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Arbitration - International Commercial Arbitration Act (Ontario) (2). InFrontier AF LP v. Rahmani
In InFrontier AF LP v. Rahmani (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against a ruling where "the application judge recognized, as binding and enforceable in Ontario, an arbitral award (the “Award”) that resulted from an arbitration conducted in the Dubai International Financial Centre (“DIFC”), a common law jurisdiction in Dubai, United Arab Emirates".
Here the court illustrates aspects of the sparsely-litigated ICAA arbitration regime:[1] In Ontario, recognition and enforcement of foreign arbitration awards is governed by the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (“ICAA”). One way in which it does so is by giving force of law to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted by the United Nations Conference on International Commercial Arbitration in New York on 10 June 1958 (the “Convention”). The provisions of the Convention apply to the recognition and enforcement of an arbitral award made in another “State” that has accepted the Convention.[1]
[2] The Convention favours enforcement of arbitral awards while respecting the parties’ autonomy to choose their own arbitral procedure. Under Article V of the Convention, recognition and enforcement may be refused only if the party resisting it establishes one or more specified grounds including, under Article V 1(d), that “[t]he composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place”.
[3] In the judgment under appeal, the application judge recognized, as binding and enforceable in Ontario, an arbitral award (the “Award”) that resulted from an arbitration conducted in the Dubai International Financial Centre (“DIFC”), a common law jurisdiction in Dubai, United Arab Emirates. He ordered the appellant to pay amounts that were owing under the Award, totaling over $2.5 million USD, to the respondent.
[4] The principal issue on this appeal concerns whether the application judge erred in considering the law of Dubai in determining that the appellant had not established the ground set out in Article V 1(d) of the Convention. The appellant argues that the application judge was not permitted to consider the law of Dubai—the place where the arbitration was conducted—because the parties had an agreement about arbitral procedure.
[5] For the reasons that follow, I conclude that the application judge did not, contrary to the Convention, allow the law of the place of arbitration to oust or override the parties’ agreement as to the applicable procedure. Rather, he interpreted their agreement to determine what procedure they had agreed to. He found that the parties agreed to rules in place at the time of agreement or “such amended version” as had been adopted when their arbitration commenced. He considered the law of Dubai as it bore on the questions of whether the rules had been amended and what that amended version was.
[6] The application judge’s interpretation of the agreement, and his finding of what the amended version of the rules was, is free of extricable legal error and subject to deference on appeal.
[7] There is also no reversible error in the application judge’s finding that the appellant had not established any other Convention ground to refuse recognition and enforcement.
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The Statutory Provisions
[17] Article V of the Convention sets out a number of grounds on which recognition and enforcement of a foreign arbitral award may be refused. Of particular relevance to this appeal, Article V 1(b) and (d) provide:1 Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
[...]
(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
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(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place [18] Additionally, Article V 2(b) states that recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that “[t]he recognition or enforcement of the award would be contrary to the public policy of that country.”
[19] The Convention has force of law in Ontario under s. 2 of the ICAA.
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b. Discussion
[32] The “purpose of the [Convention] is to facilitate the enforcement of arbitration agreements by ensuring that effect is given to the parties’ express intention to seek arbitration”: GreCon Dimter inc. v. J. R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401, at para. 43. Canada ratified the Convention to further the “presumptive enforceability and overall predictability of arbitration agreements”: Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41, [2022] 3 S.C.R. 265, at para. 123. The Convention has an “enforcement facilitating thrust”, while recognizing the “central role of the parties in fashioning the arbitration procedure and provid[ing] sanctions for failure to adhere to the agreed procedures”: Polimaster Ltd. v. RAE Systems Inc., 623 F (3d) 832 (9th Cir. 2010), at p. 16566, citing Gary B. Born, International Commercial Arbitration in the United States, 3rd ed. (Deventer: Kluwer Law and Taxation Publishers, 1994), at p. 44.
[33] Article V 1(d) of the Convention “gives effect, in recognition proceedings, to the parties’ autonomy to agree upon internal ‘arbitral procedures’ different from those prescribed by the laws of the place of the arbitration”: Gary B. Born, International Commercial Arbitration, 2nd ed., vol. 2 (Alphen aan den Rijn: Kluwer Law International, 2014), at §11.03[C], p. 1549. “If the parties have made an agreement on the composition of the arbitral tribunal and the arbitral procedure, according to Article V (1)(d), the alleged irregularity of these matters has to be determined under the agreement alone”: Albert Jan van den Berg, The New York Convention of 1958, (The Hague: Kluwer Law and Taxation Publishers, 1981), at p. 324.
[34] The appellant is correct (and the respondent does not dispute) that the question was whether the procedure followed was “not in accordance with the agreement of the parties”. However, before comparing the procedure agreed to and the procedure that was followed, it is necessary to interpret the parties’ agreement to determine “what they have agreed”: International Council for Commercial Arbitration, ICCA’s Guide to the Interpretation of the 1958 New York Convention, 2nd ed. (2024), at p. 95.
[35] The application judge correctly identified the key question as a matter of interpretation of the parties’ agreement. As he stated: “In order to determine whether the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, I must determine what their agreement provides for in these respects”.
[36] He then turned to the wording of the Agreement, noting that it specified the DIFC-LCIA Rules as “being the applicable procedural rules”. He reviewed those rules and observed that they contemplated that they might be amended and that parties who referred to them in an arbitration agreement were taken to have referred to any amended version in place when their arbitration commenced. The Preamble to the DIFC-LCIA Rules provided:Where any agreement, submission or reference howsoever made or evidenced in writing (whether signed or not) provides in whatsoever manner for arbitration under the rules of or by the DIFC-LCIA Arbitration Centre or DIFC-LCIA, the parties thereto shall be taken to have agreed in writing that any arbitration between them shall be conducted in accordance with the Rules of Arbitration of the DIFC-LCIA Arbitration Centre as set forth below or such amended version of those rules as the DIFC-LCIA Arbitration Centre may have adopted hereafter to take effect before the commencement of the arbitration and that such Rules of Arbitration form part of their agreement (collectively, the "Arbitration Agreement"). These Rules of Arbitration of the DIFC-LCIA Arbitration Centre comprise this Preamble, the Articles and the Index, together with the Annex and the Schedule of Arbitration Costs as from time to time may be separately amended by the DIFC-LCIA Arbitration Centre (the "DIFC-LCIA Rules"). [37] In conducting this analysis, the application judge did not stray from the question of what procedural rules the parties had agreed to. The application judge was entitled to find that parties had not agreed to a static set of rules—rules as they stood at the time of the Agreement, unaffected by any changes to them made thereafter. Rather, by referring to the DIFC-LCIA Rules, they had agreed to “such amended version” of those rules as adopted by the DIFC-LCIA Arbitration Centre. In so concluding, he was engaged in interpreting the whole Agreement, including terms that had been referentially incorporated.
[38] Was the application judge barred from looking at Dubai law, specifically Decree 34, in deciding whether there was an amended version of the DIFC-LCIA Rules in place at the time the arbitration commenced? The appellant says he was, because Article V 1(d) has two mutually exclusive branches. Under the first branch, if the parties have an agreement, only the agreement is looked to. If there is no agreement, the second branch is engaged and the law of the place of arbitration governs.
[39] I agree that the branches of Article V 1(d) are mutually exclusive. But it does not follow that, when proceeding under the first branch, the law of the place of arbitration can never be relevant. As the Supreme Court has noted, parties to an arbitration agreement are free, subject to any mandatory provision by which they are bound, to choose any procedures they consider appropriate, basing them on local or foreign law or the rules of a variety of arbitration organizations. Importantly, “the rules become those of the parties, regardless of where they are taken from”: Union des consommateurs c. Dell Computer Corp., 2007 SCC 34, [2007] 2 S.C.R. 801, at para. 52 (emphasis added).
[40] Thus, parties could state in their arbitration agreement that the procedure will be the rules for arbitration enacted and amended from time to time by the legislature of the place where the arbitration is to be conducted. If they did, the court in a recognition proceeding would have to look at the enactments and amendments of that legislature to determine the agreed upon procedure. The court would be doing so under the first branch of Article V 1(d), not the second, because the parties’ agreement about procedure made the law of the place of the arbitration relevant to the question of what rules the parties had agreed to.
[41] This case presents a variation of that situation. The parties’ Agreement about procedure makes the law of the place of arbitration relevant to the question of what rules the parties agreed to.
[42] The application judge explained, at para. 43 of his reasons, that he looked at Decree 34 because the DIFC-LCIA Arbitration Centre, which enacted the DIFC-LCIA Rules, was subject to the laws of Dubai for arbitrations seated there. In other words, Dubai had the legal power to affect that institution and its rules. He concluded that Decree 34 expressly did so. As noted, it abolished one half of the partnership that enacted the rules—the DIFC Arbitration Institute—and transferred its property to DIAC, while making provision for the DIAC Rules, once effective, to replace the rules that had been adopted by the DIFC Arbitration Institute. As he interpreted Decree 34, “the [DIAC Rules], once they became effective on March 21, 2022, became an amended version of the [DIFC-LCIA Rules]”.
[43] In my view, the application judge did not err by looking at Decree 34 for this purpose. He did not allow the law of the place of arbitration to contradict the parties’ autonomy by imposing on them a set of rules to which they did not agree. Rather, because the parties had agreed to such amended version of the DIFC-LCIA Rules as were in place at the time their arbitration commenced, he was entitled to take into account a decree passed by a jurisdiction with authority over the institution that enacted the rules to determine if an amendment had been effected. . Vento Motorcycles, Inc. v. Mexico
In Vento Motorcycles, Inc. v. Mexico (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, this from a Chapter 11 decision by a three-arbitrator NAFTA tribunal, here against Mexico.
Here the court summarizes some aspects of the UNCITRAL Model Law:The governing legislation
[12] The UNCITRAL Model Law on International Arbitration (the “Model Law”), adopted into Ontario law by the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5, establishes and delimits judicial authority to set aside an arbitration award. The court may set aside an award only if one of the enumerated errors is established. Article 34(2) of the Model Law is the governing provision, and in particular subsection (2)(a)(iv):(2) An arbitral award may be set aside by the court specified in article 6 only if:(a) the party making the application furnishes proof that:
(i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or
(ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law. [emphasis added] . Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc.
In Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc. (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal, here in an international arbitration bias context.
Here the court considers international arbitration in Ontario, and duties of an arbitrator to disclose issues of bias and conflicts of interest:[1] Arbitration is an important, statutorily sanctioned, mode of dispute resolution. Undergirding its acceptability is the core principle that an arbitrator must be impartial. An arbitrator must not actually be biased, nor can there be a reasonable apprehension that the arbitrator is biased.
[2] An international commercial arbitration seated in Ontario is governed by the UNCITRAL Model Law on International Arbitration (the “Model Law”), adopted in the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5. The Model Law contains provisions that promote the core principle of arbitral impartiality. Article 12(1) imposes a duty on an arbitrator to disclose – before appointment and as the arbitration proceeds – any circumstance likely to give rise to justifiable doubts about the arbitrator’s impartiality. Article 12(2) permits a challenge to the arbitrator or the award that was made if circumstances exist that give rise to justifiable doubts about the arbitrator’s impartiality, as long as the person making the challenge was unaware of the circumstances when they participated in the arbitrator’s appointment. Justifiable doubts about impartiality is an equivalent phrase to reasonable apprehension of bias.
[3] Although the duty to disclose and the test for a successful challenge are easy to articulate, their interaction and application in differently nuanced cases can be more challenging.
[4] High stakes arbitrations often involve arbitrators who are in high demand, sophisticated parties, and experienced lawyers. This gives rise to the prospect that an arbitrator might have had prior engagements or be asked to undertake future ones, in which the parties or lawyers have some involvement. How the duty to disclose, and the right to successfully challenge an arbitral outcome, apply based on different versions of this potential scenario have recently been extensively canvassed by courts in the United Kingdom: Halliburton Company v. Chubb Bermuda Insurance Ltd., [2020] UKSC 48, [2021] 2 All E.R. 1175, and Aiteo Eastern E & P Company Ltd. v. Shell Western Supply and Trading Ltd. & Ors, [2024] EWHC 1993 (Comm). This case requires those issues to be considered in yet another variation of this potential scenario.
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[11] The Model Law’s test that dictates when an arbitrator must make disclosure is an objective one. It considers whether relevant circumstances would likely give rise to justifiable doubts about impartiality from the standpoint of a fair-minded and informed observer, rather than through the eyes of the parties. The application judge erred in law in the way she articulated and applied the test for disclosure and by taking into account subjective considerations that the parties did not make known to the Arbitrator. Her approach essentially converted the objective test into a subjective one. Under the objective test, the Arbitrator’s failure to disclose his engagement in what the application judge herself termed a second unrelated arbitration – one which, vis-à-vis the ongoing MFA Arbitration, had no common party or overlapping issues of significance – was not a breach of the legal duty of disclosure.
[12] A finding that there was a breach of the legal duty of disclosure is germane to, although not determinative of, whether an arbitral award should be set aside for reasonable apprehension of bias. A failure to make legally required disclosure may indicate a lack of concern about matters that likely raise justifiable doubts about impartiality in a way that confirms the existence of those justifiable doubts. But a failure of an arbitrator to disclose according to an expectation of the parties that was not shared with the arbitrator does not have a similar effect. The application judge erred in taking into account this kind of failure to disclose in her analysis of reasonable apprehension of bias.
[13] The test for a reasonable apprehension of bias on the part of an arbitrator is objective – like the legal test for disclosure, it considers the relevant circumstances from the standpoint of a fair-minded and informed observer, applied against the backdrop of a strong presumption that an arbitrator is impartial. The application judge erred in law in the way she applied that test, in effect changing the test to one particularly attuned to unshared subjective views. The circumstances she considered to determine that a reasonable apprehension of bias was present went outside of those properly considered in applying the test objectively.
[14] Applying the standard of reasonable apprehension of bias objectively, the presumption of impartiality on the part of the Arbitrator was not displaced by his acceptance of a retainer to arbitrate a second matter that did not involve any of the parties to the MFA Arbitration nor any overlapping issues of significance.
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(1) The Legal Duty of Disclosure
[69] What disclosure is required turns on the legal regime that governs the arbitration. The MFA Arbitration was governed by the Model Law. Article 12(1) of the Model Law sets out the legally mandated duty of disclosure of an arbitrator:When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.[3] [70] In Halliburton, the Supreme Court of the United Kingdom endorsed the view that English common law on an arbitrator’s duty to disclose should develop consistently with the Model Law: at paras. 113-15. Halliburton is therefore germane to the interpretation of the legal requirement to make disclosure applicable in this case.
[71] Article 12(1) is best understood in relation to its purposes. The purposes of disclosure by an arbitrator are intertwined: disclosure allows the arbitrator to avoid the appearance of bias and the parties to consider disclosed matters and take steps if so advised. As Lord Hodge said in Halliburton, at para. 70:One way in which an arbitrator can avoid the appearance of bias is by disclosing matters which could arguably be said to give rise to a real possibility of bias. Such disclosure allows parties to consider the disclosed circumstances, obtain necessary advice, and decide whether there is a problem with the involvement of the arbitrator in the reference and, if so, whether to object or otherwise to act to mitigate or remove the problem [citations omitted]. [72] Article 12(1) is thus aimed at surfacing matters that could justify challenging the arbitrator for bias. Article 12(2) of the Model Law provides that an arbitrator may be challenged “if circumstances exist that give rise to justifiable doubts as to [the arbitrator’s] impartiality or independence”. The key difference between the two subsections is that disclosure is required for a circumstance that is likely to give rise to justifiable doubts, while a challenge may be brought only where the circumstances give rise to justifiable doubts. The word “likely” means that the obligation to disclose arises if the “circumstances could reasonably give rise to justifiable doubts.” Thus “the obligation to disclose extends … to matters which may not ultimately prove to be sufficient to establish justifiable doubts as to the arbitrator’s impartiality”: Halliburton, at paras. 113, 117.
[73] As explained in Halliburton, at paras. 113-15, like the test for disclosure prescribed by the English common law, Article 12(1) of the Model Law sets out an objective test. Circumstances “likely to give rise to justifiable doubts as to [the proposed arbitrator’s] impartiality or independence” are to be assessed from the standpoint of a fair-minded and informed observer.
[74] Unlike the Model Law, the IBA Guidelines are not a legal standard. As explained in Halliburton, the IBA Guidelines “set out good arbitral practice which is recognised internationally … [and] can assist the court in identifying … what matters may require disclosure…. But the IBA Guidelines do not of themselves give rise to legal obligations or override national law or the arbitral rules chosen by the parties”: at para. 71. The parties could have, but did not, adopt the IBA Guidelines as the governing disclosure regime for their arbitration.[4]
[75] This distinction is especially important in this case, because the objective standard for disclosure in Article 12(1) of the Model Law differs from the IBA Guidelines which propose, in General Standard 3(a), a different rule for disclosure by an arbitrator. It provides that “If facts or circumstances exist that may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence, the arbitrator shall disclose such facts or circumstances to the parties … prior to accepting his or her appointment or, if thereafter, as soon as the arbitrator learns of them” (emphasis added).
[76] In other words, as Halliburton explained, the IBA Guidelines use a “subjective approach to the duty of disclosure … [that] addresses the perception of parties to an arbitration who are … involved in a stressful and often expensive dispute. English law, by contrast, adopts an objective test by looking to the judgement of the fair-minded and informed observer”: at para. 72.
[77] At para. 116, the court in Halliburton reinforced this distinction:In summary, the arbitrator’s legal obligation of disclosure imposes an objective test. This differs from the rules of many arbitral institutions which look to the perceptions of the parties to the particular arbitration and ask whether they might have justifiable doubts as to the arbitrator’s impartiality. [78] This does not mean that other parts of the IBA Guidelines, which provide practical guidance about disclosure, are not useful even when the legal requirement for disclosure is the objective test in the Model Law, rather than the subjective test in General Standard 3(a). The “Practical Application” guidance in Part II of the IBA Guidelines (the stop-light system and the commentary about it) can be used to “assist the court in identifying … what matters may require disclosure”: Halliburton, at para. 71. They can be viewed as “an authoritative source of information as to how the international arbitration community may regard particular fact situations in reasonable apprehension of bias cases”: Jacob Securities Inc. v. Typhoon Capital B.V., 2016 ONSC 604, at para. 41. But care must always be taken to use that guidance through the lens of the legal requirement of disclosure that governs the arbitration, rather than changing the requirement. At paras 79-95 the court explains the application judge's errors, and then applies the 'objective test' for disclosure at paras 96-119.
. China Yantai Friction Co. Ltd. v. Novalex Inc.
In China Yantai Friction Co. Ltd. v. Novalex Inc. (Div Ct, 2021) the Divisional Court considered a motion for leave to appeal involving the International Commercial Arbitration Act (Ontario). I include it here to give an example of how this infrequently used statute operates.
. Uber Technologies Inc. v. Heller
In Uber Technologies Inc. v. Heller (SCC, 2020) the Supreme Court of Canada considers a conflict between Ontario's International Commercial Arbitration Act and it's Arbitration Act:[20] The ICAA and AA are exclusive. If the ICAA governs this agreement, the AA does not, and vice versa (AA, s. 2(1)(b)). As the Superior Court correctly identified, whether the ICAA governs depends on whether the arbitration agreement is “international” and “commercial”. That the agreement here is international is not in dispute. Whether the agreement is commercial is contested. To answer this question, one must understand the legislative scheme of the ICAA.
[21] The ICAA implements two international instruments: the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Can. T.S. 1986 No. 43, adopted by the United Nations Conference on International Commercial Arbitration in New York on June 10, 1958 (“Convention”) and the UNCITRAL Model Law on International Commercial Arbitration, U.N. Doc. A/40/17, Ann. I adopted by the United Nations Commission on International Trade Law on June 21, 1985, as amended by the United Nations Commission on International Trade Law on July 7, 2006 (“Model Law”). Only the Model Law is relevant here.
[22] Section 5(3) of the ICAA states that the Model Law applies to “international commercial arbitration agreements and awards made in international commercial arbitrations”. The meaning of “commercial” in this section of the ICAA must be the same as the meaning of “commercial” under the Model Law, as the latter states that it “applies to international commercial arbitration” (art. 1(1)).
[23] While the Model Law does not define the term “commercial”, a footnote to art. 1(1) provides some guidance:The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.
(Model Law, art. 1(1), fn. 2) [24] The Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration: Report of the Secretary-General further explains that “labour or employment disputes” are not covered by the term “commercial”, “despite their relation to business”:Although the examples listed include almost all types of contexts known to have given rise to disputes dealt with in international commercial arbitrations, the list is expressly not exhaustive. Therefore, also covered as commercial would be transactions such as supply of electric energy, transport of liquified gas via pipeline and even “non-transactions” such as claims for damages arising in a commercial context. Not covered are, for example, labour or employment disputes and ordinary consumer claims, despite their relation to business.
(United Nations Commission on International Trade Law, Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration: Report of the Secretary-General, U.N. Doc. A/CN.9/264, March 25, 1985, at p. 10 (emphasis added); see also p. 11.) [25] Two points emerge from this commentary. First, a court must determine whether the ICAA applies by examining the nature of the parties’ dispute, not by making findings about their relationship. A court can more readily decide whether the ICAA applies (or an arbitrator can more readily decide whether the Model Law applies) by analysing pleadings than by making findings of fact as to the nature of the relationship. Characterising a dispute requires the decision-maker to examine only the pleadings; characterising a relationship requires the decision-maker to consider a variety of circumstances in order to make findings of fact. If an intensive fact-finding inquiry were needed to decide if the ICAA or the Model Law applies, it would slow the wheels of an arbitration, if not grind them to a halt.
[26] The second point to draw is that an employment dispute is not covered by the word “commercial”. The question of whether someone is an employee is the most fundamental of employment disputes. It follows that if an employment dispute is excluded from the application of the Model Law, then a dispute over whether Mr. Heller is an employee is similarly excluded. This is not the type of dispute that the Model Law is intended to govern, and thus it is not the type of dispute that the ICAA is intended to govern.
[27] This result is consistent with what courts have held (Patel v. Kanbay International Inc., 2008 ONCA 867, 93 O.R. (3d) 588, at paras. 11-13; Borowski v. Fiedler (Heinrich) Perforiertechnik GmbH (1994), 1994 CanLII 9026 (AB QB), 158 A.R. 213 (Q.B.); Rhinehart v. Legend 3D Canada Inc., 2019 ONSC 3296, 56 C.C.E.L. (4th) 125, at para. 27; Ross v. Christian & Timbers Inc. (2002), 2002 CanLII 49619 (ON SC), 23 B.L.R. (3d) 297 (Ont. S.C.J.), at para. 11). It is also consistent with the Model Law’s reference to “trade” transactions, which, as Gary B. Born observes, “arguably connot[es] involvement by traders or merchants, as distinguished from consumers or employees” (International Commercial Arbitration, vol. I, International Arbitration Agreements (2nd ed. 2014), at p. 309). Further, one could draw a negative inference from the definition’s omission of “employment” relations (p. 309, fn. 454). It seems unlikely to us that the drafters of the Model Law would have included such a thorough list of included commercial relationships and not considered whether to include “employment”.
[28] Employment disputes, in sum, are not covered by the ICAA. The AA therefore governs.
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