Executive Summary: Key Legal and Evidentiary Issues

• Central issue concerned whether the arbitrator had jurisdiction under the NHLPA Regulations and SPAC to decide disputes arising after the expiry of the player–agent contract and NHL contract.
• Interpretation and enforceability of a six-month contractual limitation period in the NHLPA Regulations, and whether it unlawfully contracted out of the two-year statutory limitation period.
• Application of s. 46(1)3 of the Arbitration Act, 1991, focusing on whether the award dealt with a dispute beyond the scope of the arbitration agreement.
• Reliance on s. 46(1)6 of the Arbitration Act, 1991, alleging procedural unfairness and unequal treatment, including the arbitrator’s use of NHLPA information about access to the Regulations.
• Evidentiary weight given to the NHLPA’s role, its Regulations, and the player’s “personal responsibility” to acquaint himself with the limitation provisions.
• Outcome turned on deference to the arbitrator’s findings that the dispute was arbitrable, the six-month limitation was valid, and there was no basis for relief from forfeiture or to set aside the award.

Background and parties
The case arises out of a dispute between professional hockey player Alex Formenton and his long-time agent, Wade Arnott, and Arnott’s agency, Newport Sports Management Inc. In June 2017, at age 17, Formenton was drafted to the NHL by the Ottawa Senators. Shortly thereafter, in August 2017, he entered into a Standard Player-Agent Contract (SPAC) with Arnott and Newport. The SPAC is a mandatory standard form required by the National Hockey League Players’ Association (NHLPA) Regulations Governing Agent Certification. These Regulations create a highly regulated “closed shop” environment in which the NHLPA acts as exclusive bargaining agent for NHL players, and all agents must be certified and bound by the Regulations. Players and agents alike are governed by those Regulations, including a mandatory arbitration process and an internal six-month limitation period for bringing grievances. In October 2017, Formenton signed his entry-level Standard Player Contract with the Ottawa Senators. Both that NHL contract and his SPAC were set to expire on July 12, 2022. Although the SPAC formally expired then, Arnott and Newport continued to represent him, including in dealings about his next potential NHL contract.

Facts leading to the dispute
As his initial contract with the Senators approached expiry, the club made a “Qualifying Offer” to Formenton on July 5, 2022. The offer window ran from July 13 to July 22, 2022. Formenton did not accept the Qualifying Offer. He later alleged that Arnott believed he could negotiate a more favourable contract with the Senators and that this advice and conduct led to the Qualifying Offer expiring without a new deal. Subsequent negotiations failed. No other NHL team signed him, and he has not played in the NHL since 2022, instead continuing his career in European professional hockey. On June 28, 2024, nearly two years after the Qualifying Offer expired, Formenton served a Notice of Arbitration in accordance with the SPAC and the NHLPA Regulations. He asserted claims against Arnott and Newport for breach of contract, breach of fiduciary duty, and negligence tied both to the failure to accept the Qualifying Offer by July 22, 2022, and to their conduct after that date. The respondents raised as a threshold defence the six-month contractual limitation period contained in the Regulations, arguing that all of his claims were time-barred. An arbitrator was appointed on August 2, 2024, and the parties agreed to argue the limitation issue as a preliminary question. Before that limitation hearing occurred, Formenton also commenced a parallel civil proceeding in the Ontario Superior Court in September 2024, advancing essentially the same allegations against Arnott and Newport in court.

The arbitration award
The limitation hearing took place on November 13, 2024. In an award issued on January 13, 2025, the arbitrator dismissed all of Formenton’s claims as out of time. The arbitrator interpreted the NHLPA Regulations as providing that “any and all disputes” between a player and an agent arising from the interpretation, application, or enforcement of the Regulations and the resulting agent–player agreements must be resolved by arbitration and are subject to the six-month limitation period. He treated the SPAC and the Regulations as an integrated contractual framework, not as separate and independent documents. On that basis, he concluded his jurisdiction extended to disputes about the agent’s conduct both before and after the expiry of the SPAC and the player’s NHL contract, because the underlying relationship remained governed by the NHLPA’s regulatory regime so long as Formenton was an eligible NHL player. The arbitrator also rejected the argument that the six-month period was an unlawful contracting-out of the two-year statutory limitation in Ontario’s Limitations Act, 2002. Applying the Court of Appeal’s Boyce test, he found that the six-month period was clearly worded, its scope was explicit (covering all disputes about the Regulations and related contracts), and it effectively displaced other limitation periods in that arbitral forum. He further declined to exercise any discretion to relieve against forfeiture of rights because, in his view, there was no evidence of fraud, bad faith, or marginal technical non-compliance that would justify overriding a clearly drafted limitation provision.

The court application and parallel civil action
In response to the adverse arbitration award, Formenton launched an application in the Ontario Superior Court (this proceeding) on February 10, 2025, seeking to set aside the award under s. 46(1) of the Arbitration Act, 1991. He also served his Statement of Claim in the previously filed civil action a few days later, in February 2025, again pursuing the same substantive complaints against Arnott and Newport. The application advanced two primary grounds. First, under s. 46(1)3, he argued the arbitrator lacked jurisdiction to deal with conduct after July 12, 2022, because the SPAC and his NHL contract had expired on that date and, in his view, the arbitration agreement no longer covered those disputes. Second, under s. 46(1)6, he contended that he had not been treated equally and fairly in the arbitration, particularly because he had not been provided with the Regulations by his agent, did not know about the six-month limitation period until 2024, and because the arbitrator relied on an NHLPA memorandum that had not been introduced through sworn evidence.

Jurisdiction and the scope of the arbitration agreement
Justice Schabas rejected the jurisdictional challenge under s. 46(1)3. The court began by emphasizing the labour-relations context of the NHL, with the NHLPA as exclusive bargaining agent and the Regulations as the central framework for the player–agent relationship. Players eligible to play in the NHL are subject to the NHLPA rules whether or not they are currently under contract with a club. The SPAC is expressly made “pursuant to and in accordance with” the Regulations, which together form a single, integrated agreement governing agent certification and player–agent relations. The judge also applied s. 17(2) of the Arbitration Act, 1991, which provides that an arbitration clause embedded in a broader agreement is to be treated as an independent agreement that can survive even if the main agreement expires or is invalid. In line with Supreme Court jurisprudence on protecting arbitration clauses, the court held that the expiry of the SPAC did not terminate the arbitration agreement within the NHLPA regime. Since Formenton’s allegations arose from Arnott’s representation in seeking a new NHL contract—representation that could only lawfully be undertaken by a certified agent acting under the Regulations—the dispute remained squarely within the closed-shop labour framework. The NHLPA Regulations therefore continued to govern the dispute, including the requirement that “any and all disputes” between players and agents proceed to arbitration rather than court. The judge also pointed out that under the Regulations, arbitrators have “exclusive authority” to determine the arbitrability of disputes. The parties had specifically asked the arbitrator to decide whether he had jurisdiction, and he had answered that mandated question. On the reasoning of Alectra Utilities, that meant the arbitrator was operating within, not beyond, the bounds of the arbitration agreement. As such, there was no basis to set aside the award for jurisdictional excess.

Validity of the six-month limitation period
Turning to the limitation issue, the court addressed Formenton’s argument that the six-month period amounted to an improper contracting-out of the two-year limitation period under the Limitations Act, 2002. Applying the Boyce framework, Justice Schabas found that the arbitrator’s analysis was both reasonable and correct. The Regulations clearly stated that a player grievance must be filed within six months; they expressly tied the limitation period to “any and all disputes” arising from the interpretation, application, or enforcement of the Regulations; and there were no competing limitation provisions in the internal regime. Following Court of Appeal guidance in 407 ETR, the court held that an explicit reference to the exclusion of the two-year period is not required so long as the contractual term clearly establishes its own limitation scheme. The court also rejected the contention that incorporation by reference somehow invalidated the six-month term. The SPAC explicitly incorporated the NHLPA Regulations, stating that the agreement was entered into in accordance with them and subject to amendments. Together, the SPAC and the Regulations formed the operative agreement between player and agent. As long as the limitation provision itself satisfied the Boyce criteria, the fact that it appeared in a separate yet incorporated document was of no consequence.

Alleged unfairness and procedural treatment of the player
On the fairness ground under s. 46(1)6, Formenton argued that he was unaware of the limitation period until 2024 because he had never been provided with the Regulations, and that it was procedurally unfair for the arbitrator to rely on unsworn NHLPA materials suggesting that players and agents had access to the Regulations via the NHLPA’s online portal. He also maintained that the arbitrator should have granted him equitable relief from forfeiture. Justice Schabas held that these arguments did not meet the high threshold for setting aside an award on the basis that a party was “not treated equally and fairly.” The SPAC and Regulations explicitly allowed the NHLPA to participate in any arbitration, to provide information relevant to the dispute, and to offer interpretive guidance on the Regulations and the collective agreement. Given the NHLPA’s status as exclusive collective bargaining agent, the Regulations directed that its interpretation be granted deference by arbitrators and, by extension, in subsequent proceedings. In this context, the arbitrator’s reliance on NHLPA information about the accessibility of the Regulations was not improper. Moreover, the court noted that the arbitrator did not base his decision solely on those statements. He emphasised that a 22-year-old player involved in active contract negotiations had a personal responsibility to inform himself about the applicable regulatory framework, particularly the arbitration and limitation provisions, rather than waiting approximately 18 months to initiate a grievance. On relief from forfeiture, the arbitrator had taken a deliberately narrow approach, focusing on whether there were major violations such as bad faith, fraud, or merely technical non-compliance. Finding none of those circumstances present, he declined to override the limitation clause. The court accepted that approach as consistent with the principle that discoverability relates to knowledge of facts rather than the content of the law and ruled there was no denial of equal or fair treatment in how the arbitration was conducted.

Disposition and costs
Having rejected both the jurisdictional and fairness grounds, Justice Schabas concluded that there was no basis under s. 46(1) of the Arbitration Act, 1991 to set aside the arbitrator’s award. The application was dismissed, leaving the arbitral decision intact and binding on Formenton. Because the Superior Court civil action sought the same substantive relief as the arbitration and application, the court also dismissed that action at the request of Arnott and Newport. On costs, the court observed that the parties’ bills of costs were broadly similar and that the work was primarily legal, focused on a substantial record from the arbitration. Taking into account proportionality, the indemnity principle, and access to justice considerations under the Rules of Civil Procedure, the judge ordered that costs be paid by the applicant to the respondents Arnott and Newport. The successful parties in this proceeding were therefore Arnott and Newport, who not only preserved the dismissal of the claims against them but also obtained a monetary order of CAD $25,000 in costs (inclusive of HST and disbursements) in their favour, while no damages or other monetary awards were granted to Formenton.