. V(1)(e) of the Convention or art. 36(1)(a)(v) of the Model Law if it is open to being set aside under art. 34, either because the three (3) months for a set-aside application have not expired or because set-aside proceedings have not come to an end, and that, in the Supreme Court’s words at ¶ 57 of Yugraneft, “the obligation to pay the award becomes exigible on the date the appeal period expires or, if an appeal is taken, the date of the appeal decision.” The award in Popack became binding when the set-aside proceedings were finally disposed of (¶ 53); the tribunal, having made a final award, was functus officio (¶¶ 75-76); its purported stay was not a suspension “by a court of the country in which, or under the law of which, that award was made” (¶ 86); and, as Brown J.A. held at ¶ 84, “[t]he final determination of any issue that may be raised under art. 36, including whether the award is ‘binding’, rests with the court, not the arbitral tribunal,” citing Dalimpex at ¶ 47. The Court of Appeal substituted an order recognizing and enforcing the award, with costs of $25,000 on the appeal and $15,000 below (¶¶ 88-89).
Where set-aside proceedings are pending at the seat, art. VI of the Convention and art. 36(2) of the Model Law allow the Ontario court, “if it considers it proper,” to adjourn its decision and to order the resisting party to give security. In Dalimpex at ¶¶ 55 and 61, the Court of Appeal held that the only orders open under arts. 35 and 36 are to allow, adjourn or dismiss the application, that a “provisional” judgment recognizing the award was none of them, and that the application should have been adjourned under art. 36(2) pending the Polish appeal. A decision at the seat is not conclusive either way. An award set aside at the seat “may” be refused recognition, which leaves the court a discretion, and Tianjin Dinghui shows that an award upheld at the seat may still be refused where the ground was not decided there.
The public policy ground is argued often and succeeds almost never. The test is Lax J.’s in STET at ¶ 30, which the Court of Appeal adopted in InFrontier at ¶ 51; namely, that “to succeed on [the public policy ground] the award must fundamentally offend the most basic and explicit principles of justice and fairness in Ontario, or evidence intolerable ignorance or corruption on the part of the Arbitral Tribunal,” with a reference to Clayton v. Canada (Attorney General), 2024 ONCA 581 at ¶¶ 35-37. Feldman J.’s formulation in Schreter, quoted in ACN at ¶ 72, is that the party must show that enforcement “offends our local principles of justice and fairness in a fundamental way.” Chiappetta J. held in Depo Traffic at ¶ 45 that “[p]ublic policy is truly an exceptional defence,” and adopted at ¶ 47 Professor McLeod’s statement that the prohibition “ought to be invoked only if the judgment involves an act that is illegal in the forum or if the action involves acts repugnant to the orderly functioning of the social or commercial life of the forum,” the example being “the enforcement of a gambling debt which would be illegal in Ontario.” The argument failed in Depo Traffic at ¶ 48. It failed in ACN, where the Court of Appeal held at ¶ 73 that the arbitrator had considered and applied the Ontario consumer protection statute relied on. It failed in Costco, where Vermette J. held at ¶ 94 that “the public policy defence is not meant to bar enforcement of a foreign judgment or arbitral award for the sole reason that the claim would not yield comparable damages in Canada,” noting that foreign judgments for treble and punitive damages have been enforced in Ontario, and at ¶ 100 that “the defence of public policy does not extend to perceived injustices that do not offend our sense of morality.” It failed in China Yantai, where Chang J. held at ¶ 61 that the parties had agreed to arbitrate under the CIETAC Rules and Chinese law, that “they did exactly that and there is simply nothing in what occurred in the arbitration that offends our principles of justice and fairness in a fundamental way.” It failed in InFrontier, and Kimmel J. rejected it in Tianjin Dinghui at ¶¶ 121-122, holding that no blanket public policy exists against enforcing awards made in China.
An award in a foreign currency is converted under s. 121 of the CJA, which requires the order to provide for payment of “an amount in Canadian currency sufficient to purchase the amount of the obligation in the foreign currency at a bank in Ontario listed in Schedule I to the Bank Act (Canada) at the close of business on the first day on which the bank quotes a Canadian dollar rate for purchase of the foreign currency before the day payment of the obligation is received by the creditor,” unless the court finds that conversion on that day would be inequitable or the obligation itself provides for the manner of conversion. Vermette J. made an order in those terms in Costco at ¶ 111, with interest in accordance with the awards at ¶ 112. An award in United States dollars is therefore paid in Canadian dollars at the rate of the day before payment, and the party who wants another day must show that conversion on that day would be inequitable. The judgment that recognizes and enforces a foreign award is a judgment of the Superior Court for the payment of money; in InFrontier, the application judge recognized the award as binding and enforceable in Ontario and ordered the guarantor to pay the amounts owing (¶ 3), and such a judgment is executed under Rule 60 like any other.
Costs on these applications follow the event, and the figures are worth knowing. The successful applicants recovered $40,000 in Depo Traffic (¶ 58), $50,000 by agreement in China Yantai (¶ 63), $25,000 on the appeal in ACN (¶ 75), $25,000 on the appeal and $15,000 below in Popack (¶ 89), and $30,000 on the appeal in InFrontier (¶ 53). The successful respondents in Tianjin Dinghui recovered $160,000 on the application, less the $65,000 awarded against them on their failed fresh-evidence motion (¶¶ 123-125).
Collection after judgment
The judgment is the beginning of collection. Rule 60.02(1) provides that “an order for the payment or recovery of money may be enforced by, (a) a writ of seizure and sale (Form 60A) under rule 60.07; (b) garnishment under rule 60.08; (c) a writ of sequestration (Form 60B) under rule 60.09; and (d) the appointment of a receiver,” and Rule 60.18(2) allows the creditor to examine the debtor on “the reason for nonpayment or nonperformance of the order,” “the debtor’s income and property,” “the debts owed to and by the debtor,” “the disposal the debtor has made of any property either before or after the making of the order,” and “the debtor’s present, past and future means to satisfy the order.” The sequel to Canada Soccer, Canadian Soccer Assn. Inc. v. Assn. de Soccer de Brossard, 2023 ONSC 4317 at ¶ 2, records that, when the governing body failed to pay the costs of the arbitration, the club commenced garnishment proceedings and served the notice on the debtor and its bank. In Kapahi at ¶ 35, the creditors delivered a notice of examination in aid of execution to enforce the costs liability, and Myers J. upheld at ¶ 40 the finding that the individual respondents were jointly and severally liable for the costs the tribunal had awarded against “the Respondents.”
The creditor who fears that assets will move before the award is paid is not confined to the remedies that follow judgment. Section 8(1) of the Act provides that “[t]he court’s powers with respect to the detention, preservation and inspection of property, interim injunctions and the appointment of receivers are the same in arbitrations as in court actions,” so a Mareva injunction or the appointment of a receiver is available in aid of an arbitration on the same footing as in an action, and the examination of the debtor after judgment is the ordinary way to find what the writ should attach. Awards against the Crown are enforceable too. Section 51 of the Act provides that “[t]his Act binds the Crown,” and s. 12(2) of the ICAA provides that “[a]n award recognized pursuant to this Act is enforceable against the Crown in the same manner and to the same extent as a judgment is enforceable against the Crown.”
An award made in Ontario travels. More than 170 states are parties to the Convention, and art. III obliges each of them to “recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon,” without imposing “substantially more onerous conditions or higher fees or charges” than apply to its own domestic awards. The creditor of an Ontario award against a debtor with assets in New York, London or Singapore applies there with the authenticated award and the arbitration agreement under art. IV, and the abandonment of “double exequatur” noted in Popack at ¶ 42 means that no Ontario judgment is needed first. The reverse is the reason foreign creditors come to Ontario. The respondents in Depo Traffic, Costco, China Yantai, Tianjin Dinghui and InFrontier were Ontario companies or Ontario residents, and Chiappetta J. recorded at ¶ 2 of Depo Traffic that recognition was sought in Ontario “because Vikeda is an Ontario company.”
The arbitration clause
Most of what decides an enforcement application was decided when the clause was drafted. Five (5) points follow from the cases.
First, the agreement should be in writing and signed, whatever the domestic Act allows. Section 5(3) of the Act provides that “[a]n arbitration agreement need not be in writing,” but art. 7(2) of the Model Law provides that “[t]he arbitration agreement shall be in writing,” art. IV of the Convention requires the applicant to supply “the original agreement” or a certified copy, and the creditor who must enforce abroad, or against a guarantor who says he never agreed to arbitrate, needs the signed clause. The first ground in art. 36(1)(a) is that the agreement is not valid, and the Court of Appeal held in Dalimpex at ¶ 60 that, under the third ground, the application judge must make his or her own determination whether the dispute fell within the scope of the clause. A guarantee should contain the arbitration clause or incorporate it in terms, and name the guarantor as a party to it, since the awards in InFrontier and Tianjin Dinghui were awards against guarantors.
Second, the clause should name the institution, the rules and the version, and say what happens if the institution changes. The agreement in InFrontier survived the abolition of the institution it named because it referred to “such amended version” of the rules as was in force when the arbitration commenced, and the court read the decree that transferred the institution’s functions as effecting that amendment. A clause that names rules the institution no longer publishes invites the argument that failed there.
Third, the notice provisions should be ones the claimant can meet, and the claimant should meet them. Tianjin Dinghui turned on a claimant that relied on contractual notice provisions it had not complied with, against respondents who had told it where they were, and Kimmel J.’s holding at ¶ 79 that “strict compliance with the contractual notice requirements is what would have to be demonstrated” is the standard a claimant should assume. A clause that requires notice to a physical address only, with no provision for email and no obligation on each party to keep its address current, is a clause that will be argued about on the enforcement application.
Fourth, the clause should say in what currency the award is to be paid, at what rate interest runs before and after the award, and that the tribunal may award the costs of the arbitration. Section 121 of the CJA supplies a conversion rule where the parties have not, s. 57 of the Act supplies the CJA interest rates where the parties have not, and s. 54(4) provides that, in the absence of an award dealing with costs, each party bears its own legal expenses and an equal share of the tribunal’s fees, which is seldom what the winning party intended.
Fifth, the clause should provide that the award is final and binding and that it may be enforced in any court of competent jurisdiction, which was the language of the agreement in ACN at ¶ 9. The words “final and binding” remove the appeal under s. 45, as our article on appealing an arbitral award in Ontario explains, and so remove the first two (2) circumstances in s. 50(3) as to appeals, leaving the set-aside application under s. 46 as the only challenge that can delay enforcement. What the clause cannot do is give the court a wider review on enforcement, or a narrower one, since s. 3 of the Act makes ss. 46 and 50 provisions the parties cannot vary or exclude.
Practical considerations
For the creditor, the application should be ready on the thirty-first day. The award is received, the thirty (30) days of s. 47(1) run, and on their expiry without an appeal or a set-aside application the award is enforceable under s. 50(3) without discretion. The application record needs the original award or a certified copy, the arbitration agreement, and an affidavit proving receipt, the absence of any challenge, the amount outstanding and the interest computation; for a foreign award it needs the authenticated award, the agreement and any certified translation under art. IV of the Convention, and the draft judgment should include the currency conversion under s. 121 of the CJA. Where the debtor has commenced a challenge, the creditor should issue its application at once and ask that the two (2) be heard together, as they were in Weinstein and Lebovic, and should consider interim enforcement under s. 50(5)(a), as in Canada Soccer, where the award is one whose value lies in prompt performance. Where the debtor’s assets are at risk, the creditor should consider interim relief under s. 8(1) of the Act during the arbitration and an examination in aid of execution under Rule 60.18 the day the judgment issues. The ten-year limit in s. 52(3) of the Act and s. 10 of the ICAA is not a reason to wait, and assets that could be found in the first year are often gone by the third.
For the debtor, the enforcement application is the wrong place to argue the award. The grounds of s. 46 and the merits are closed on that application, as Ledsham, Abittan and Kapahi hold, and an appeal from the enforcement judgment that raises nothing else risks being quashed with costs on a higher scale, as in BGOI. A debtor who has a ground must bring its appeal or set-aside application within the thirty (30) days, which the court cannot extend, and must then move under s. 50(5)(b) with evidence that meets the RJR-MacDonald test, since a bare application does not stay enforcement. The debtor who moves should propose terms, because the stay in DAC Group was granted on condition of monthly payments and the court in Canada Soccer refused one where the challenge attacked the merits. After judgment, the stay under s. 106 of the CJA is for “very rare circumstances,” as Zenith holds, and a separate action or a set-off is not one of them. A foreign award debtor has more to argue, since the grounds in art. 36 are open on the application itself, but the onus is the debtor’s, the court retains a discretion to enforce even where a ground is proved, and the public policy ground has been rejected in every recent Ontario decision discussed here. The one ground on which an Ontario respondent has recently succeeded is want of proper notice, in Tianjin Dinghui, and it succeeded on evidence of what the claimant knew and did.
Costs follow the event on both sides of the application. The creditor who succeeds recovers partial indemnity costs in the ordinary course, which in the cases discussed here ranged from $13,000 in Zenith to $50,000 in China Yantai; the debtor who resists without a ground pays them, and pays more where the resistance is found to have been brought to delay, as in BGOI; and the respondent who succeeds in resisting a foreign award recovers its own, which in Tianjin Dinghui came to $160,000.
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 to enforce an award under s. 50 of the Act, applications to recognize and enforce international and foreign awards under the ICAA, motions for interim enforcement or a stay under s. 50(5), and the collection steps that follow judgment. We also act for award debtors who have a ground to resist, in the thirty (30) days that follow the award and on the enforcement application. Our arbitration practice and our commercial litigation practice are described on the pages linked here; our civil fraud practice covers the tracing, Mareva and receivership remedies that an award creditor may need; our appellate practice covers the appeals and motions for leave discussed above; and our pages for American clients and European clients describe our work for parties outside Canada who hold awards against Ontario debtors. Our articles on setting aside an arbitral award in Ontario, on appealing an arbitral award in Ontario, on arbitrating a shareholder dispute in Ontario and on evidence in a commercial arbitration in Ontario deal with the two (2) routes of challenge, the arbitration of shareholder disputes, and the law of evidence before the tribunal.
This article is general information about the law of Ontario as of October 2026 and is not legal advice. Whether an award can be enforced, and on what terms, depends on the arbitration agreement, the award, the seat and the record, and the authorities cited should be read in full before they are relied on.
This article is part of the firm’s work in arbitration and commercial litigation.