CANADA Law and Practice Contributed by: Craig A.B. Ferris KC, Michael J. Donaldson KC and Scott Lucyk, Lawson Lundell LLP
11. Review of an Award 11.1 Grounds for Appeal
equivalent). Parties to an arbitration cannot agree to exclude or expand the scope of the application to set aside the award. 11.3 Standard of Judicial Review The traditional approach of Canadian courts has been to show deference to arbitral awards; when reviewing arbitral awards, the courts will apply the deferential standard of “reasonableness”, subject to a narrow set of exceptions. For example, the least deferential “correctness” standard has been applied where the question is one of jurisdiction (ie, whether an arbitral decision was on matters beyond the scope of the submission to arbitration), following the 2011 decision of the Ontario Court of Appeal in Cargill ( United Mexican States v Cargill , 2011 ONCA 662, leave ref’d [2012] SCCA No 528 (SCC)). See the discussion on divergence in the case law in 5.5 Standard of Judicial Review for Juris - diction/Admissibility. As a result of two recent decisions of the Supreme Court of Canada, the question of the correct standard of review from an arbitrator’s jurisdictional decision is unsettled, and likely to be the subject of further juris - prudence ( Canada (Minister of Citizenship and Immi- gration) v Vavilov , 2019 SCC 65 and Wastech Services Ltd v Greater Vancouver Sewerage and Drainage Dis- trict , 2021 SCC 7). In lululemon athletica canada inc v Industrial Color Productions Inc , 2021 BCCA 108, the British Columbia Court of Appeal concluded that the standard of review of an application to set aside an arbitral award under the Model Law (or international commercial arbitra - tion statutes) is correctness, and that Cargill ( United Mexican States v Cargill , 2011 ONCA 662, leave ref’d [2012] SCCA No 528 (SCC)) remains the leading case on the standard of review for applications to set aside arbitral awards.
Canada’s international commercial arbitration statutes permit a party to an arbitration to apply to the courts to have the award set aside on specific grounds. However, an application to set aside an arbitral award is not the same as an “appeal” of the judgment in a commercial case. When the decision of a trial judge in a commercial case is appealed in Canada, the grounds on which it may be reviewed are not limited or restricted. For a discussion about the setting aside of a domestic arbitral award on similar grounds and the distinction with a civil appeal, see Alectra Utilities Corporation v Solar Power Network Inc , 2019 ONCA 254, leave ref’d [2019] SCCA No 202 (SCC). Article 34 of the Model Law limits the grounds on which an arbitral award may be set aside. In particular, Article 34 of the Model Law provides that an arbitral award may be set aside if the applying party proves: • contractual incapacity; • invalidity under the law to which the parties have subjected it; • lack of notice of the arbitral appointment or pro - ceedings, or inability to present the party’s case; • jurisdictional grounds (ie, the award deals with or decides matters beyond the scope of the submis - sion to arbitration); or • the composition of the arbitral tribunal or proce - dure was not in accordance with the parties’ agree - ment. Article 34 (2)(b) further permits the court to set aside an arbitral award if the court finds that the subject matter of the dispute is not capable of settlement by arbitration under the relevant law, or if the arbitral award conflicts with public policy. 11.2 Excluding/Expanding the Scope of Appeal An application to set aside an arbitral award is not the same as an appeal and is limited to the grounds set out in Article 34 of the Model Law (or its statutory
12. Enforcement of an Award 12.1 New York Convention
Canada is a signatory to the New York Convention on Recognition and Enforcement of Foreign Arbitral
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