Decisions On Arbitral Jurisdiction Reaffirm Canada's Pro-Arbitration Stance

This article reviews two appeal decisions that not only reaffirm, but also refine, Canada's arbitration-friendly stance. These decisions address:

• whether set-aside applications challenging an arbitral tribunal's jurisdictional decision are de novohearings; and

• when the court will refer jurisdictional questions to arbitration in cases where the parties have taken steps in related court proceedings.

Ontario Court of Appeal Holds That Jurisdictional Set-Aside Applications Are De Novo Hearings, but Cautions Against Seeking "Two Evidential Bites of the Cherry"

In Russian Federation v Luxtona Limited, 2023 ONCA 393, the Ontario Court of Appeal confirmed that applications to set aside the jurisdiction are de novo hearings and that parties may submit fresh evidence.