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Results: 4 Answers
International Arbitration
14.
Grounds for challenging an award
14.1
What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?
 
Canada
International arbitral awards generally cannot be appealed, even if an attempt is made to provide appeal rights in the arbitration agreement (Xerox Canada Ltd v MPI Technologies Inc, 2006 ONSC 41006 (SCJ) at para 144 ; see also J Brian Casey, Arbitration Law of Canada: Practice and Procedure, 3rd ed (Huntington: JurisNet, LLC, 2017) p478). Whether it is possible to appeal depends on the contractual agreement to arbitrate and the mutual intention of the parties. A party can challenge an award only by bringing an application to set it aside on one of the listed grounds. To bring a challenge, a party must generally show that:

  • it was legally incapable;
  • it was not given proper notice of the arbitrator or proceeding;
  • it was denied the opportunity to fully present its case; or
  • the arbitrator’s decision went beyond the scope of what was agreed upon (Bayview Irrigation District #11 v Mexico, [2008] OJ No 1858 (Ont SCJ)).

If the arbitration agreement is silent on appeal rights in the domestic context, arbitral awards are final and binding and can be varied or set aside only through the relevant arbitration acts (RH McLaren and JP Sanderson, Innovative Dispute Resolution: The Alternative (Toronto: Carswell, 2003) at 5-13, relying upon Anderson Industrial Doors Ltd v Genstar Construction Ltd, [1985] BCJ No 580, 16 CLR 208 (BCSC)). Most acts allow an appeal on a question of law with leave of the court, which is unlikely to be granted - even from awards that are considered flawed - without an element of public interest (6524443 Canada Inc v Toronto (City), [2017] OJ No 3045, 2017 ONCA 486 (Ont CA); Costa v Costa, [2008] OJ No 930, 89 OR (3d) 670 (Ont SCJ)). Appeals on questions of fact or mixed fact and law are allowed only in some jurisdictions and only if the arbitration agreement explicitly provides for this. If it does not, the appeal will be dismissed. Under all of the domestic acts, unless the arbitration agreement so provides, there is no appeal on a question of fact or of mixed fact and law (J Brian Casey, Arbitration Law of Canada: Practice and Procedure, 3rd ed (Huntington: JurisNet, LLC, 2017) p481).

In Quebec, an arbitration award may only be challenged by way of an application for its annulment under Article 648 of the Code of Civil Procedure. Such an application is subject to the same rules as those governing an application for the homologation of an arbitration award, with the necessary modifications.

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP
14.2
Are there are any time limits and/or other requirements to bring a challenge?
 
Canada
A party to an international arbitration can challenge an award only by bringing an application to set it aside on one of the listed grounds. To bring a challenge, a party must generally show that:

  • it was legally incapable;
  • it was not given proper notice of the arbitrator or proceeding;
  • it was denied the opportunity to fully present its case; or
  • the arbitrator’s decision went beyond the scope of what was agreed upon (UNCITRAL Model Law, Article 34(2)).

An application to set aside an award may not be made once three months have elapsed from the date on which the party making that application received the award or the date on which that request was disposed of by the arbitral tribunal (UNCITRAL Model Law, Article 34(3)).

In the domestic context, an appeal of an award or an application to set an award aside must be commenced within 30 days of receipt of the award, correction, explanation, charge or statement of reasons on which the appeal or application is based.

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP
14.3
Are parties permitted to exclude any rights of challenge or appeal?
 
Canada
International arbitral awards generally cannot be appealed, even if an attempt is made to provide appeal rights in the arbitration agreement (Xerox Canada Ltd v MPI Technologies Inc, 2006 ONSC 41006 (SCJ) at para 144 ; see also J Brian Casey, Arbitration Law of Canada: Practice and Procedure, 3rd ed (Huntington: JurisNet, LLC, 2017) p 478).

The law of the province in which the arbitration is seated dictates whether parties are permitted to exclude any rights of appeal in the domestic context. In Ontario and Saskatchewan, if the arbitration agreement prohibits appeals, there is no right of appeal. Other jurisdictions – including Alberta, New Brunswick and Manitoba – do not let parties contract out of the right of appeal, with leave, on a question of law (J Brian Casey, Arbitration Law of Canada: Practice and Procedure, 3rd ed (Huntington: JurisNet, LLC, 2017) p480).

If parties wish to restrict or contract out of their domestic appeal rights, they should do so expressly and clearly (J Brian Casey, Arbitration Law of Canada: Practice and Procedure, 3rd ed (Huntington: JurisNet, LLC, 2017) p481).

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP