Executive Summary: Key Legal and Evidentiary Issues

• Central question concerns whether Bombardier Inc.’s action for breach of a 2017 share purchase agreement should be stayed in favor of arbitration under the International Commercial Arbitration Act, 2017.

• The nature of the stay order—specifically, whether it is final or interlocutory—determines the appropriate appellate route.

• The parties’ agreement to submit disputes to arbitration is fundamental to the stay order.

• Authority of the arbitral tribunal to rule on its own jurisdiction is a key issue.

• The impact of the motion judge’s and parties’ characterization of the stay order on appeal rights is disputed.

• The court addresses entitlement to costs and specifies the amount awarded to the successful party.

Background and facts
Bombardier Inc. appealed an order staying its action against Alstom Rail Sweden AB for breach of a provision in a 2017 share purchase agreement. Alstom Rail Sweden AB, as the moving party, sought to quash the appeal on the basis that the stay order was temporary and could only be appealed to the Divisional Court with leave. The stay was granted because the dispute arguably concerned a matter the parties agreed to submit to arbitration, pursuant to section 9 of the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (ICAA), to allow the arbitral tribunal to rule on its own jurisdiction.

Procedural history and legal issues
The motion judge granted a stay of the action until further order of the court. Alstom Rail Sweden AB argued that the order was interlocutory because the arbitral tribunal might decline jurisdiction, which could result in the stay being lifted. The appellate court considered whether the stay order was final or interlocutory, as this would determine the proper appellate route.

Discussion of policy terms and clauses
The decision referenced the arbitration provision in the 2017 share purchase agreement and section 9 of the ICAA. The court cited Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited, 2023 ONCA 260, to support the conclusion that an order granting a stay under section 9 of the ICAA is generally final for purposes of appeal, as it determines that the arbitral tribunal will decide the jurisdictional issue. The possibility that the stay could be lifted if the arbitral tribunal declines jurisdiction does not change its final nature for appeal purposes.

Outcome and costs
The Court of Appeal dismissed the motion to quash the appeal, holding that the appeal was appropriately before the court. The court ordered that the responding party, Bombardier Inc., is entitled to their costs in the amount of $25,000 inclusive of disbursements and HST. No damages were awarded, as the decision was limited to procedural and jurisdictional matters.