CANADA Law and Practice Contributed by: Craig A B Ferris, Michael J Donaldson and Scott Lucyk, Lawson Lundell LLP
ent of the other terms of the contract ( Peace River Hydro Partners v Petrowest Corp , 2022 SCC 41).
held that where a member of a court must recuse her or himself, the same duty does not attach to the rest of the court ( ENMAX Energy Corporation v TransAlta Generation Partnership , 2021 ABCA 366). 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 independence. That obligation applies throughout the arbitration proceedings. The parties may also agree to additional requirements regarding an arbitrator’s independence or adopt a set of arbitral rules that do so. For example, the VanIAC Rules contain provisions requiring: • a written declaration that arbitrators must sign regarding their independence and impartiality; and • 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 Courts across Canada recognise the principle of com - petence-competence. 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 determines the issue. For example, this exception was found to apply where the costs
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 Challenges to or removal of an arbitrator are governed by the Model Law, the parties’ agreed procedure or the applicable arbitral institution’s rules. In most Canadian jurisdictions, parties will request the arbitral panel to challenge or remove an arbitrator in the first instance and, if unsuccessful, may then apply to the provincial superior court (the trial-level court). The Court of Appeal for Ontario has held that a find - ing of a reasonable apprehension of bias against one arbitrator on a panel of three necessitates a set-aside of any arbitration award issued by the panel ( Vento Motorcycles Inc . v The United Mexican States, 2025 ONCA 82). This approach is a departure from cases involving judges in Canada, in which the courts have
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