CANADA Law and Practice Contributed by: Craig A.B. Ferris KC, Michael J. Donaldson KC and Scott Lucyk, Lawson Lundell LLP
the foundation of private dispute resolution ( TELUS Communication Inc v Wellman , 2019 SCC 19). However, non-signatories/third parties may be sub - ject to an arbitration agreement by operation of the law, including subsidiaries, assignees, trustees and other parties that claim through or under a party to the arbitration agreement ( Peace River Hydro Partners v Petrowest Corp , 2022 SCC 4). Canadian courts have also recognised the following situations where a non-signatory may be subject to an arbitration agreement: • an agency relationship exists between a party and a non-signatory; • the corporate veil between subsidiary and parent companies can be pierced; • an arbitration agreement is incorporated by refer - ence or by hyperlink into a contract; and • a non-party is bound by an estoppel ( DNM Sys- tems v Lock-Block Canada Ltd , 2015 BCSC 2014). Except for Quebec, Ontario and British Columbia, Article 17 of the Model Law (1985 version) applies in Canada. It affords an arbitral tribunal the discretion to order any party to take such interim measures of protection as the arbitral tribunal may consider nec - essary. In Quebec, an arbitrator’s jurisdiction to grant interim measures is codified in Article 638 of the Code of Civil Procedure. In Ontario and British Columbia, the 2006 version of Article 17 of the Model Law applies, meaning that interim measures can be issued to: • maintain or restore the status quo pending deter - mination of the dispute; • take action that would prevent, or refrain from tak - ing action that is likely to cause, current or immi - nent harm or prejudice to the arbitration process itself; 6. Preliminary and Interim Relief 6.1 Types of Relief
• provide a means of preserving assets out of which a subsequent award may be satisfied; or • preserve evidence that may be relevant and mate - rial to the resolution of the dispute. Unlike the 1985 version of the Model Law, the 2006 version of the Model Law does contemplate the issu - ance of preliminary orders. Article 17 of the 2006 version of the Model Law permits a party to apply without notice for an interim measure and a preliminary order directing a party not to frus - trate the purpose of the interim measure requested. The arbitral tribunal may grant the preliminary order without notice where disclosure of the request for the interim measure to the affected party risks frustrating its purpose. 6.2 Role of Courts Court intervention is limited under Article 5 of the Model Law. However, Article 9 of the Model Law pro - vides that it is not incompatible with an arbitration agreement for a party to request an interim measure of protection from a court. In Quebec, Article 638 of the Code of Civil Procedure permits a party to ask the court to homologate an arbitrator’s provisional meas - ure to give it the same force and effect as a judgment of the court. Institutional rules in Canada also reflect the principle in Article 9 of the Model Law. For example, Article 26 (h) of the VanIAC Rules provides that “a request for an interim measure addressed by a party to a judicial authority shall not be deemed incompatible with these Rules...” Similarly, Article 27 (3) of the ICDR Rules pro - vides that a request to a court for interim measures is not incompatible with an arbitration agreement and will not be deemed a waiver of the right to arbitrate. Unique to British Columbia, the BC Act also expressly provides that the court has the same powers to issue an interim measure as it has in relation to court pro - ceedings; however, the court may refer the request to an arbitral tribunal if the court considers it proper. With respect to preliminary orders issued under the 2006 version of the Model Law, Article 17C(5) expressly states that a preliminary order is not an arbi -
95 CHAMBERS.COM
Powered by FlippingBook