Thomas G. Heintzman, O.C., Q.C., FCIArb

When Is An International Arbitration Award Enforceable Against A Non-Signatory To The Arbitration Agreement?

An important issue relating to enforcement of an arbitral award is whether the award can be enforced against a party who did not sign the arbitration agreement. If the arbitral tribunal sitting outside Canada finds that party to be a party to the arbitration agreement, even if that person did not sign the agreement, what […]

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Does The CCDC Dispute Resolution Clause Require Arbitration?

Most building contracts contain dispute resolution clauses which refer to arbitration.  A dispute resolution clause can be mandatory – it can require arbitration – or it can be permissive – it can permit arbitration if all parties agree to arbitration when the dispute arises. One would think that the most important thing to make clear […]

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When Is A Commercial Arbitration Decision Unreasonable?

Canadian courts will generally over-rule a decision of a domestic arbitral tribunal only if the decision is “unreasonable.”  What does this word mean? Is the standard of “unreasonableness” different in a commercial arbitration than, say, in a labour or employment arbitration?  If the arbitral award is found to fall within the bounds of reasonableness by […]

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May An Order Dismissing A Stay Motion Be Appealed?

In Canada, there has been a controversy about appeals from stay motion decisions in the context of arbitration clauses.  The issue is whether a decision of a motion judge denying the stay of an action, when the moving party relies on an arbitration agreement, may be appealed to the Court of Appeal. The controversy arises […]

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When Does An Arbitration Clause Require Arbitration?

Whether an arbitration agreement requires, or only permits, arbitration is a continuing issue under arbitration law. In building contracts, this issue often arises when the agreement states that arbitration will follow mediation or the involvement of the consultant on the project. The questions that can arise is whether arbitration is mandatory if mediation or the […]

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Is A “May Arbitrate” Clause Mandatory Or Permissive?

What is the meaning of an arbitration clause which states that a dispute “may be determined by arbitration”?   Does the clause mean that the arbitration process is permitted but not mandatory?  Or does the word “may” mean that the parties do not have to have a dispute, but if they do, the arbitration clause applies? […]

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Does A Mediation Agreement Suspend The Limitation Period Or The Period To Set Down A Lien For Trial?

An agreement to mediate is often found in arbitration and building contracts. Yet, the impact of mediation upon court or arbitral proceedings is uncertain. Does an agreement to mediate mean that, until the mediation occurs, there is no cause of action and therefore there is no entitlement to commence arbitration or an action?  In that […]

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Is A Third Party Obliged To Bring Its Claim Under An Arbitration Agreement?

A recurring issue in arbitration law is whether a third party is bound to assert his or her claims by way of arbitration, even though the third party is not a party to the arbitration agreement. In Yaworski v. Gowling Lafleur Henderson LLP, the Alberta Court of Appeal recently held that, where a limited partnership […]

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ULCC Working Group Issues Discussion Paper on a new Uniform International Commercial Arbitration Act

In January 2013, a Working Group of the Uniform Law Conference of Canada (“ULCC”) issued a Discussion Paper with respect to proposals for a new Uniform International Commercial Arbitration Act. The Discussion Paper is intended to generate consultations by May 2013 and final approval by the ULCC in August 2013.  Background to the Discussion Paper […]

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Does The UNCITRAL Model Law Apply To A Claim Under The Consumer Protection ACT?

The Queen’s Bench Court for Saskatchewan recently applied the Saskatchewan International Commercial Arbitration Act (SICAA) and the UNCITRAL Model law annexed to that Act and stayed an action based on the Saskatchewan Consumer Protection Act and a contract which was apparently between two Canadian entities. The decision in Zwack v. Pocha is important for two […]

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