Arbitration and Summary Judgment – Is Summary Judgment Available in Arbitration Matters?

Josef FinkelAppeals, Arbitration, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration0 Comments

In the arbitration preceding the Ontario Superior Court of Justice (“OSCJ”) decision, Optiva Inc. v, Tbaytel, 2021 ONSC 2929 (CanLII), the respondent successfully brought a motion for summary judgment before a sole arbitrator.

The applicant then appealed the arbitrator’s award to the OSCJ, arguing, among other things, that the arbitrator could not, absent consent of the applicant, proceed by way of summary judgment.

The OSCJ disagreed with the respondent’s position, instead affirming that the “arbitrator could elect to proceed by summary judgment absent the consent of [the applicant]”.

The court cited, as authority for its conclusion, section 20(1) of the Arbitration Act, which states:

  • 20 (1) The arbitral tribunal may determine the procedure to be followed in the arbitration, in accordance with this Act.

The OSCJ opined that “summary judgment should be available to the parties in an arbitration subject to the requirement” that the process:

  1. Allows the arbitrator to make the necessary findings of fact;
  2. Allows the arbitrator to apply the law to the facts; and
  3. Is a proportionate, more expeditious and less expensive means to achieve a just result.

As such, this decision confirms that parties to an arbitration may enjoy the potential benefits of the summary judgment process (i.e. efficiency, cost-savings, etc.) without having to bring their matter before the courts. This is of course subject to the language of the parties’ arbitration agreement, which is generally paramount, and to the arbitration rules that the parties have relied on.

At Gilbertson Davis LLP, our Commercial Arbitration and Commercial Litigation lawyers can assist you, your business, company, partnership or corporation in your dispute, whether you require a lawyer to represent you or an arbitrator to offer his/her services in an arbitration. Gilbertson Davis LLP lawyers have experience in proceedings involving Commercial Litigation, Civil LitigationBusiness TortsBusiness  LitigationArbitration and Mediation matters and can assist you in resolving your legal issues in a timely and cost-effective manner. Our mission is to provide creative, sensible, cost-effective, long-term resolutions to clients. Please contact Gilbertson Davis LLP to schedule a consultation.


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About the Author

Josef Finkel

Josef is a litigator with experience working on a broad range of civil and commercial litigation matters including defamation, domain name disputes, breach of contract, debtor and creditor litigation, corporate/commercial disputes, franchise disputes, partnership disputes, real estate litigation, fraud, construction law, landlord and tenant disputes, wrongful dismissals, and cross-border disputes such as recognition and enforcement of foreign judgments and arbitral awards, and recognition of foreign letters rogatory. He has appeared successfully at both the Superior Courts of Justice and the Small Claims Courts Bio | Contact

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