Ontario Civil


Court will not interfere with procedural or interlocutory orders in arbitration matters

Regional municipalities retained applicant to design, build, and operate energy-from-waste facility. Applicant entered into main agreement with respondent CPP as material subcontractor to perform construction services for facility. Agreement provided for CPP to participate as party to any arbitration between municipalities and applicant if notified by either party and for applicant and CPP to submit to binding arbitration of any dispute not resolved through negotiations. CPP entered into agreements with subcontractors for specific services required to build facility. Subcontract agreement also contained mandatory arbitration clause. CPP issued notice of arbitration to applicant. Arbitrator granted CPP’s motion for order adding subcontractors as parties to arbitration. Applicant’s application for order setting aside arbitrator’s decision was granted on basis that arbitrator failed to satisfy himself that persons sought to be joined in arbitration were parties to main agreement. CPP appealed and applicant brought motion to quash appeal on basis that no appeal lies from decision of application judge under Arbitration Act, 1991 (Ont.). Motion granted. Article 16(3) of UNCITRAL Model Law on International Commercial Arbitration and s. 17(9) of Act provide that there shall be no appeal from decision of court on question of arbitrator’s jurisdiction. CPP’s submission that application judge did not have jurisdiction to review applicant’s application to set aside arbitrator’s ruling because his decision was not jurisdictional in nature, and that court had jurisdiction to hear appeal of judge’s decision, was rejected. Whether person is party to arbitration, agreement is question of jurisdiction. Court will not interfere with procedural or interlocutory orders in arbitration matters. Appeal quashed. 

Covanta Durham York Renewable Energy Limited Partnership v. Barton-Malow Canada, Inc. (July 11, 2016, Ont. C.A., G.R. Strathy C.J.O., David Brown J.A., and Grant Huscroft J.A., CA M46511 (C62067)) 268 A.C.W.S. (3d) 16.

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