Comparative Guides
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Results: 4 Answers
International Arbitration
Arbitrability and restrictions on arbitration
How is it determined whether a dispute is arbitrable in your jurisdiction?
In Canada, arbitrability is determined largely by common law considerations. That is, the right to arbitration and the force of arbitral awards are contractual obligations based on the mutual intention of the parties. Public policy exemptions to arbitrability have narrowed in recent years, especially in the international arbitration context (for example, Mitsubishi Motors Corp v Soler Chrysler-Plymouth Inc, 723 F 2d 155 (1st Cir 1983); Scherk v Alberto-Culver Co, 417 US 506 (1974)). Similarly, public policy considerations do not preclude arbitrators from hearing charter or constitutional arguments which may arise in the dispute (Douglas/Kwantlen Faculty Assn v Douglas College (1990), 52 BCLR (2d) 68 (SCC)).

Nonetheless, legislatures and courts in various provinces have ruled on the arbitrability of certain types of disputes. For example, in Quebec, disputes over the status and capacity of persons, family matters or other matters of public policy may not be submitted to arbitration (Quebec Civil Code, SQ 1991, c 64, s 639). The Supreme Court of Canada in Seidel v Telus Communications Inc acknowledged that certain types of relief in British Columbia’s Business Practices and Consumer Protection Act are available only through a superior court and are therefore not arbitrable ([2011] 1 SCR 531, at paras 7, 34, 41). The Ontario Consumer Protection Act similarly precludes mandatory arbitration clauses in consumer contracts, as defined under that legislation (Consumer Protection Act, SO 2002, c 30, s 7(2)). Advanced Explorations Inc v Storm Capital Corp summarises the principles underpinning cases that limit arbitrability: “if the legislature wishes to preclude an issue from being the subject of arbitration, it must expressly state this intention … it is not enough that the subject matter over which arbitration is sought be subject to regulation or concern the public order.” (2014 CarswellOnt 8794, 2014 ONSC 3918 (Ont SCJ), at paras 61-72).

Legislative limits on the arbitrability of disputes are imposed in Quebec. For example, Section 11.1 of the Consumer Protection Act provides that any stipulation that obliges the consumer to refer a dispute to arbitration is prohibited. There are other constraints preventing parties from submitting their disputes to arbitration, including constitutional constraints for disputes involving federal or provincial charters.

Canadian courts rarely rely on arbitrability to refuse a stay and the question of arbitrability is largely a non-issue (Eiffel Developments Ltd v Paskuski, [2010] AJ No 1173, 2010 ABQB 619 (Alta QB)).

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP
Are there any restrictions on the choice of seat of arbitration for certain disputes?
The parties have significant flexibility when selecting the arbitration’s seat. The seat is often, but need not necessarily be, the jurisdiction where the hearing takes place. The seat may also, but need not necessarily be, in the same legal jurisdiction as the governing law of the contract. In Quebec, the Civil Code of Quebec and the Code of Civil Procedure are silent about the choice of seat for arbitration.

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