Setting Aside an Arbitral Award in Ontario

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),” and s. 50(3) requires the court to give judgment enforcing an award made in Ontario once the thirty (30) days for an appeal or an application to set it aside have passed without either being commenced. The losing party therefore has two (2) routes and a short time in which to take either of them. The first is an appeal under s. 45, which exists only to the extent the arbitration agreement allows it or, where the agreement is silent, on a question of law with leave. The second is an application to set the award aside under s. 46, which the parties cannot contract out of and which is available against every award, but only on the ten (10) grounds the section lists. Both must be commenced within thirty (30) days after the applicant receives the award (s. 47(1)), and the court has no power to extend that period.

The Court of Appeal has said in a line of decisions since 2019 that the second route is not a substitute for the first. In Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254 (“Alectra”) at ¶ 27, Huscroft J.A. wrote that “Section 46(1)3 is not an alternate appeal route and must not be treated as such.” In Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, 2022 ONCA 769 (“Mensula”) at ¶ 5, Zarnett J.A. wrote that s. 46(1)3 “provides a narrow basis upon which a court may interfere with an arbitration award. It does not create a right of appeal, nor contemplate a review of the correctness or reasonableness of the arbitrator’s decision.” In Tall Ships Development Inc. v. Brockville (City), 2022 ONCA 861 (“Tall Ships”) at ¶ 95, Harvison Young J.A. wrote that “s. 46 of the Arbitration Act cannot be used as a broad appeal route to bootstrap substantive arguments attacking an arbitrator’s findings which the parties had agreed would be immune from appeal.” In Campbell v. Toronto Standard Condominium Corporation No. 2600, 2024 ONCA 218 (“Campbell”) at ¶ 47, the court described those three (3) decisions as a “trilogy” that “has made clear that the grounds for setting aside an arbitral award listed in s. 46 are narrow and that s. 46 is not an alternate appeal route.” A party who reads the award as wrong and reaches for s. 46 must therefore begin with a different question; namely, whether something went wrong with the arbitrator’s authority or the fairness of the process, as opposed to the result.

This article sets out the law of setting aside under the Act as it applies to a commercial arbitration seated in Ontario. It covers the grounds in s. 46, the distinction between an appeal and an application to set aside, the jurisdiction ground, the fairness grounds, bias and fraud, the thirty-day limit, the application and its remedies, enforcement while the application is pending, and the parallel regime for international awards under the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (the “ICAA”). It does not deal with family arbitration awards, which have their own rules under paragraph 10 of s. 46(1) and the Family Law Act, R.S.O. 1990, c. F.3.

The grounds in section 46

Section 46(1) provides that “[o]n a party’s application, the court may set aside an award on any of the following grounds,” and then lists ten (10) of them; namely, (1) that “[a] party entered into the arbitration agreement while under a legal incapacity”; (2) that “[t]he arbitration agreement is invalid or has ceased to exist”; (3) 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”; (4) that “[t]he composition of the arbitral tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with this Act”; (5) that “[t]he subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law”; (6) that “[t]he applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party’s case, or was not given proper notice of the arbitration or of the appointment of an arbitrator”; (7) that “[t]he procedures followed in the arbitration did not comply with this Act”; (8) that “[a]n arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias”; (9) that “[t]he award was obtained by fraud”; and (10) that “[t]he award is a family arbitration award that is not enforceable under the Family Law Act.” The Court of Appeal described the list in Campbell at ¶ 28 as “an exhaustive list of grounds on which a court may set aside an arbitral award,” and in Alectra at ¶ 24 as grounds that “are, in general, not concerned with the substance of the parties’ dispute. They concern issues such as the establishment and composition of the arbitration tribunal, compliance with Ontario law, and the requirements of procedural fairness.”

The rest of the section limits the remedy. Under s. 46(2), where the jurisdiction ground applies “and it is reasonable to separate the decisions on matters covered by the arbitration agreement from the impugned ones, the court shall set aside the impugned decisions and allow the others to stand.” Under s. 46(3), the court “shall not set aside an award” on the jurisdiction ground “if the party has agreed to the inclusion of the dispute or matter, waived the right to object to its inclusion or agreed that the arbitral tribunal has power to decide what disputes have been referred to it.” Under s. 46(4), the court shall not set aside an award for corruption, fraud or bias on the part of the arbitrator “if the party had an opportunity to challenge the arbitrator on those grounds under section 13 before the award was made and did not do so, or if those grounds were the subject of an unsuccessful challenge.” Under s. 46(5), the court shall not set aside an award “on a ground to which the applicant is deemed under section 4 to have waived the right to object,” and s. 4(1) deems a party who “participates in an arbitration despite being aware of non-compliance with a provision of this Act, except one mentioned in section 3, or with the arbitration agreement, and does not object to the non-compliance within the time limit provided or, if none is provided, within a reasonable time,” to have waived the right to object. Section 46(6) softens the waiver rules for jurisdiction, because where the ground “could have been raised as an objection to the arbitral tribunal’s jurisdiction to conduct the arbitration or as an objection that the arbitral tribunal was exceeding its authority, the court may set the award aside on that ground if it considers the applicant’s failure to make an objection in accordance with section 17 justified.” The last two (2) subsections supply the remedies. When the court sets aside an award, “it may remove the arbitral tribunal or an arbitrator and may give directions about the conduct of the arbitration” (s. 46(7)), and “[i]nstead of setting aside an award, the court may remit it to the arbitral tribunal and give directions about the conduct of the arbitration” (s. 46(8)).

Two (2) other provisions frame the section. Section 3 allows the parties to agree to vary or exclude any provision of the Act, with six (6) exceptions in a commercial arbitration, and s. 46 is one of them, as are s. 19 (equality and fairness), s. 39 (extension of the time for making an award), s. 48 (declaration of invalidity) and s. 50 (enforcement). An arbitration clause that says the award is final and that the parties will not appeal or seek to set it aside therefore excludes the appeal and leaves s. 46 untouched. The application in Campbell was heard on its merits although the parties had “irrevocably” agreed not to appeal or seek to set aside the award (¶ 16), and in Nasjjec Investments Ltd. v. Nuyork Investments Ltd., 2015 ONSC 4978 (“Nasjjec”) at ¶ 36, Pattillo J. held that the words “final and binding” in an arbitration clause do not preclude an application under s. 46, given ss. 3 and 19. Section 6, under the heading “Court intervention limited,” provides that “[n]o court shall intervene in matters governed by this Act, except for the following purposes, in accordance with this Act: 1. To assist the conducting of arbitrations. 2. To ensure that arbitrations are conducted in accordance with arbitration agreements. 3. To prevent unequal or unfair treatment of parties to arbitration agreements. 4. To enforce awards.” In Campbell at ¶¶ 35 and 37, the Court of Appeal described efficiency and finality as “central objectives which underpin the Act” and quoted s. 6 as an example of the way the Act gives effect to them, and the grounds in s. 46 track the four (4) purposes s. 6 lists.

An appeal and an application to set aside

The two (2) routes differ in what the court is asked to decide. On an appeal under s. 45, the court decides whether the arbitrator was right, within whatever limits the agreement sets, and it “may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court’s opinion on the question of law” (s. 45(5)). On an application under s. 46, the court does not decide whether the arbitrator was right at all. It decides whether one of the ten (10) grounds is made out and, if so, whether to set the award aside, sever it or remit it. The court cannot vary the award on a s. 46 application, and an applicant who wants a different result on the merits needs an appeal.

Whether an appeal exists depends on the clause. Section 45(1) provides that “[i]f the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that, (a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and (b) determination of the question of law at issue will significantly affect the rights of the parties.” Sections 45(2) and (3) allow an appeal on a question of law, or on a question of fact or mixed fact and law, where “the arbitration agreement so provides.” A clause that makes the award “final and binding” removes the appeal. In Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245 (“Baffinland (C.A.)”) at ¶ 39, the Court of Appeal held that the words “finally settled” by arbitration have the same effect, because their ordinary meaning “clearly means no further recourse by way of appeal, in the same way as ‘final and binding’ would.” In Alectra at ¶ 22, the clause said the award was final and binding and the court observed that “[t]here is no ambiguity here: there is no appeal to the court, period.” Where the clause is silent, the appeal lies on a question of law with leave, and the Court of Appeal has warned repeatedly that a question of mixed fact and law, including the interpretation of the contract, is rarely a question of law. Tall Ships at ¶ 3 cautions that judges “should be cautious about extricating questions of law from the interpretation process,” because failing to do so “will result in the very inefficiencies, delays and added expense that choosing an arbitral process seeks to avoid.”

The temptation, when the appeal is unavailable, is to recast the complaint about the result as a complaint about jurisdiction or fairness. The Court of Appeal addressed that temptation directly in Tall Ships. The application judge had set aside three (3) awards on the basis that the arbitrator’s reasoning “hinged on a contractual interpretation that was neither advanced nor argued,” and the court held at ¶ 2 that “in characterizing the same arguments as breaches of procedural fairness falling under s. 46 of the Arbitration Act, the application judge effectively bootstrapped the substantive arguments.” The court added at ¶ 15 that “[t]he alleged breaches of procedural fairness depend on the substantive questions of whether the arbitrator fell into errors of law, which, in my view, he did not,” and at ¶ 95 that “[t]here was no material surprise or unfairness to Tall Ships.” In Campbell at ¶ 56, the court wrote that the case law “has also cautioned courts to be aware of strategic attempts by losing parties to expand the scope of review beyond what they had agreed to under the arbitration agreement,” and at ¶ 58 that an expanded reading of a ground “risks inviting strategic enlargement of the grounds for setting aside an arbitral award, as illustrated by this case.” The Superior Court applies the same test. In Middlesex Centre (Municipality) v. South Winds Development Co., 2026 ONSC 5113 (“Middlesex Centre”) at ¶ 23, Moser J. found that the applicant was “attempting to avoid the terms of the arbitration agreement” by asking the court “to decide a question of law and/or a question of law and fact,” and described the application as “an appeal disguised as a review of procedural fairness.”

The practical consequence is that the first task on receiving an adverse award is to read the clause and classify the complaint. A complaint that the arbitrator misread the contract, preferred the wrong evidence, miscalculated the damages or applied the wrong limitation period is an appeal point, and it fails under s. 46 however it is dressed. A complaint that the arbitrator decided something the parties never referred, shut a party out of the hearing on a point of importance, made the award without reasons, or sat in circumstances that would lead an informed observer to doubt his or her impartiality is a s. 46 point. Both can be raised in one application, as they were in Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2022 ONSC 1900 (“Baffinland”), aff’d 2023 ONCA 245, and in Sitzer Group Holdings No. 1 Ltd. v. Grall Corp., 2026 ONSC 2452 (“Sitzer”), where Dunphy J. granted leave to appeal on a question of law and set aside the same portions of the award under s. 46(1)3, noting at ¶ 12 that “[t]he result under either statutory provision is the same.”

Jurisdiction under paragraph 3

Paragraph 3 of s. 46(1) is the ground most often argued and most often misunderstood. It applies where “[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.” The question it asks is whether the arbitrator had authority to decide what he or she decided, and the Court of Appeal has held that the question “must be answered correctly.” In Smyth v. Perth and Smiths Falls District Hospital, 2008 ONCA 794 (“Smyth”) at ¶ 17, MacPherson J.A. wrote that “an arbitrator must address the issues, and only the issues, referred to him in the arbitration agreement,” and Alectra at ¶ 43 adopted that passage as holding that “s. 46(1)3 sets out a jurisdictional question that must be answered correctly. It neither requires nor authorizes review of the substance of an arbitrator’s award.”

The difficulty is that every arbitrator’s authority comes from an agreement, so every mistaken reading of the agreement can be described as an excess of authority. Alectra closed that door. The arbitrator there had awarded $12.3 million in damages for the unlawful termination of the parties’ agreement, and the application judge set the award aside on the basis that the arbitrator had exceeded his jurisdiction in awarding damages that, on the judge’s reading of the agreement, it did not permit. The Court of Appeal restored the award, holding at ¶ 39 that the application judge’s approach “fails to recognize the distinction between having jurisdiction to award damages and making an error in the exercise of that jurisdiction.” Huscroft J.A. wrote 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,” and 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.” The award may be set aside where, “in the course of resolving the particular question remitted the arbitrator asks and answers an additional second question,” because in that case “the arbitrator had no authority to reach any conclusion on the second question at all.” His Honour then addressed the argument that an unreasonable interpretation is itself a loss of jurisdiction, stating at ¶ 33 that on that approach “arbitration awards that are not subject to appeal would, nevertheless, be vulnerable to being set aside for jurisdictional error. In effect, arbitrators would have only the jurisdiction to make awards that are reasonable or correct,” and at ¶ 34 that “[t]his is not the law in Ontario.” The conclusion at ¶ 41 is the passage most often quoted since. “Once the application judge concluded that the arbitrator acted within the authority conferred upon him by the arbitration agreement, his task was at an end. It was for the arbitrator, not the court, to interpret and apply the substantive provisions of the PAMA, and it is of no moment whether the arbitrator did so reasonably or unreasonably, correctly or incorrectly. The decision was the arbitrator’s to make.” At ¶ 44 the court added 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,” and treated the contrary suggestion in Smyth as obiter.

Mensula applied the same rule to an application judge who had relabelled the arbitrator’s work. The arbitrator had interpreted a condominium declaration to decide a dispute about access to parking units. The application judge accepted that the issue was properly before him but held that he had “in effect” amended the declaration, because the result could not be reached by a proper interpretation. Zarnett J.A. held at ¶ 6 that “[w]hether he interpreted the declaration correctly or reasonably was irrelevant,” and at ¶ 48 that “[i]ssues such as whether or not the arbitrator gave effect to plain language, went beyond the text, properly reconciled inconsistencies, or used surrounding circumstances beyond their proper limits were matters that affected only the quality of his interpretation” and “did not result in a loss of jurisdiction.” The application judge’s approach, at ¶ 52, “confuses the correctness or reasonableness of the interpretive result with whether the arbitrator answered a question that was not remitted to him or dealt with a matter beyond the scope of the arbitration agreement. It equates an incorrect or unreasonable decision on a matter properly before the arbitrator with an exceeding of jurisdiction by deciding a different matter.”

The Superior Court has distilled those decisions into a working test. In Baffinland, Pattillo J. dismissed an application to set aside a $70 million award and held at ¶ 48 that “Section 46(1)3 deals with jurisdiction in its narrow sense, i.e., whether the arbitrator had the authority under the arbitration agreement to make the decision complained of,” and at ¶ 74 that the applicant’s arguments “are based on the legal errors made by the Majority. But that is not the test. The question is whether the Majority determined a dispute not covered by the arbitration agreement or on a matter beyond the scope of the arbitration agreement.” In Competition Motors Ltd. v. Toyota Canada Inc., 2023 ONSC 6388 (“Competition Motors”) at ¶ 41, Penny J. collected the principles and added that courts should be alert not to “brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so,” so that “if there is any room for uncertainty, a court ought to err against branding the issue as jurisdictional.” The complaint in that case, that an appeal panel under industry arbitration rules had misapplied its own standard of review, was held at ¶ 43 to be “a question of law, not a question of jurisdiction.” In Formenton v. Newport Sports Management Inc., 2026 ONSC 1373 at ¶ 21, Schabas J. dismissed a jurisdiction challenge to an award applying a six-month contractual limitation period, because “[t]he arbitrator decided that the dispute was arbitrable, which he clearly had the authority to determine.” In Mattamy (Downsview) Ltd. v. Urbancorp Downsview Park Development Inc., 2023 ONSC 3013 (“Mattamy”) at ¶ 45, Kimmel J. framed the inquiry as three (3) questions drawn from the Court of Appeal’s decision in Mexico v. Cargill, Incorporated, 2011 ONCA 622 (“Cargill”); namely, “a. What was the issue that the arbitral tribunal decided? b. Was that issue within the submission to arbitration? c. Is there anything in the arbitration agreement, properly interpreted, that precluded the tribunal from making the award?” The scope of the submission is read from the arbitration agreement, the request to arbitrate, the pleadings and the terms of appointment (Mattamy at ¶ 46), and Her Honour noted at ¶ 40 that “[a]n arbitrator does not have inherent jurisdiction. Rather, an arbitrator’s jurisdiction is derived exclusively from the authority conferred by the parties in their arbitration agreement and the terms of appointment of the arbitrator.”

The ground succeeds where the arbitrator answers a question nobody asked. Sitzer is a recent illustration. The claimants in a dispute over a Richmond Hill shopping plaza pleaded that the co-owners were partners and claimed a constructive trust over a parcel one side had acquired. The co-tenancy agreement expressly excluded a partnership, the arbitrator found that none existed, and he then found an “ad hoc” fiduciary duty that the claimants had first raised in their opening and awarded a fifty per cent interest in the parcel. Dunphy J. held at ¶ 16 that “[n]o other fiduciary duty was pleaded and the arbitrator had no jurisdiction to investigate, still less declare, the existence of any other non-pleaded fiduciary duty,” and that “[g]iving effect to such an unpleaded cause of action amounts to a reversible excess of jurisdiction under s. 46(1) of the Act.” His Honour observed at ¶ 89 that “[a]nswering a question not submitted amounts to an excess of jurisdiction under clause 3 of s. 46(1) of the Act. It may also be considered as a failure to accord fair treatment under clause 6 since the respondent in the arbitration prepared its case and assembled its evidence and made all of its tactical decisions on the basis of the case pleaded and not the alternative ground proposed in the claimant’s opening.” The portions of the award dealing with the unpleaded duty were struck and the rest of the award stood, which is the result s. 46(2) directs where the impugned decisions can reasonably be separated from the others.

The waiver rules in ss. 4, 17 and 46(3) decide many jurisdiction applications before the merits are reached. Section 17(1) lets the tribunal “rule on its own jurisdiction to conduct the arbitration,” and ss. 17(3) and (5) require a party who objects to the tribunal’s jurisdiction to 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,” and a party who objects that the tribunal “is exceeding its authority” to object “as soon as the matter alleged to be beyond the tribunal’s authority is raised during the arbitration.” If the tribunal rules on the objection as a preliminary question, s. 17(8) gives the objecting party thirty (30) days to apply to the court “to decide the matter,” and s. 17(9) provides that “[t]here is no appeal from the court’s decision.” If the tribunal deals with the objection in the award, the objection is pursued under s. 46. A party who never objects is caught by s. 46(3). In Baffinland at ¶ 39, Pattillo J. held that the three (3) limbs of s. 46(3) “are disjunctive, not conjunctive. The establishment of any one is sufficient to prevent the court from setting aside an award based on jurisdiction,” and at ¶ 45 that the applicant “cannot wait until release of the Majority Award to raise issues of jurisdiction it should have raised with the Tribunal from the very outset of the arbitration.” In Specialty Life Inc. v. Daumier Financial Services Inc., 2026 ONSC 5696 (“Specialty Life”) at ¶ 36, Cavanagh J. held 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 York Region Standard Condominium Corp. No. 1311 v. Star Woodworking Ltd., 2026 ONSC 2381 (“York Region”) at ¶ 28, Pollak J. held that an objection to “the existence or application of the Arbitration Agreement and the jurisdiction of the arbitrator, which includes the authority to make a final and binding decision with no appeal, must be raised before the Arbitrator at the beginning of the Arbitration,” and rejected an objection first raised in a reply affidavit sworn months after the award. The applicant in Sitzer succeeded because, as Dunphy J. found at ¶ 17, it “protested the lack of pleading of an Ad Hoc fiduciary duty immediately after the respondent first raised it with the arbitrator.”

Not every ruling that a party calls jurisdictional is one. In Optiva Inc. v. Tbaytel, 2022 ONCA 646 (“Optiva”), the arbitrator ruled that the claimant could proceed by summary judgment motion, and the question arose whether a challenge to that ruling was a jurisdictional objection that had to be taken to the court within thirty (30) days under s. 17(8). Applying Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, Doherty J.A. held at ¶ 27 that “[t]he ruling on the availability of a summary judgment motion was a ruling on the procedure to be followed in the arbitration,” and at ¶ 28 that “the arbitrator’s decision to proceed by summary judgment was not a decision under s. 17(1) of the Act. Section 17(8) did not apply,” so that “Optiva’s application to set aside the arbitrator’s award was properly brought under s. 46 of the Act.” The words “jurisdiction to conduct the arbitration” in s. 17(1), as Inforica put it at ¶ 16, “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.”

Unequal or unfair treatment and the procedures the Act requires

Paragraphs 6 and 7 of s. 46(1) enforce the Act’s two (2) procedural requirements. Section 19(1) provides that “[i]n an arbitration, the parties shall be treated equally and fairly,” and s. 19(2) that “[e]ach party shall be given an opportunity to present a case and to respond to the other parties’ cases.” Section 20(1) gives the tribunal the procedure, because “[t]he arbitral tribunal may determine the procedure to be followed in the arbitration, in accordance with this Act,” and s. 26(1) lets it “conduct the arbitration on the basis of documents or may hold hearings for the presentation of evidence and for oral argument; however, the tribunal shall hold a hearing if a party requests it.” Sections 26(3) and (4) require that anything a party gives the tribunal be communicated to the other parties and that the tribunal communicate “any expert reports or other documents on which it may rely in making a decision.” Section 38(1) requires that the award “state the reasons on which it is based.” Paragraph 6 is engaged where the applicant “was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party’s case, or was not given proper notice of the arbitration or of the appointment of an arbitrator,” and paragraph 7 where “[t]he procedures followed in the arbitration did not comply with this Act.”

The content of the fairness requirement comes from the law of natural justice, read in the setting of a private process the parties chose. In Nasjjec at ¶ 38, Pattillo J. held that the obligation to treat the parties “equally and fairly” in ss. 19(1) and 46(1)6 “incorporates the requirements of natural justice and procedural fairness into arbitrations,” and that “[a]t a minimum, as provided by those sections, it includes the opportunity to present a case and respond to the other party’s case as well as the right to have notice of the arbitration and the appointment of the arbitrator.” His Honour quoted at ¶ 39 the statement in Hercus v. Hercus, [2001] O.J. No. 534 (S.C.J.) that “[a]rbitrators must listen fairly to both sides, give parties a fair opportunity to contradict or correct prejudicial statements, not receive evidence from one party behind the back of the other and ensure that the parties know the case they have to meet,” and then set the limit at ¶ 40, stating that “it is important to remember that an arbitration is a more informal process than a court proceeding. Furthermore, it is usually final. In such circumstances, the issue of fairness and equality must be considered having regard to the context of the proceeding.” The Court of Appeal said the same in Optiva at ¶ 34, holding that arbitrations “must be conducted in accordance with the applicable terms of the arbitration agreement entered into by the parties, any rules or procedures applicable to the particular arbitration, and any relevant statutory provisions. The procedures must also treat the parties fairly and equally,” and at ¶ 29 that the parties’ “fashioning of their own rules governing the conduct of the arbitration and their selection of a mutually agreeable arbitrator implies a very limited role for judicial oversight of the conduct or outcome of that arbitration.”

The courts have been consistent about what the ground does not reach. Losing is not unfairness. In Nasjjec at ¶ 67, the submissions amounted “to no more than it saying the Arbitrator did not treat it equally or fairly because he found against it on the issues before him. Losing, by itself, does not equate to unfair or unequal treatment.” A discretionary procedural ruling is not unfairness. The refusal to admit fresh evidence on a decided issue “is a procedural decision. As such, it is immune from review under the Act” (Nasjjec at ¶ 130), the refusal of an adjournment to call further evidence that the party had every opportunity to call earlier was “not only reasonable in the circumstances, it was correct” (¶ 93), and the refusal, days before a peremptory hearing, to allow an amendment pleading negligent misrepresentation was upheld in Aquanta Group Inc. v. Lightbox Enterprises Ltd., 2023 ONSC 971 (“Aquanta”), where Akbarali J. wrote at ¶ 28 that “Section 46(1)(6) of the Arbitration Act, 1991 is not a do-over to protect a party from its own choices, but rather to protect a party from unfair or inequitable conduct by an arbitrator. Here, any limit on Aquanta’s ability to fully present the case it wanted to present was a result of its own decisions and actions.” The manner in which evidence is received is not unfairness. In Optiva at ¶ 48, “[w]hile under s. 26 a party has a right to make oral argument, that party has no right to present its evidence in a particular manner,” and at ¶ 50 the court found “no evidence that Optiva was denied the opportunity to present any evidence that it wanted to present before the arbitrator” and “no evidence that Optiva did not have a full and fair opportunity to challenge the case put forward by Tbaytel.” Questions from the tribunal are not unfairness. In Baffinland, Pattillo J. read the transcript excerpts in their entirety and found at ¶ 84 that the chair’s questions “were mainly for clarification of points raised by both the fact and expert witnesses in their evidence,” that “at no point during the hearing did counsel for BIM object to the President’s questioning,” and that questions during submissions “reflect concerns that the President had with respect to some of the positions being taken by the parties and should signal to counsel areas to be addressed.” A legal theory the parties could have addressed is not unfairness. In Optiva at ¶ 54, Doherty J.A. accepted “the proposition that a decision based on a legal theory a party had no opportunity to address in evidence or argument is a fundamentally unfair decision and cannot stand,” and then held at ¶ 59 that the authority the arbitrator relied on “was before the arbitrator,” so that “Optiva had a full opportunity to address anything of relevance” in it, because “[n]either the arbitrator, nor counsel were limited to reading only the paragraphs pinpointed by Tbaytel in written argument.” In Baffinland at ¶ 89, the tribunal’s questions to counsel before argument and an adjournment after it meant that the applicant “had an opportunity to address all issues raised by the Tribunal during argument.” In York Region at ¶¶ 34 and 40, the proceeding was fair because the applicants “were represented by an experienced litigation lawyer,” “[n]o objections relating to process were raised by the Appellants during the arbitration,” and they “had a fair opportunity to call and cross-examine opposing witnesses during the hearing.” In Middlesex Centre at ¶ 64, Moser J. held that a refusal of cross-examination is a breach only where it “interferes with the ability of a party to address key issues or essential elements of its case,” and at ¶ 75 that “[t]he Arbitrator had all the Municipality’s arguments before her. She made her decision. The Municipality was unsuccessful. The parties agreed to final and binding arbitration. There was no breach of procedural fairness.” The treatise literature puts the threshold in the same terms, collecting the holdings that “the applicant must demonstrate that the arbitrator’s conduct was sufficiently egregious to offend basic notions of morality and justice” (Fuego Digital Media Inc. v. DAC Group (Holdings) Ltd., 2018 ONSC 2897 at ¶ 23) and that “[i]f an arbitration is basically fair, courts should resist the temptation to plunge into detailed complaints about flaws in the arbitration process” (Mungo v. Saverino, [1995] O.J. No. 3021 (Gen. Div.) at ¶ 80).

The ground does succeed where the process, as opposed to the result, went wrong. Mattamy is the clearest recent example. The arbitrator raised a new issue at the hearing, invited further evidence and submissions on it, and then, at a case conference and without reasons, refused to admit excerpts from the CPA Handbook that the applicant tendered in response and that the other side did not oppose. Kimmel J. held at ¶ 59 that “[t]here is no question that the Arbitrator had the authority to determine the procedure and make rulings regarding the admissibility of the proposed evidence. However, that does not mean that the rulings he made did not result in a procedural unfairness. That entails a further inquiry as to whether a sufficient opportunity was afforded to Mattamy’s counsel to present their case and whether the procedure engaged to do so was thorough.” Her Honour found at ¶ 74 that the applicant “was not afforded a sufficient opportunity to present its case on the New Issue,” at ¶ 76 that the ruling “appears (in the absence of any reasons) to have been arbitrary and was unfair to Mattamy,” and at ¶ 89 that “[t]he issues in this case do not fall within any blanket category of procedural decisions of arbitrators that are immune from review.” The award was set aside and a new arbitration before a different arbitrator was ordered. Two (2) further points from that decision are important. The court does not ask whether the unfairness changed the result. Kimmel J. held at ¶ 80 that “where there is a finding of procedural unfairness, the Award must be set aside and the court should not engage in any assessment of whether the outcome would have been different if the procedural unfairness had not occurred,” and at ¶ 82 that the test “is whether evidence was sufficiently important that its exclusion at the time was a denial of natural justice” and “is not a test that is applied in hindsight based upon the eventual reasoning of the Award.” Penny J. restated the rule in Competition Motors at ¶ 63, holding that where the court finds a denial of natural justice, “any resulting award must be set aside,” even if the unfairness “would not have impacted the outcome,” and Cavanagh J. applied it in Specialty Life at ¶ 41. The court also distinguished, at ¶ 88, between “discrete procedural interim motions” such as the fresh evidence motion in Nasjjec or the security for costs motion in Inforica and “determinations such as were made in this case that resulted in a party not having been afforded a sufficient opportunity to present their case.” Middlesex Centre at ¶ 62 shows the line in operation. The municipality “is likening itself to Mattamy by asserting it was denied a meaningful opportunity to present its case,” but “[i]n Mattamy, the arbitrator unilaterally decided not to allow Mattamy to present evidence on a new issue despite the fact that the respondent was consenting to its admission. Here, the Municipality says denying it the right to cross-examine South Winds’ engineers is the same thing. It isn’t.” Other awards have been set aside under paragraph 6 where the arbitrator “never explains why the [applicant] lost” (Alberta Cricket Association v. Alberta Cricket Council, 2021 ONSC 8451 at ¶¶ 53-55 and 59) and where a party’s delay and non-participation were treated as a reason to proceed without affording it equal treatment, since “considerations of delay and non-participation cannot justify unfair and unequal treatment” (Spinney v. Fowlie, 2025 ONSC 2632 at ¶ 47).

The analysis under paragraph 6 proceeds without a standard of review in the usual sense. Pattillo J. held in Nasjjec at ¶ 41 that where a denial of natural justice is alleged, “the court must determine whether the applicant has been denied procedural fairness or natural justice. If the court determines that has occurred then any resulting award must be set aside,” and in Baffinland at ¶ 80 that the question “remains whether the requisite level of procedural fairness has been afforded BIM, having regard to the proceeding is an arbitration agreed to by the Parties where both Parties are sophisticated and had legal representation throughout.” Several judges have measured that level by the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, including the nature of the decision, the statutory scheme, the importance of the decision to the parties, their legitimate expectations and the tribunal’s own choice of procedure (York Region at ¶ 33; Middlesex Centre at ¶ 33), and Moser J. added at ¶ 34 that “the court must be cautious and not dictate what it considers the optimal procedure among many options that satisfy the duty of fairness.”

Paragraph 7 is argued less often and succeeds less often. It catches a procedure that departs from a provision of the Act that still applied to the arbitration, and the decisions in which it has succeeded involve an award with no reasons at all, contrary to s. 38(1) (Kalatzis v. Daniels, [2002] O.J. No. 5928 (S.C.J.) at ¶ 8; Peters v. D’Antonio, 2016 ONSC 7141 at ¶¶ 37-39), and a tribunal that refused to hold a hearing on jurisdictional objections, contrary to s. 26(1) (Kitchener (City) v. G.M. Gest Group Ltd., [2003] O.J. No. 4038 (S.C.J.) at ¶¶ 65 and 70). Because s. 20(1) gives the tribunal the procedure and s. 3 lets the parties vary most of the Act’s provisions by agreement, the ground requires the applicant to identify the provision that was breached and show that it still applied, and the Superior Court has held that compliance is reviewed “on a reasonableness standard” rather than correctness (Freedman v. Freedman Holdings Inc., 2020 ONSC 2692 (“Freedman”) at ¶ 138). Optiva at ¶ 41 put the two (2) grounds together, holding that where the parties had given the arbitrator the power to interpret the agreement and to decide the procedure, “the court could set aside the arbitration award based on the arbitrator’s interpretation of the agreement only if satisfied that Optiva was not treated ‘equally and fairly’, or that the procedure followed ‘did not comply’ with the Act: Arbitration Act, ss. 46(1)6-7.”

Insufficient reasons sit between the two (2) grounds. The reasons must let the parties and the reviewing court understand why the arbitrator decided as he or she did, but they need not answer every argument. In York Region at ¶ 41, Pollak J. held, following Remington Georgetown Inc. v. Tarion Warranty Corporation, 2025 ONSC 1285 at ¶¶ 37-40, that an arbitrator’s reasons “must provide a logical and transparent basis for the decision, but need not review every detail of the hearing,” and quoted the observation in that case that “[i]t is apparent that it is the conclusion, and not the reasons, that the Applicant dislikes. But as already explained, disagreement with the arbitrator’s conclusion is not a proper basis for setting aside the decision.” In Aquanta at ¶ 24, the arbitrator “did not cite chapter and verse of the evidence that would not be before him,” but “[h]is reasons are sufficient to permit review by this court.”

Bias, corruption and fraud

Paragraph 8 of s. 46(1) applies where “[a]n arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias,” and paragraph 9 where “[t]he award was obtained by fraud.” The Act also provides a route for raising bias during the arbitration, and s. 46(4) makes that route mandatory where it was available. Under s. 13(1), a party may challenge an arbitrator on the ground that “[c]ircumstances exist that may give rise to a reasonable apprehension of bias,” and under s. 13(3) the challenging party “shall send the arbitral tribunal a statement of the grounds for the challenge, within fifteen days of becoming aware of them.” The tribunal, including the challenged arbitrator, decides the challenge (s. 13(5)), and “[w]ithin ten days of being notified of the arbitral tribunal’s decision, a party may make an application to the court to decide the issue and, in the case of the challenging party, to remove the arbitrator” (s. 13(6)). A party who appointed the arbitrator may challenge “only for grounds of which the party was unaware at the time of the appointment” (s. 13(2)). Section 46(4) then provides that the court shall not set aside the award for bias “if the party had an opportunity to challenge the arbitrator on those grounds under section 13 before the award was made and did not do so, or if those grounds were the subject of an unsuccessful challenge.” Dhaliwal v. Richter International Ltd., 2025 ONCA 522, was an appeal from the dismissal of an application under s. 13 to remove an arbitrator. The arbitrator had dismissed the challenge as filed “well outside of the 15-day time limit prescribed by s. 13(3)” and, in any event, as unfounded (¶ 4), and the Court of Appeal, deciding the merits, held at ¶ 8 that “[s]imply being involved in a separate arbitration with one party’s lawyer is not, on its own,” a circumstance giving rise to a reasonable apprehension of bias, observing that “it is not uncommon for lawyers to select arbitrators for the very reason that they have worked with those arbitrators before,” and at ¶ 9 that an adverse credibility finding “does not, on its own, give rise to a reasonable apprehension of bias, let alone actual bias.”

The test for a reasonable apprehension of bias is the one the Supreme Court of Canada stated in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; namely, whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly. The Court of Appeal applied that test to arbitrators in Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc., 2024 ONCA 839 (“Aroma”), an international case under the ICAA, and noted at footnote 9 that s. 46(1)8 of the domestic Act “specifically provides that an arbitral award may be set aside if” a reasonable apprehension of bias exists. Four (4) propositions from Aroma govern the ground. The test is objective and “is to be applied against the backdrop of a strong presumption of impartiality” (¶ 133), a presumption that, in the words of Mew J. in Jacob Securities Inc. v. Typhoon Capital B.V., 2016 ONSC 604 at ¶ 40, which Zarnett J.A. adopted at ¶ 135, “is equally applicable to arbitrators whose function is in the nature of judicial determination,” because, as His Honour explained at ¶ 137, “[i]t would undermine the integrity of this legislatively endorsed system of dispute resolution, as well as confidence in the finality of the results coming out of it, to hold there to be no presumption that those results were reached by an impartial decision-maker.” The inquiry “is context sensitive and fact specific” (¶ 138). “The subjective views of the parties are not relevant” (¶ 139), so an application judge who treated the parties’ unshared expectations about disclosure as determinative “ended up treating the subjective views not only as relevant, but determinative. The result was to change the test. This is an error of law” (¶ 142). A breach of the duty to disclose “is a relevant, but not determinative, factor in deciding whether a reasonable apprehension of bias has been shown” (¶ 122), and where the undisclosed circumstance is not one that objectively required disclosure, “it is hard to envisage how it could give rise to a reasonable apprehension of bias” (¶ 125). On the facts, the arbitrator’s acceptance of a second, unrelated arbitration from the law firm acting for one party, without disclosure, did not displace the presumption (¶ 14). The Superior Court has applied the same test under the domestic Act. In Nasjjec at ¶ 171, the arbitrator’s release of reasons on a jurisdiction motion before hearing oral argument did not create a reasonable apprehension of bias, because “[t]he decision maker is required, despite any preliminary views, to keep an open mind until all submissions are received,” and at ¶ 173 comments on a party’s conduct in a costs award “were in direct response to submissions” and “were not gratuitous.” In Specialty Life at ¶¶ 70 and 75, the tribunal’s interventions in the cross-examinations on a stay motion fell short of the test.

Where the test is met, the award cannot be saved by weighing the breach, as the Court of Appeal held in Vento Motorcycles, Inc. v. Mexico, 2025 ONCA 82 (“Vento”), another ICAA case whose reasoning on bias is general. The application judge had found that Mexico’s nominee to a three-member tribunal was subject to a reasonable apprehension of bias, because Mexico’s lead counsel had offered him appointments to arbitration rosters during the arbitration, but declined to set aside the award at the remedial stage having regard to the likely effect of the bias on the result and the cost and inconvenience of a rehearing. The Court of Appeal set the award aside. Huscroft J.A. wrote at ¶ 28 that a reasonable apprehension of bias “is no minor procedural defect. A reasonable apprehension of bias means that it is objectively reasonable to think an adjudicator would not decide a dispute fairly. It is a finding that undermines the integrity and legitimacy of the adjudicative process,” at ¶ 42 that it “cannot be balanced away on the basis that it is not serious; that it is thought to have had little impact on the result; or that it would be inconvenient and costly to rehear the arbitration if the award were set aside,” and at ¶ 46 that “the bias of one member taints the tribunal,” because “[t]he parties to an arbitration are entitled to an independent and impartial tribunal, not simply the decision of a quorum of panel members who are unbiased.” His Honour also confirmed at ¶ 66 that “[a]rbitrators are neither representatives of the party who appointed them nor required to protect and promote that party’s interests,” and at ¶ 33 that a court “may refuse to entertain an allegation of bias if, for example, the applicant for relief has not acted conscientiously by raising the bias allegation at the earliest opportunity,” which is the common law counterpart of ss. 13(3) and 46(4).

Fraud means actual fraud. Campbell decided the point. The respondents had agreed to arbitrate the costs of a condominium dispute and, after an award of $30,641.72, applied outside the thirty (30) days to set it aside for fraud and “constructive fraud,” on the basis that the arbitration had decided substantive issues beyond costs. The application judge found no actual fraud but set the award aside for constructive fraud. The Court of Appeal restored the award. Harvison Young J.A. held at ¶ 53 that the word “fraud” has the same meaning in ss. 46(1)9 and 47(2), at ¶ 54 that “had the Legislature intended to extend the meaning of ‘fraud’ to include the different and broader concept of ‘constructive fraud’ one would have expected it to do so explicitly,” at ¶ 57 that “[u]nlike civil fraud, actual dishonesty or intent to deceive is not required to establish constructive fraud,” and at ¶ 58 that “[e]xpanding the meaning of ‘fraud’ also risks inviting strategic enlargement of the grounds for setting aside an arbitral award, as illustrated by this case.” At ¶ 60, “it was not open to the respondents to argue that the arbitrator had erred, or wrongly or even unfairly interpreted the terms of the agreement in seeking to have the award set aside under s. 46(1)9.” Corruption likewise “requires evidence of dishonesty” (¶ 49). The Superior Court’s statement of the elements in Toronto Standard Condominium Corporation No. 1466 v. Weinstein, 2021 ONSC 1306 (“Weinstein”) at ¶ 22, which Campbell cited with approval, is that “[a]n arbitral award will not be set aside on the grounds of fraud or corruption without clear evidence. Fraud requires proof that a false statement was made during the arbitration process and that the person making the false statement knew it was false, or was reckless or careless about its truth. Corruption requires proof of dishonesty or an abuse of power on the part of the arbitrator for personal gain.” Davies J. added at ¶ 37 that “[t]he fact that the arbitrator ruled against Mr. Weinstein’s preliminary objections is not evidence of bias, corruption or fraud.”

The thirty-day limit

Section 47(1) provides that “[a]n appeal of an award or an application to set aside an award shall be commenced within thirty days after the appellant or applicant receives the award, correction, explanation, change or statement of reasons on which the appeal or application is based,” and s. 47(2) that “[s]ubsection (1) does not apply if the appellant or applicant alleges corruption or fraud.” The period runs from receipt, and it runs from receipt of the document on which the application is based, so a correction under s. 44(1), an additional award under s. 44(2) or reasons delivered after the award starts a fresh period for an application based on that document. A request under s. 44 must itself be made “within thirty days after receiving the award,” and a party who intends to ask the arbitrator to correct an oversight and to apply to the court if the request fails should make the request at once and calendar both periods.

The court cannot extend the period. In R & G Draper Farms (Keswick) Ltd. v. 1758691 Ontario Inc., 2014 ONCA 278 (“Draper Farms”), the applicant issued its application after thirty (30) days but within the three (3) months the ICAA would have allowed, argued that the ICAA applied, and asked in the alternative for an extension. The Court of Appeal held that the domestic Act applied to the arbitration, and at ¶ 19 that “the Act [does not] contemplate a judicial discretion to extend the s. 47 time period. Under s. 37 of the Act, an arbitral award binds the parties to the arbitration unless set aside or varied under s. 45 or 46 of the Act. Further, under s. 50(3) of the Act, an arbitral award becomes final within 30 days unless otherwise set aside or varied. The Act makes no express provision for the extension of the 30-day time period under s. 47. And s. 50(3) is inconsistent with the notion of a residual discretion to extend the 30-day time period.” At ¶ 20 the court noted that the Act does provide for the relaxation of some time periods, such as the time for making an award under s. 39, “[h]owever, no such provision exists under the Act in respect of the s. 47 time period.” Campbell confirmed the rule at ¶ 48, stating that “[t]his court has affirmed that there is no judicial discretion to extend the 30-day time limit,” and that the rule “is not only consistent with the wording of the statute, but also with the principles of efficiency and finality.”

The exception for corruption or fraud is read with the holding that fraud means actual fraud. A party cannot plead fraud to reopen the window. In Campbell at ¶ 59, the court noted that had the respondents applied within thirty (30) days, their complaints “might have fallen within some of the other grounds enumerated in s. 46 for setting aside an award, such as the invalidity of the agreement, as set out in s. 46(1)2, or procedural unfairness, as set out in s. 46(1)6,” but “[t]hose routes were no longer open to the respondents after the expiration of 30 days by the express terms of ss. 46 and 47,” and at ¶ 60 that “the respondents sought to circumvent the time limit by alleging fraud and constructive fraud.” In Weinstein at ¶ 26, Davies J. held that “[i]t is not sufficient for Mr. Weinstein to simply allege there was corruption or fraud to avoid the 30-day limit for commencing an application to set aside an arbitral award,” quoting the earlier holding in Calabrese v. Weekes, 2003 CanLII 3311 (Ont. S.C.J.) at ¶ 22 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 jurisdiction and bias grounds in that case were held to be out of time at ¶¶ 14 and 19, and the court noted at ¶ 12 that a ruling on jurisdiction made as a preliminary question must be challenged under s. 17(8) within thirty (30) days of the ruling, while a ruling on jurisdiction made in the award is challenged by an appeal under s. 45 or an application under s. 46.

The application, the record and the remedies

An application to set aside an award is brought in the Superior Court of Justice, which s. 1 of the Act defines as the “court” for the purpose of s. 46, by notice of application, and it is commonly heard on the Commercial List in Toronto where the arbitration was commercial. Unlike an appeal under s. 45(1), the application requires no leave. It is frequently met with a cross-application to enforce the award under s. 50, as in Nasjjec, Aquanta and Specialty Life, and the two (2) are heard together.

The record depends on the ground. On jurisdiction, the court reads the arbitration agreement, the request to arbitrate, the pleadings, the terms of appointment and the award, and answers the question itself. In an international case, Russian Federation v. Luxtona Limited, 2023 ONCA 393 at ¶ 40, the Court of Appeal held 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,” so that the court “is not limited to the record that was before the tribunal,” with the caveat at ¶ 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.” On fairness and bias, the record is the procedural history, and the applicant must put it before the court. The application in Baffinland was decided on the transcript excerpts the parties filed, and the application in Mattamy on the correspondence and case conference record surrounding the excluded evidence. An applicant who alleges that it was denied the chance to call a witness or answer a point must show from the record that it asked and was refused, because the cases turn on what was requested and objected to at the time. In Middlesex Centre at ¶ 74, the municipality “did not appear on October 3 requesting an adjournment. They did not seek a future date to file or call further evidence,” and in York Region at ¶ 34, “[n]o objections relating to process were raised by the Appellants during the arbitration or they were dealt with in favour of the Appellants.” The applicant in Nasjjec “had the opportunity to respond with its own expert but chose not to” (¶ 92), and the applicant in Specialty Life was unrepresented at its stay motion as a result of “its decision not to seek access to frozen funds to pay for legal representation for the arbitration” (¶ 51).

The remedies are those in s. 46. The court may set the award aside, in whole or in part. Severance is mandatory under s. 46(2) where the jurisdiction ground applies to part of the award and separation is reasonable, as in Sitzer, and the Superior Court has held that partial relief is available under paragraphs 6 and 7 as well (Freedman at ¶¶ 246 and 252). The court may remove the arbitrator and give directions under s. 46(7), as Kimmel J. did in Mattamy at ¶ 97 by directing the parties “to submit their Consulting Fees Dispute to arbitration before a new arbitrator to be agreed upon, or, failing agreement, to be appointed by the court.” The court may remit the award to the tribunal with directions under s. 46(8) instead of setting it aside, which is the usual course where the defect is a gap in the reasons or a claim left undecided and the arbitrator can still address it (Freedman at ¶¶ 338 and 350; Parrish and Heimbecker Ltd. v. Canadian National Railway Co., 2016 ONSC 6916 at ¶¶ 87-88), and the choice between the same arbitrator and a new one turns on “principles of efficiency, cost-effectiveness and fairness to the parties” (Jodie Calvert Wang Professional Corp. v. Takhar, 2019 ONSC 5535 at ¶ 86, applying Victoria University (Board of Regents) v. GE Canada Real Estate Equity, 2016 ONCA 646 at ¶ 143). The court may not vary the award under s. 46 (Freedman at ¶ 254; Basandhi v. Patel, 2016 ONSC 7556 at ¶¶ 11-12). If the award is set aside, s. 52(2) allows the court to order “that the period from the commencement of the arbitration to the date of the order shall be excluded from the computation of the time within which an action may be brought on a cause of action that was a claim in the arbitration,” which protects the claimant against the limitation period while a new arbitration is constituted. Costs follow the result in the usual way. Pattillo J. awarded partial indemnity costs against the unsuccessful applicant in Nasjjec at ¶ 187, because “it was entitled to bring them” and “has cooperated in bringing matters forward expeditiously,” and the Court of Appeal awarded costs of the appeal to the successful parties in the decisions discussed above.

A further appeal lies to the Court of Appeal only with leave of that court. Section 49 provides that “[a]n appeal from the court’s decision in an appeal of an award, an application to set aside an award or an application for a declaration of invalidity may be made to the Court of Appeal, with leave of that court.” The domestic decisions of the Court of Appeal discussed in this article reached that court by that route, and leave was refused on the s. 46 aspect of Baffinland (Baffinland (C.A.) at footnote 2). A refusal of leave to appeal an award under s. 45 is a different matter, because the Court of Appeal has held that it is generally not appealable at all unless the application judge mistakenly declined jurisdiction to consider whether leave was warranted (Optiva at ¶ 63; Baffinland (C.A.) at ¶¶ 22 and 25).

Enforcement while the application is pending

Section 50(1) allows “[a] person who is entitled to enforcement of an award made in Ontario or elsewhere in Canada” to apply to the court for judgment, and s. 50(3) provides that “[t]he court shall give a judgment enforcing an award made in Ontario unless, (a) the thirty-day period for commencing an appeal or an application to set the award aside has not yet elapsed; (b) there is a pending appeal, application to set the award aside or application for a declaration of invalidity; (c) the award has been set aside or the arbitration is the subject of a declaration of invalidity; or (d) the award is a family arbitration award.” The exception is not a stay. Section 50(5) provides that where the period has not elapsed or an application 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) lets the court give “directions for the speedy disposition” of the pending proceeding where it stays enforcement. A set-aside application therefore does not suspend the award of its own force, and a respondent to an enforcement application that wants time must ask for a stay on terms, which may include payment into court or security. Once the application fails, judgment follows. Davies J. held in Weinstein at ¶ 39 that having dismissed the set-aside application, “I am required to grant a judgment enforcing the arbitral award,” and Cavanagh J. granted enforcement in Specialty Life at ¶ 87 for the same reason.

The enforcement provisions also show why the thirty-day limit is strict. Draper Farms at ¶ 19 reasoned from s. 50(3) that “an arbitral award becomes final within 30 days unless otherwise set aside or varied,” so that a discretion to extend the period for applying would contradict the enforcement scheme. An application to enforce may be commenced at any time until the later of December 31, 2018 and the tenth anniversary of the day the award was received or, if an application to set aside was commenced, the date on which it was finally determined (s. 52(3)).

International awards

Where the arbitration is international within the meaning of the ICAA, the domestic Act does not apply (s. 2(1)(b)), and Draper Farms at ¶ 14 confirms that “the application of that statute and the ICAA are mutually exclusive.” The ICAA gives the force of law to the UNCITRAL Model Law, and the equivalent of s. 46 is article 34. Article 34(1) provides that “[r]ecourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article,” and article 34(2) provides that an award “may be set aside by the court specified in article 6 only if” the applicant proves incapacity or invalidity of the agreement, want of proper notice or an inability to present its case, an award beyond the scope of the submission, or a composition of the tribunal or arbitral procedure not in accordance with the parties’ agreement, or the court finds that the subject matter is not arbitrable or the award conflicts with the public policy of Ontario. The time limit under article 34(3) is three (3) months “from the date on which the party making that application had received the award,” and the court under article 6 is the Superior Court of Justice. The grounds track s. 46 closely, which is why the Court of Appeal’s international decisions on jurisdiction (Cargill and Luxtona), on fair hearing breaches (Popack v. Lipszyc, 2016 ONCA 135 (“Popack”), discussed below, and Vento) and on bias (Aroma and Vento) are cited in applications under the domestic Act.

One difference deserves mention. Article 34(2) says the award “may” be set aside, and the Court of Appeal held in Popack that the word confers a discretion whose scope “is significantly affected by the ground upon which the award could be set aside” (¶ 30). For a fair hearing breach, the court weighs “the extent that the breach undermines the fairness or the appearance of the fairness of the arbitration and the effect of the breach on the award itself” (¶ 31), including the seriousness of the breach, its potential impact on the result, the prejudice of redoing the arbitration, and the complaining party’s conduct after it learned of the breach (¶¶ 24 and 36), and “the essential question remains the same” whatever label is placed on the error; namely, “what did the procedural error do to the reliability of the result, or to the fairness, or the appearance of the fairness of the process?” (¶ 45). The panel in Popack had met ex parte with the arbitrator from an earlier attempted arbitration between the parties, and the award stood because the applicant’s conduct after learning of the meeting “strongly suggests a tactical decision whereby Mr. Popack was content to allow the panel to finish its adjudication and make its award despite the improper ex parte meeting,” so that “[t]o reward that tactic by setting aside the award would eviscerate the finality principle that drives judicial review of arbitral awards” (¶ 39). Vento at ¶¶ 37-41 described the Popack balancing as the Canadian approach to fair hearing breaches in commercial arbitration while holding that a reasonable apprehension of bias cannot be balanced away. Section 46(1) also says the court “may” set aside an award, and the two (2) approaches now sit side by side in the domestic cases. In Specialty Life, Cavanagh J. held at ¶ 41 that a denial of natural justice requires that the award be set aside “even if the procedural fairness would not have impacted the outcome,” and at ¶¶ 67 and 70, applying Vento, that interventions by the tribunal which “do not undermine the fairness or appearance of fairness of the arbitration” do not warrant setting aside. The reconciliation is that the balancing goes to whether the irregularity amounts to a denial of a fair hearing at all, and once the court finds that it does, the award must be set aside without any inquiry into whether the result would have been different (Mattamy at ¶ 80; Competition Motors at ¶ 63). The applicant’s own conduct is addressed through ss. 4 and 46(5), through the requirement that objections be made at the time, and through the holding in Aquanta that the ground “is not a do-over to protect a party from its own choices.”

Practical considerations

The application to set aside is won or lost during the arbitration, and the party who expects to need it must build the record then. Every objection to the tribunal’s jurisdiction, or to a claim or theory that strays beyond the pleadings, should be made in writing at the time the point arises, because ss. 17(3) and (5) require it, s. 46(3) bars the ground where it was not made, and the applicant in Sitzer succeeded only because it objected “immediately.” A party who learns of circumstances suggesting bias has fifteen (15) days under s. 13(3) to challenge the arbitrator, and s. 46(4) bars the ground where the challenge was available and not made. A party who wants an oral hearing should request one under s. 26(1), and a party who wants to cross-examine, call a witness, file further evidence or answer a new point should ask, on the record, so that the refusal is in the record. The applicant in Mattamy had tendered the evidence and been refused; the applicant in Middlesex Centre had not sought an adjournment or a date to call further evidence. A party who believes the arbitrator has overlooked something should consider a request under s. 44(1)(b) to “amend the award so as to correct an injustice caused by an oversight on the part of the arbitral tribunal,” which must be made within thirty (30) days, because the Superior Court has held that a party’s failure to use s. 44(1)(b) “undermines a subsequent application to set aside the arbitration award on the basis of denial of procedural fairness” (Freedman at ¶ 191; Edenrock Holdings Inc. v. Moscone, 2025 ONSC 32 at ¶ 14).

After the award, the thirty (30) days run from receipt and cannot be extended. The first week should be spent classifying the complaint against the clause and the ten (10) grounds, deciding whether an appeal is available and whether to seek leave, and assembling the record. A set-aside application that is an appeal in disguise will fail, and it will fail with costs. Where both routes are available, they should be brought in one application, as in Sitzer and Baffinland. Where the complaint is jurisdiction, the notice of application should identify the question the arbitrator decided and the document that defines the submission, because the court will answer the three (3) Cargill questions from those documents. Where the complaint is fairness, the application should identify the specific opportunity that was denied, when it was requested, and what the tribunal said, and it should not argue the merits. The winning party should apply to enforce under s. 50 at once and, if a set-aside application is pending, ask the court to enforce or to stay enforcement on conditions under s. 50(5) and to give directions for a speedy hearing under s. 50(6). Both parties should expect the application to be heard on a documentary record, with the award, the agreement, the procedural orders and the transcripts, and should prepare it as the Court of Appeal has described the inquiry, as a review of the arbitrator’s authority and the fairness of the process rather than of the award.

How we can help

Grigoras Law acts as counsel in commercial arbitrations seated in Toronto, in shareholder, partnership, contract and fraud disputes, and in the court applications that follow the award, including applications to set aside or enforce an award under ss. 46 and 50 of the Act, applications for leave to appeal under s. 45, and appeals to the Court of Appeal under s. 49. The decisions described in this article are the ones we make with clients when an award arrives, and the objections and requests that preserve the grounds are the ones we make during the hearing. Our arbitration practice and our commercial litigation practice are described on the pages linked here. Our earlier articles on arbitrating a shareholder dispute in Ontario and on evidence in a commercial arbitration in Ontario deal with the stay motion, the arbitrator’s remedial powers and the law of evidence before the tribunal, and our page on civil fraud covers the claims in which allegations of fraud in the award most often arise.

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