CANADA Law and Practice Contributed by: Craig A.B. Ferris KC, Michael J. Donaldson KC and Scott Lucyk, Lawson Lundell LLP
ent of the other terms of the contract ( Peace River Hydro Partners v Petrowest Corp , 2022 SCC 41).
independence. That obligation applies throughout the arbitration proceedings. The parties may also agree to additional requirements with respect to an arbitrator’s independence, or use a set of arbitral rules that do so. For example, the VanIAC Rules contain provisions requiring: (i) a written declaration that arbitrators must sign regarding their independence and impartiality; and (ii) limits on the parties’ communication about the disputes with any arbitrator or any candidate for appointment as an arbitrator. 5. Jurisdiction 5.1 Challenges to Jurisdiction The principle of competence-competence is recog - nised by courts across Canada. Under Canadian arbitration legislation, an arbitral tri - bunal can rule on its own jurisdiction as a preliminary matter or in a final award. A party may apply to a supe - rior court for a review of the tribunal’s ruling, whether the arbitration proceedings have concluded or not. In 2020, the Supreme Court of Canada established a new exception to the competence-competence prin - ciple based on access to justice considerations ( Uber Technologies Inc v Heller , 2020 SCC 16). Under this new exception, courts should not refer a jurisdictional challenge to an arbitrator if there is a real prospect that the challenge will never be resolved, unless the court determined the issue. For example, this exception was found to arise where the costs that a party faced to participate in the arbitration and chal - lenge jurisdiction were more than the amount of dam - ages the party sought. In 2022, the Supreme Court of Canada held that an otherwise valid arbitration agreement could be ren - dered unenforceable in the context of a court-ordered receivership under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 ( Peace River Hydro Partners v Petrowest Corp , 2022 SCC 41).
4. The Arbitral Tribunal 4.1 Limits on Selection
There are no statutory limitations on the selection of arbitrators in Canada. Arbitrators are not required to be legally qualified. The parties have broad autonomy with respect to the selection of arbitrators, including the procedure to be followed, the number of arbitrators and any specific qualifications required. 4.2 Default Procedures Under the international arbitration laws in each prov - ince and territory, the default procedures for select - ing an arbitrator are consistent with Article 11 of the Model Law. However, these provisions only apply if the parties did not agree to a procedure in the contract or in a set of arbitral rules. 4.3 Court Intervention Canadian courts will only intervene in the selection of an arbitrator if a party makes a request to the court in accordance with Article 11 of the Model Law. 4.4 Challenge and Removal of Arbitrators The challenge or removal of an arbitrator is governed by the Model Law, or the procedure agreed to by the parties or contained in the applicable arbitral institu - tion’s rules. In most Canadian jurisdictions, parties will make a request to challenge or remove an arbitrator in the first instance to the arbitral panel, and if unsuccessful, an application could be made to the provincial superior court (the trial-level court). 4.5 Arbitrator Requirements In accordance with Article 12 of the Model Law, an arbitrator must disclose any circumstances likely to give rise to justifiable doubts as to their impartiality or
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