An Arguable Case May Be All You Need to Go to Arbitration in Ontario

In the recent Ontario Court of Appeal decision in Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited, 2023 ONCA 260, the Court addressed the question of what standard of proof a party would need to meet in order to establish that an agreement to arbitrate exists, such that a stay of a court proceeding should be granted and the dispute referred to arbitration under Section 9 of Ontario's International Commercial Arbitration Act. The Court found that the applicable standard of proof is that of arguable case, which is lower than the ordinary balance of probabilities standard, consistent with the prevailing view in Ontario that deference should be given to agreements to arbitrate and the jurisdiction of arbitral tribunals to determine their own jurisdiction.

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