Jennifer Radford

The appellant brought a NAFTA Chapter 11 claim against Mexico, which was dismissed by a three-member arbitration tribunal.

The appellant later discovered that the Mexican-appointed arbitrator had communicated with Mexican officials during the arbitration regarding potential future appointments.

The application judge found a reasonable apprehension of bias but declined to set aside the award, reasoning that the other two arbitrators were impartial.

The Court of Appeal allowed the appeal and set aside the award, holding that a reasonable apprehension of bias concerning one member of a tribunal taints the entire panel and cannot be balanced away as a minor procedural error.

The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) brought a motion for leave to intervene as a friend of the court in an appeal concerning the test for procedural unfairness under the Model Law in international commercial arbitration.

The underlying appeal involved an arbitral claim by Vento Motorcycles Inc. against the United Mexican States under NAFTA, where Vento alleged denial of procedural fairness.

CIPPIC proposed an alternative "material" procedural fairness violation test.

The Court of Appeal dismissed CIPPIC's motion for leave to intervene, finding that CIPPIC did not sufficiently link its expertise to the issue, the case was a private dispute between sophisticated parties, and CIPPIC's proposed arguments risked expanding the scope of the appeal without providing a useful contribution.

The applicant, Vento Motorcycles, Inc., sought to set aside an arbitral award rendered by an ICSID tribunal, alleging two grounds: inability to present its case due to the tribunal's refusal to allow a witness to testify in response to impeachment evidence, and reasonable apprehension of bias by one of the arbitrators due to undisclosed offers of future appointments from the respondent.

The court dismissed the application, finding that Vento was able to present its case and that while a reasonable apprehension of bias existed for one arbitrator, it did not undermine the reliability of the unanimous award or produce real unfairness, especially given the collegial nature of the tribunal and the significant prejudice of redoing the arbitration.

The applicant, Joshua Dean Nelson, sought to set aside an arbitral award rendered under Chapter 11 of the North American Free Trade Agreement against the Government of the United Mexican States.

The application was brought under Article 34(2)(a)(ii) of the Model Law on International Commercial Arbitration, alleging denial of natural justice and procedural fairness.

Specifically, the applicant claimed the award was based on an unpleaded theory and that the tribunal ignored expert evidence regarding the existence of interconnection rights and the effect of Mexican regulatory decisions.

The court dismissed the application, finding that the tribunal's decision was based on issues that were pleaded, argued, and subject to cross-examination, and that the tribunal adequately considered the expert evidence, even if not explicitly naming the experts.

The respondent in an application to set aside an international arbitral award brought a motion to strike three affidavits filed by the applicant.

The court determined that the test for admitting fresh evidence on an application to set aside an international arbitral award on procedural fairness grounds is akin to the test applied on judicial review, which requires reasonable diligence, rather than the Palmer test for appeals.

Applying this test, the court struck two affidavits in their entirety because the evidence could have been raised before the arbitral tribunal.

The court also struck portions of a third affidavit that contained improper opinion evidence and speculation.

Following earlier rulings quashing garnishment notices issued against diplomatic bank accounts of a foreign state, the court determined the appropriate costs award.

The proceedings involved complex and novel issues of diplomatic immunity, state immunity, and international law relating to enforcement of a judgment against a foreign state.

Although the foreign state was the successful party, the court declined to award substantial indemnity costs due to the absence of improper litigation conduct and the novelty of the issues.

A third‑party bank that participated extensively in the litigation was found not to be a necessary party and was denied costs.

The creditor was ordered to pay the foreign state partial indemnity costs fixed at $100,000 inclusive of disbursements and HST.

The appellant sought to enforce an ICC arbitral award against the State of Libya by garnishing its embassy bank accounts in Canada.

Libya moved to quash the garnishments, claiming diplomatic immunity, which the motion judge granted.

The appellant appealed, but Libya had a pending motion in the Superior Court to set aside the underlying recognition and enforcement order.

The Court of Appeal adjourned the appeal sine die on the basis of prematurity, finding that the pending motion could render the appeal moot.

The Court also continued a stay order freezing the bank accounts, finding a real risk that the funds would be removed if the stay was lifted.

A judgment creditor sought to enforce an international arbitration award by garnishing bank accounts held by a foreign state’s embassy in Canada.

The foreign state moved to quash the notices of garnishment, asserting diplomatic immunity over the embassy accounts.

The court held that assurances from the ambassador created a strong presumption that the accounts were used for diplomatic purposes under customary international law and the Vienna Convention on Diplomatic Relations.

The creditor’s evidence, including payments of litigation costs and scholarship funds to students, did not demonstrate non‑diplomatic or commercial use sufficient to rebut the presumption.

The garnishment notices were therefore quashed and further enforcement against the accounts was prohibited.

In garnishment proceedings to enforce an arbitral award against a foreign state, the moving party sought cross-examinations and broad document production relating to embassy bank accounts said to be immune from execution.

The court applied the previously established framework recognizing a strong but rebuttable presumption of diplomatic immunity once a competent authority provided due assurances that the accounts were used for sovereign or diplomatic purposes.

The court held that compelling the ambassador, the bank, or third parties to disclose records or submit to questioning would unduly interfere with the affairs of the diplomatic mission and was not justified on the evidentiary record.

The motion to strike the moving party’s affidavit was also dismissed.

All production and cross-examination requests were denied.

The applicant judgment creditor sought to enforce a foreign arbitral award by garnishing embassy-related bank accounts in Canada.

The court held that customary international law governs immunity over embassy bank accounts through a restrictive immunity framework requiring proof of diplomatic relations, assurances of diplomatic purpose, and an opportunity for the creditor to rebut immunity by proving a commercial or other non-diplomatic use.

A Foreign Relations Certificate from the Minister of Foreign Affairs was conclusive only as to the existence of diplomatic relations between the states.

It did not confer absolute immunity or bar further inquiry into whether the accounts fell within an exception.

The appellant appealed an order enforcing an international arbitration award, arguing it was denied procedural fairness when the application proceeded in its absence.

The appellant had previously terminated its solicitors' retainer and indicated an intent to follow different channels.

The Court of Appeal dismissed the appeal and the motion to adduce fresh evidence, finding no adequate record to support the procedural fairness claim.

The court noted that the appropriate procedure to raise the issue is a motion to set aside the order under Rule 38.11 in the Superior Court.