In La Française IC 2 v. Wires ("La Francaise"), the Court of Appeal for Ontario has confirmed that the test for resisting enforcement of an international arbitral award is a stringent one. In allowing an application for enforcement, the Court affirmed a number of important considerations, including the timeliness of arguments and exhaustion of appeal routes, the prioritization of substance over form, as well as the role of abuse of process in order to prevent the re-litigation of issues already subject to arbitration.1
Below, we consider the case and its takeaways.
Background
After entering into a bespoke funding agreement (the "Agreement") with the respondent (Mr. Wires), the appellant (La Francaise IC 2) commenced an arbitration seated in England, and administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the "SCC"), in order to obtain payment under the Agreement.2
The Agreement identified La Francaise by corporate registration number B148892. However, during the arbitration, La Francaise used a shortened name ("IC2 Fund") and a different corporate registration number, B205456. During the arbitration, the arbitrator granted La Francaise security for costs against Wires.3 The arbitrator's award, however, referred to La Francaise using registration number B148892, which, at the time of the arbitration, referred to a corporate entity that been liquidated and placed into bankruptcy. In any event, Wires failed to pay the required security for costs.
Wires then challenged the arbitrator's appointment before the SCC, alleging a reasonable apprehension of bias. However, the SCC dismissed this challenge, finding the challenge to be time-barred and unsubstantiated on the merits.
Following these events, Wires attempted to discontinue the arbitration, at which point La Francaise sought a dismissal of the arbitration and requested costs. The arbitrator granted the relief sought.4
La Francaise then applied for recognition and enforcement of the award in Ontario. In granting the application, the Superior Court of Justice affirmed La Francaise's standing to bring the enforcement application, rejecting Wires argument that La Francaise lacked standing given due to the misnaming error regarding the bankrupt entity identified above.5 Moreover, the Court concluded that Wires' challenge to the arbitrator's appointment based on alleged bias was an abuse of process, as it had already been dismissed by the SCC, and this decision was not appealed by Wires at any time prior to the proceedings before the Superior Court.6 Consequently, the Court granted the applicant's motion to amend the title of proceedings (to address the issue regarding the improperly named corporate entity), dismissed the respondent's motion to dismiss or stay the application, and confirmed the enforceability of the award.7
On appeal to the Court of Appeal for Ontario, Wires argued that the judgment recognizing and enforcing the arbitration award should be set aside and remitted for a rehearing before the Superior Court. In advancing such a position, Wires relied on the following three main arguments:
- first, that the application judge erred in failing to address the argument that the tribunal was improperly formed due to a lack of independence and impartiality. Additionally, Wires argued that the application judge erred in finding that the relitigating of this issue constituted an abuse of process;8
- second, that the application judge erred by finding that La Francaise had standing to bring the application, and that the application judge lacked jurisdiction to rectify the misidentification of La Francaise in the award;9 and
- third, the application judge erred by upholding the arbitrator's costs award, which encompassed costs settled by both parties.10
The Court of Appeal's Decision
With respect to the first ground of appeal, the Court of Appeal disagreed that the application judge had erred by not allowing Wires to raise issues regarding the propriety of the tribunal. Instead, the Court concurred with the application judge's view that permitting such an argument to be advanced would have constituted an abuse of process.11 In that regard, the Court emphasized the broad and flexible nature of abuse of process; it is not restricted to preventing the re-litigation of issues or addressing issues that could have been raised in previous proceedings, but is more generally intended to prevent unfair use of court procedures that could bring the administration of justice into disrepute.12
Moreover, the Court emphasized that Wires' challenge of the arbitrator seemed to have stemmed from the arbitrator's unfavourable order of security for costs, rather than any real concern with the arbitrator. Further, the Court emphasized that Wires' allegations were introduced "out of time and were not well-founded"13, confirming that this argument failed both procedurally and substantively.
In addition, the Court observed that since this challenge was made early in the arbitration process, any valid concerns could have been addressed, and a new arbitrator appointed if necessary, through an appeal of the SCC's decision to the English courts. However, since Wires failed to take any of the steps open to it to continue his challenge of the arbitrator's jurisdiction, the Court found that Wires was not now able to challenge jurisdiction. These circumstances, combined with the SCC's determination that the challenge lacked merit, supported the application judge's decision that relitigating the issue would constitute an overall abuse of process.14
Regarding the second point of appeal, the Court disagreed with Wires' assertion that the application judge had erred in identifying La Francaise as the proper party to the arbitration. The Court confirmed that the application judge's decision had been based on the evidence at hand, including Wires' identification of La Francaise in the arbitration request. There was no error in the application judge's conclusion that any discrepancies in naming had been inconsequential. Thus, La Francaise had standing to bring the application, and the application judge had the jurisdiction to ascertain the appropriate parties to the award and to order its recognition and enforcement accordingly.15
Lastly, the Court found no fault with the application judge's recognition and enforcement of costs in the arbitration award. The arbitrator had differentiated between settled costs of La Francaise's counterclaim and the costs of the arbitration, ensuring that there was no over-compensation.
As a result of the above, the Court dismissed the appeal.16
Commentary
While the result of La Francaise is perhaps unsurprising, the Court's analysis nevertheless offers several insights.
Firstly, La Française underscores the importance of exhausting all available appeal rights in the seat of the arbitration before raising a similar challenge in an enforcement jurisdiction. While appeal rights are uncommon in the international arbitration context (given the widespread application of the Model Law), readers will nevertheless appreciate that England is a very popular seat for international arbitration and therefore makes this issue particularly relevant where an England-seated award is in turn the subject of enforcement proceedings in Ontario (and Canada more generally). Parties would do well to consider all possible appeal rights early, and track such rights if necessary, during the course of an arbitration.
Although the exhaustion of appeal rights in this case would not necessarily have allowed Wires to overcome the Court's other objections to the appeal, it would arguably have removed at least one obstacle.
On the other hand, however, an unsuccessful appeal in England would arguably have strengthened La Francaise's position insofar as the bias allegations would have dismissed twice. On the facts of this case, the point may have been moot insofar as both England and Canada rely upon the IBA's Guidelines on Conflict of Interest, such that the general framework for bias in each country is quite similar; on the other hand, however – and as we have written elsewhere – there is case law in Ontario that arguably establishes a lower bar for a finding of reasonable apprehension of bias.
In that regard, the discrepancy (if any) between English and Ontario law regarding reasonable apprehension of bias raises the interesting question of whether the Court's reliance on abuse of process (as a means of preventing re-litigation) was grounded primarily in (1) the SCC's conclusion that Wires' allegations were unmeritorious, or (2) the fact that Wires' did not appeal this conclusion under the Arbitration Act, 1996. The Court's analysis does not make this entirely clear, but in our view, the latter basis is somewhat more persuasive given that the SCC's decision was presumably grounded in English law (as a result of which the argument could be made that re-considering an issue under a different legal standard would not be an abuse of process).
Finally, with respect to the issue of La Francaise's misnaming in the arbitration award and subsequent judicial proceedings, the Court has confirmed that there is a high bar for relying upon this procedural issue as a basis for resisting enforcement of an award. La Française confirms that a minor misnaming – particularly when it does not cause confusion or prejudice to the parties involved – is unlikely to constitute a valid basis to resist enforcement. However, where the error causes confusion or prejudice, such an error may not be correctable by a court. On balance, it appears that courts can (and will) rectify procedural errors such as misnaming when they do not compromise the fairness or clarity of the arbitration process, ensuring the integrity and enforceability of arbitration awards.
We will continue to monitor the decisions of the courts as they grapple with the issue of challenges to arbitral jurisdiction.
Footnotes
1 La Française IC 2 v. Wires, 2024 ONCA 171 [La Française].
2 Ibid at para 2.
3 IC2 Fund v Wires, 2023 ONSC 3879 [IC2].
4 La Française, supra note 1 at paras 2-3.
5 IC2, supra note 5 at paras 55-61.
6 Ibid at para 91.
7 Ibid at para 93.
8 La Française, supra note 1 at para 5.
9 Ibid.
10 Ibid.
11 Ibid at para 7.
12 Ibid at para 8.
13 Ibid at para 9.
14 Ibid at para 9.
15 Ibid at para 10.
16 Ibid at para 11.
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