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May An Order Dismissing A Stay Motion Be Appealed?

In Canada, there has been a controversy about appeals from stay motion decisions in the context of arbitration clauses.  The issue is whether a decision of a motion judge denying the stay of an action, when the moving party relies on an arbitration agreement, may be appealed to the Court of Appeal. The controversy arises from a sub-section found in the Uniform Arbitration Act drafted by the Uniform Law Conference of Canada and adopted in many Canadian provinces.

In Hopkins v. Ventura Custom Homes Ltd., the Manitoba Court of Appeal has recently held that such a motion judge’s decision may be appealed if that decision is based upon the motion judge finding that arbitration agreement does not apply to the dispute. This decision is consistent with earlier decisions of the Courts of Appeal of New Brunswick, Ontario and Alberta. These decisions appear to now consistently hold that an appeal is not statutorily barred if the motion judge’s decision to deny the stay is based upon a determination that the arbi

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