John Terry

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 applicants sought to set aside a NAFTA Chapter 11 arbitral tribunal's damages award, arguing the tribunal exceeded its jurisdiction, breached procedural fairness, and rendered an award contrary to Canadian public policy.

The tribunal had previously found Canada breached its NAFTA obligations regarding an environmental assessment for a proposed quarry, but in the damages phase, awarded only $7 million USD for the lost opportunity of a fair assessment rather than the $440 million claimed for lost profits.

The Superior Court of Justice dismissed the application, finding the tribunal correctly applied the international law standard of proof, did not breach natural justice in its procedural rulings regarding expert reports, and rendered a decision that was not contrary to public policy.

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.

The United Mexican States applied to set aside a partial arbitral award on jurisdiction in a NAFTA Chapter 11 investor-state dispute.

The applicant argued the arbitral tribunal lacked jurisdiction because certain claimants failed to provide a timely notice of intent under Article 1119 and failed to provide proper consent under Article 1121.

The Superior Court of Justice dismissed the application, finding the tribunal was correct in concluding that the procedural defects related to admissibility rather than jurisdiction, and that the applicant's consent to arbitrate was not conditioned on strict compliance with Article 1119.

The court also found no jurisdictional error in the tribunal's treatment of submissions from the USA and Canada.

The appellant, a federally-regulated Crown corporation, appealed a Federal Court of Appeal decision reinstating a Health and Safety Officer's direction that the employer had contravened s. 125(1)(z.12) of the Canada Labour Code by failing to ensure that workplace safety inspections covered letter carrier routes and points of call beyond the physical depot building.

The appeals officer had concluded that the statutory inspection obligation applied only to workplaces the employer physically controls, and the Federal Court upheld that decision.

The majority of the Supreme Court applied the Vavilov framework for reasonableness review and held that the appeals officer's interpretation — confining the inspection duty to employer-controlled premises — was reasonable, internally coherent, and defensible in light of the text, context and purpose of the provision.

The appeal was allowed and the appeals officer's order was restored.

The applicant sought to set aside an arbitral tribunal's interim award on jurisdiction under Articles 16 and 34 of the UNCITRAL Model Law.

In support of its application, the applicant filed new expert evidence that was not before the arbitral tribunal.

A previous judge had ruled that the new evidence was admissible as of right.

The hearing judge reconsidered this interlocutory ruling and held that he had the authority to do so.

The court concluded that fresh evidence in an application to set aside an arbitral tribunal's award on jurisdiction under the Model Law may not be introduced as of right.

Instead, a party must obtain leave by satisfying the test for fresh evidence established in R. v. Palmer.

The applicant, The Russia Federation, brought a motion to disqualify the respondent's expert witness on Russian law, arguing bias and lack of qualifications.

The expert had previously provided evidence for related entities in similar claims against the applicant.

The court applied the White Burgess framework and found that the expert's history did not demonstrate a lack of independence, nor did his lack of Russian legal credentials or fluency in Russian negate his demonstrated expertise.

The motion to strike the expert's evidence was dismissed, and the respondent's cross-motion to admit the reports was allowed.

The applicant sought to challenge an arbitral award, arguing the arbitrator exceeded his jurisdiction by misapplying French law to read a diligent management requirement into an Earn-Out Clause, despite an Entire Agreement Clause.

The applicant also alleged a denial of natural justice due to the arbitrator's refusal to allow a sur-sur-reply.

The Superior Court of Justice dismissed the challenge, finding the arbitrator's interpretation was an unreviewable issue of mixed fact and law, not a true jurisdictional error.

The court also held the arbitrator's procedural ruling was a reasonable exercise of discretion that did not deny the applicant a fair hearing.

The respondent's parallel application to recognize the award was granted.

The moving parties sought costs of $11,097.22 on a partial indemnity basis after successfully obtaining an adjournment.

The respondent opposed the costs, arguing they should be assessed later or denied due to alleged delays.

The court found the motion was entirely avoidable and necessitated by the respondent's unreasonable refusal to consent to the adjournment.

Applying the principles of proportionality and reasonableness, the court fixed costs at $6,000 inclusive of disbursements and HST.

The applicant, the Attorney General of Canada, sought to set aside a NAFTA arbitral award that found Canada liable for breaching the prohibition on performance requirements under Article 1106.

Canada argued that the tribunal exceeded its jurisdiction by applying the wrong criteria to determine whether the impugned guidelines fell within Canada's reservation for subordinate measures under Article 1108.

The Superior Court of Justice dismissed the application, holding that the tribunal's interpretation of the NAFTA reservation provisions was a question of merits, not a true question of jurisdiction under Article 34(2)(a)(iii) of the Commercial Arbitration Code.