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Alternative Dispute Resolution - Binding arbitration - Arbitrators and arbitration boards - Jurisdiction - Practice and procedure - Parties - Appeals and judicial review

Thursday, September 01, 2016 @ 8:00 PM  

Motion by the respondent, the Covanta Durham York Renewable Energy Limited Partnership (Covanta), to quash an appeal by Barton-Malow and others. Regional municipalities contracted with the respondent to build and operate an energy-from-waste infrastructure facility. The respondent subcontracted with the CPP appellants to provide construction services. The appellants in turn subcontracted with two other appellant subcontractors. The agreement between Covanta and CPP contained a binding arbitration provision which adopted the UNCITRAL Arbitration Rules and the Model Law on International Commercial Arbitration. The subcontracting agreements between CPP and the other appellants also included an arbitration clause. In April 2015, CPP issued a notice of arbitration to the respondent and brought a motion to add the other subcontractor appellants as parties. The arbitrator granted the motion. The respondent applied for review of the decision. The application judge concluded the arbitrator failed to satisfy himself that the subcontractor appellants were parties to the arbitration agreement. The ruling was set aside. CPP and its subcontractors appealed. Covanta moved to quash the appeal.

HELD: Motion allowed. The issue of whether a person was a party to an arbitration result was a question of jurisdiction. Under s. 17(9) of the Arbitration Act and Article 16(3) of the UNCITRAL Model Law on International Commercial Arbitration, no appeal lay from a court decision on a question of an arbitrator’s jurisdiction. The decision regarding the appellant subcontractors clearly went to jurisdiction and could not be regarded as merely procedural or interlocutory. The appeal was accordingly quashed.