aside and enforcement proceedings did not relate to a computational, clerical or
typographical error in the award, nor was it a request to make an additional award
as to claims presented in the arbitral proceedings but omitted from the award.
That stated intention was based on events that took place after the award was
made. Article 33 did not apply in those circumstances.
The two post-award statements from the arbitrator on which the application
judge relied were a letter stating that the parties could contact the rabbinical court
clerk if they had “any other claims that the parties wish to be resolved” and a letter purporting to stay the award. The application judge erred in law by conflating
two distinct issues: first, whether the award was “binding” for purposes of recognition or enforcement pursuant to the Model Law; and second, whether the arbitrator had jurisdiction under the arbitration agreement to accept new claims from
a party following the issuance of the award. The application judge seemed to reason that if a party approached the arbitrator with a request to consider a new issue
some three years after the award had issued, the award was not binding for the
purposes of the Model Law. That approach ignored the operation of art. 32 of the
Model Law, which states that “arbitral proceedings are terminated by the final
award”. On its face, the award in this case was framed as a final award. As the
applicant’s set aside proceeding under art. 34 was at an end and the respondent’s
request for post-award costs did not fall within the categories of matters covered
by art. 33, the award was binding for the purposes of arts. 35 and 36 of the Model
Law and should be recognized and enforced. The potential jurisdiction of the arbitrator to entertain a new issue about post-award events did not affect the binding
nature of the award.
Relais Nordik Inc. v. Secunda Marine Services Ltd., [1990] F.C.J. No. 349, 1990
CarswellNat 1320 (T.D.); Yugraneft Corp. v. Rexx Management Corp., [2010] 1 S.C.R.
649, [2010] S.C.J. No. 19, 2010 SCC 19, 401 N.R. 341, EYB 2010-174202, 2010EXP-
1696, J.E. 2010-926, 318 D.L.R. (4th) 257, 68 B.L.R. (4th) 1, 22 Alta. L.R. (5th) 166,
84 C.P.C. (6th) 201, [2010] 6 W. W.R. 387, 482 A.R. 1, 188 A.C. W.S. (3d) 330, consd
Other cases referred to
6524443 Canada Inc. v. Toronto (City), [2017] O.J. No. 3045, 2017 ONCA 486,
415 D.L.R. (4th) 475, 279 A.C. W.S. (3d) 683; Corporacion Transnacional de Inversiones S.A. de C.V. v. STET International S.p.A. (2000), 49 O.R. (3d) 414, [2000]
O.J. No. 3408, 136 O.A.C. 113, 99 A.C. W.S. (3d) 537 (C.A.), affg (1999), 45 O.R. (3d)
183, [1999] O.J. No. 3573, 104 O.T.C. 1, 91 A.C.W.S. (3d) 520 (S.C.J.) [Leave to
appeal to S.C.C. refused [2001] 1 S.C.R. xi, [2000] S.C.C.A. No. 581]; Dalimpex Ltd.
v. Janicki (2003), 64 O.R. (3d) 737, [2003] O.J. No. 2094, 228 D.L.R. (4th) 179,
172 O.A.C. 312, 35 B.L.R. (3d) 41, 35 C.P.C. (5th) 55, 123 A.C. W.S. (3d) 217 (C.A.);
Diag Human SE v. Czech Republic, [2014] EWHC 1639, [2014] 1 C.L.C. 750
(Comm. Ct.); Dowans Holdings SA v. Tanzania Electric Supply Co., [2011] EWHC
1957 (Comm. Ct.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31,
2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W. W.R. 1, J.E. 2002-617,
219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991;
Inter-Arab Investment Guarantee Corp. v. Banque Arabe et Internationale
d’Investissements (1999), XXIV Y.B. Comm. Arb. 603 (Belgian Cour de Cassation);
Popack v. Lipszyc (2016), 129 O.R. (3d) 321, [2016] O.J. No. 857, 2016 ONCA 135,
396 D.L.R. (4th) 57, 348 O.A.C. 341, 262 A.C.W.S. (3d) 841, affg [2015] O.J.
No. 2790, 2015 ONSC 3460 (S.C.J.); Sattva Capital Corp. v. Creston Moly Corp.,
[2014] 2 S.C.R. 633, [2014] S.C.J. No. 53, 2014 SCC 53, 2014EXP-2369, J.E. 2014-
1345, 373 D.L.R. (4th) 393, [2014] 9 W. W.R. 427, 59 B.C.L.R. (5th) 1, 461 N.R. 335,
25 B.L.R. (5th) 1, 358 B.C.A.C. 1, 614 W.A.C. 1, 242 A.C.W.S. (3d) 266; Trade
Finance Solutions Inc. v. Equinox Global Ltd., [2018] O.J. No. 113, 2018 ONCA 12,
16 C.P.C. (8th) 29, 420 D.L.R. (4th) 273, 16 C.P.C. (8th) 29, 287 A.C. W.S. (3d) 669;
