The Ontario Court of Appeal recently confirmed the proper appeal procedure for an arbitrator’s ruling on a preliminary question in an arbitration. Joseph Lebovic Charitable Foundation v. Jewish Foundation of Greater Toronto, 2024 ONCA 933, concerned an appeal of an application decision. The application judge was asked to review a ruling from the parties’ arbitrator on his own jurisdiction to hear the issues before him, which was upheld. We invite you to read our firm’s blog on the application judge’s decision for more information. The applicants sought leave to appeal the application judge’s decision to the Ontario Court of Appeal. The respondents brought a motion to quash this appeal on the basis that the Court of Appeal’s jurisdiction to hear it was precluded by section 17(9) of the Arbitration Act 1991, S.O. 1991, c. 17 (the “Act”). The Court of Appeal agreed with the respondents and quashed the applicants’ … Read More
Stay of Court Proceedings in Favour of Arbitration – Standard of Proof
In the recent decision Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited, 2023 ONCA 260, the Ontario Court of Appeal (“ONCA”) reviewed the law of international commercial arbitration, and in particular opined on the issue of the standard of proof that a party needs to meet in order for the court to grant a stay of a court proceeding pursuant to section 9 of the International Commercial Arbitration Act, 2017 (the “Act”), in favour or arbitration. Section 9 of the Act states as follows: Where, pursuant to article II (3) of the Convention or article 8 of the Model Law, a court refers the parties to arbitration, the proceedings of the court are stayed with respect to the matters to which the arbitration relates. The appellant submitted that the proper analytical framework for assessing a request to stay an action under the Act was set out in the … Read More
Do it, Don’t Just Say it! Court of Appeal refuses to Rule on Arbitration Clause
On a recent motion before the Court of Appeal in Paulpillai Estate v. Yusuf, 2020 ONCA 655 (CanLII), Jamal J.A. clarifies that a party needs to bring a motion if it wants the proceeding to be referred to arbitration. In the underlying decision, Paulpillai v. Yusuf, 2020 ONSC 851 (CanLII), the motion judge noted that the responding parties “have maintained in their affidavit evidence that the matter should have proceeded by way of arbitration, but at no time did they bring a motion seeking to stay these proceedings or to compel the Applicants to proceed by way of arbitration”. Accordingly, the motion judge found that the responding parties have waived their right to seek to have the issues in the action determined by way of arbitration. In agreement with the motion judge, Jamal J.A., writing for the Court of Appeal, clarifies that, even though (a) there was an arbitration clause … Read More