John A. Terry

The appellant appealed the dismissal of its application to set aside an international arbitral award under NAFTA.

The arbitral tribunal had ordered the appellant to pay over $80 million in damages for revoking the respondents' gambling permit and shutting down their casinos without a valid regulatory reason.

The Court of Appeal dismissed the appeal, finding that the application judge applied the correct standard of review and properly concluded that there was no breach of procedural fairness in the tribunal's proceedings.

Mexico sought to set aside an international arbitral award rendered under NAFTA Chapter 11 in which an arbitral tribunal found Mexico liable for breaching the fair and equitable treatment standard and ordered Mexico to pay damages of approximately USD $80.9 million to American investors who operated casinos in Mexico.

Mexico alleged that the tribunal denied it a full and fair opportunity to present its defense by: (1) denying production of certain documents Mexico characterized as "key documents"; and (2) failing to address Mexico's argument regarding the availability of judicial review remedies in Mexican courts.

The court dismissed Mexico's application, finding that the arbitral proceedings were comprehensive and fair, that Mexico's document production denials were reasonable exercises of tribunal discretion, and that Mexico's failure to receive explicit reference to a minor argument did not constitute procedural unfairness.

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 appellants appealed the dismissal of their application to set aside a NAFTA Chapter 11 arbitration award.

They argued the tribunal exceeded its jurisdiction by misapplying the causation standard and that the award violated public policy.

The Court of Appeal dismissed the appeal, affirming the narrow scope of judicial review for arbitration awards under the Commercial Arbitration Code.

The court held that the tribunal acted within its jurisdiction and that the award did not conflict with Canadian public policy, which requires a very high standard for intervention.

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 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 Russian Federation appealed an interlocutory decision that denied its request to adduce fresh evidence on an application to set aside an arbitral tribunal's interim award on jurisdiction.

The Divisional Court allowed the appeal, holding that an application to challenge a tribunal's jurisdiction under Article 16 of the UNCITRAL Model Law is a hearing de novo, not a deferential review.

Consequently, the parties are entitled as of right to adduce evidence that was not before the arbitral tribunal.

The United Mexican States appealed a Superior Court of Justice decision that affirmed an arbitral tribunal's jurisdiction in a claim brought by Burr et al. under the North American Free Trade Agreement.

The arbitral tribunal had bifurcated proceedings into jurisdiction and merits phases, ruling it had jurisdiction over most claims.

Mexico's application to the Superior Court to set aside this jurisdictional ruling was dismissed.

Burr et al. moved to quash Mexico's appeal to the Court of Appeal.

The Court of Appeal granted the motion to quash, holding that the arbitral tribunal's ruling was a preliminary question of jurisdiction under Article 16(3) of the UNCITRAL Model Law on International Commercial Arbitration.

This article stipulates that a Superior Court's decision on such a preliminary jurisdictional ruling is 'subject to no appeal'.

The Court found that Mexico had not substantively pursued arguments under Article 34, which would permit an appeal, before the application judge.

The moving party, The Russian Federation, brought a motion for leave to appeal the decision of Penny J. The Divisional Court granted the motion for leave to appeal, with costs fixed at $7,500 payable in the discretion of the panel deciding the appeal.

The parties were directed to schedule the delivery of appeal materials and a case management teleconference.

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.

A case management endorsement addressing correspondence from counsel for the Concerned Citizens of North Stormont regarding a potential recusal motion based on an alleged reasonable apprehension of bias.

The court noted that no decision had been made to proceed with the motion and discussed the potential application of Rule 2.1 of the Rules of Civil Procedure.

The court left it to the parties to decide how to proceed, noting that ongoing settlement discussions could affect their decisions.

This case management endorsement addresses procedural issues arising from a request by Concerned Citizens of North Stormont to discuss a possible recusal motion.

The court clarifies that allegations of reasonable apprehension of bias should be raised at the earliest opportunity, with counsel's knowledge being relevant.

It also discusses the court's jurisdiction to issue a Rule 2.1 notice in such circumstances and acknowledges the role of ongoing settlement discussions.

Nation Rise sought judicial review of the Minister's decision to revoke its Renewable Energy Approval for a wind farm project.

The Minister had revoked the approval based on concerns about harm to bat maternity colonies, an issue not raised by the parties before the Environmental Review Tribunal or on appeal.

The Divisional Court quashed the Minister's decision, finding it unreasonable because the Minister lacked statutory authority to raise new issues on appeal, applied the wrong legal test by using a precautionary approach, and misapprehended the evidence.

The Court also found the Minister breached procedural fairness by failing to give notice of the new issue and denying the parties an opportunity to make submissions on remedy.

The ERT's approval of the project was reinstated.

The applicants sought judicial review of a decision by the Minister of the Environment revoking their authority for a wind farm project.

Three procedural motions were brought: CanWEA sought leave to intervene as a friend of the court, the Landowners sought leave to intervene as parties, and the respondent moved to strike fresh evidence filed by the applicants.

The court granted CanWEA leave to intervene, denied the Landowners leave to intervene without prejudice to their right to bring a separate application, and adjourned the motion to strike evidence to the panel hearing the underlying application.

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 Environmental Review Tribunal issued a procedural order adjourning the hearing regarding the Renewable Energy Approval for the Nation Rise Wind Farm on its own initiative for 44 days.

The Tribunal directed the parties to provide written closing submissions on health and wildlife issues according to the previously established schedule, and to propose a revised schedule for the completion of the hearing of groundwater evidence.