Is Your Arbitration Clause Appealing? No Appeal Available Where Clause Says Dispute Is "Finally Settled" By Arbitration

Subsection 45(1) of the Ontario Arbitration Act, 1991 (the "Act") provides that if an arbitration clause does not deal with appeals on questions of law, a party may seek leave of the court to appeal an award on such questions. In its recent decision, Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C. ("Baffinland"), 2023 ONCA 245, the Ontario Court of Appeal ("ONCA") considered whether an arbitration clause stating that disputes shall be "finally settled" by arbitration precluded the losing party from seeking leave to appeal on questions of law.

In concluding that such language did so, the ONCA upheld the lower court's decision and adopted the common-sense approach to contractual interpretation espoused in Sattva Capital Corporation v. Creston Moly Corp. ("Sattva") ¹ More specifically, the ONCA rejected the appellant's contention that the application judge failed to properly apply the presumption of consistent expression. The appellant argued that the parties