September 5, 2024
An arbitrator has jurisdiction under the Arbitrations Act, 1991 of Ontario to determine whether the arbitrator has jurisdiction as a preliminary matter. This principle is well established.
Either party may apply to have the arbitrator’s decision reviewed by a Superior Court judge.
The Act goes on to provide that an appeal of a ruling on a preliminary issue is final, and in that situation, there is no further a judgment of a Superior Court judge to the Ontario Court of Appeal.
The Court of Appeal reinforces this point in Clost v. Rennie, a dispute over a lease. In doing so, they rely upon both the Act and an earlier Court of Appeal decision which stated that “The Arbitration Act, 1991 is clear that there is no further right of appeal from the decision of a Superior Court judge hearing a review of an Arbitrator’s decision on a preliminary question.”
These provisions apply only to preliminary issues, and the law surrounding appeals from an award of an arbitrator is a different situation. Those rights may vary depending upon the appeal provisions of the arbitration clause.
Clost is silent on what happens if the arbitration clause contemplates a further right of appeal to the Court of Appeal. That may depend upon what happens in a future case.
TAKEAWAYS
- It is important to distinguish between a decision on a preliminary issue and the final award of an arbitrator.
- Because the Superior Court judge’s decision is final, it is important to do the best job at that stage. There is no “do over”.
- Appeal rights in your arbitration clause are still important.
WHAT WEILERS LLP CAN DO FOR YOU
At Weilers LLP, our corporate commercial and dispute resolution lawyers have experience interpreting unusual clauses in agreements and do our best to make sure our clients understand them, but in order for that to work, our clients need to be open with us about their understanding of the terms, and of course, need to read the fine print.
If you are dragged into a complex commercial arbitration, Weilers LLP has lawyers well-suited to represent you at a realistic cost, with realistic advice and strong representation. We work closely with our own commercial drafting colleagues within the firm to provide clear and concise opinions. We are able to share the same cooperation with many outside lawyers who appreciate our commitment to our mutual clients.