2024 ONCA 480 Decision:

• Vento Motorcycles filed an arbitral claim under NAFTA against Mexico, alleging that Mexico’s denial of preferential import tariffs caused substantial business losses.
• The arbitral tribunal dismissed Vento’s claim, and the Ontario Superior Court declined to set aside the award.
• Vento appealed, arguing it was denied procedural fairness because one of its witnesses was not allowed to submit additional evidence.
• The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) sought to intervene on procedural fairness but was denied.
• The appeal was scheduled for November 4, 2024. No monetary award was granted?.

2025 ONCA 82 Decision:

• After the arbitration, Vento discovered that tribunal member Hugo Perezcano had communications with Mexican officials, including Mexico’s lead arbitration counsel, regarding potential appointments to arbitration rosters.
• The application judge found these undisclosed communications created a reasonable apprehension of bias but refused to set aside the award, citing no real unfairness or practical injustice.
• The Ontario Court of Appeal ruled that the reasonable apprehension of bias required setting aside the tribunal’s award, emphasizing that bias of one arbitrator tainted the entire tribunal.
• The appeal was allowed, the arbitral award was set aside, and Vento was awarded $60,000 in appeal costs and $100,000 in application costs?.

Outcome:

• The first decision upheld the arbitral award dismissing Vento’s claim.
• The second decision overturned it due to bias, setting aside the award and awarding costs to Vento.