ADR/Mediation Services

The parties' Agreement to Arbitrate provided for an appeal directly to the Court of Appeal on a question of law.

The appellant filed the appeal in the Court of Appeal, but the court held that it lacked jurisdiction, as parties cannot confer jurisdiction by agreement and the Arbitration Act does not provide for direct appeals to the Court of Appeal.

The court declined to transfer the matter under s. 110 of the Courts of Justice Act, leaving the appellant to pursue remedies in the Superior Court.

The applicant appealed a family law arbitration award that ordered him to pay retroactive and ongoing spousal support, child support, and an equalization payment.

The applicant argued the arbitrator made palpable and overriding errors in imputing income, drawing adverse inferences regarding his assets, and failing to apply the Spousal Support Advisory Guidelines.

The Superior Court of Justice dismissed the appeal, finding that the arbitrator's reasons were adequate, the findings of fact were supported by the evidence, and there was no error in principle or reasonable apprehension of bias.

Two condominium corporations disputed responsibility for utility costs associated with shared cooling towers located on the respondent’s property but servicing the applicant’s building.

The applicant sought a stay of a Superior Court action commenced by the respondent and requested that the dispute proceed through mediation and arbitration pursuant to a Shared Facilities Agreement and s.132 of the Condominium Act, 1998.

The court held that the agreement and statute required disputes between condominium corporations concerning shared facilities to proceed through mediation and arbitration.

The respondent’s argument that the matter should remain in court due to an unjust enrichment claim was rejected, as arbitral tribunals may grant equitable remedies under the Arbitration Act, 1991.

The court stayed the Toronto action and directed the parties to follow the contractual and statutory dispute resolution process.

A preliminary issue arose on a summary judgment motion regarding whether a party could reference the opinion and recommendations of an evaluator retained by the parties during a dispute resolution process connected to a construction project.

The moving party argued that the communications were protected by mediation confidentiality under the Rules of Civil Procedure.

The court held that regardless of the label applied to the process, the communications formed part of settlement discussions intended to resolve a litigious dispute and were therefore subject to settlement privilege.

The evaluator’s reports and recommendations, and any related documentation, were found to be privileged and inadmissible.

Portions of an affidavit referencing those materials were ordered struck.

Following a successful application compelling arbitration and appointment of an arbitrator, the court determined the appropriate costs award.

The moving parties sought substantial indemnity costs relying on a Rule 49 offer to settle.

The court held the offer lacked a meaningful element of compromise and therefore did not justify substantial indemnity costs under Rule 49.10.

Considering the complexity of the proceeding, the parties’ conduct, and the time reasonably required, the court reduced counsel’s claimed hours and awarded costs on a partial indemnity basis.

An insurer appealed an arbitrator’s ruling in a statutory accident benefits priority dispute under s. 268 of the Insurance Act and Ontario Regulation 283/95.

The arbitrator held that the respondent insurer was not an “insurer” for purposes of the scheme because there was no nexus between the accident victim and the respondent’s optional insurance policy offered through a rental car company.

The court applied the correctness standard of review and held the arbitrator erred by applying a remoteness analysis rather than the proper “arbitrariness” nexus test developed in the case law.

Even though the accident victim declined the optional policy, the connection through the rental vehicle and the insurer’s optional coverage was sufficient to establish a non-arbitrary nexus triggering the statutory scheme.

The arbitrator’s decision was set aside and the matter remitted for determination of the remaining priority dispute issues.

Two related applications arose from a commercial arbitration concerning a Liquidity Payment obligation under a financing arrangement between a dairy company and a pension fund.

The moving party sought to set aside a final arbitral award under s. 46(1) of the Arbitration Act, 1991, alleging breaches of procedural fairness and arguing the arbitrator’s contractual interpretation was unreasonable.

The court held the arbitration process was fair, the parties had adequate opportunity to present their cases, and the arbitrator’s interpretation of the Liquidity Payment Agreement was consistent with its plain language.

The application to set aside the award was dismissed.

The responding party’s application to enforce the arbitral award and supplementary costs award was granted, with interest fixed at 3% in accordance with the contract and applicable statutory rates.

The parties appealed and cross-appealed a Superior Court decision that varied an arbitrator's award regarding child and spousal support.

The Court of Appeal upheld the appeal judge's decision, finding that the arbitrator erred in his application of the D.B.S. factors for retroactive child support, misunderstood the tax implications of retroactive lump sum spousal support, and failed to properly analyze whether post-separation income increases were related to the marriage.

Both appeals were dismissed.

In a family law proceeding involving competing motions to change a prior consent order, the applicant brought a motion to strike portions of the respondent’s motion to change materials that disclosed information from a parenting coordination process.

Although the original court order contemplated an open parenting coordination process, the parties subsequently agreed with the parenting coordinator to conduct the process on a closed basis.

The respondent argued that disclosure was permissible because the closed process conflicted with the prior order.

The court held that parenting coordination derives its authority from the parties’ consent and constitutes a form of secondary arbitration under the Family Law Act and the Arbitration Act.

Because the parties consented to a closed process, the respondent could not unilaterally disclose information arising from it, and the impugned portions of the materials were struck with costs.

The appellant appealed an arbitrator's decision that used final offer selection to determine child support, spousal support, and equalization of net family property.

The appellant argued that the process was contrary to law because it was ill-suited for multiple issues, lacked sworn testimony and cross-examination, and the arbitrator's reasons were inadequate.

The Superior Court of Justice dismissed the appeal, finding that family law arbitrations are not required to mirror court processes, the parties were treated equally and fairly, and the arbitrator's reasons were sufficient.

The father brought a motion seeking to set aside an arbitration award made by Linda Chodos regarding the school placement of the parties' child for the 2012/2013 school year.

The father sought removal of the arbitrator, a declaration that the mediation/arbitration agreement was invalid, a stay of the arbitration, and a temporary parenting order.

The mother opposed the motion and sought a stay of the parenting proceeding.

The court found that the Ontario Court of Justice lacked jurisdiction to set aside the award, challenge the arbitrator, or remove the arbitrator.

The court determined that the arbitrator did not resign and that the mediation/arbitration agreement remained in force.

The court dismissed the father's motion and granted a stay of the parenting proceeding, allowing the arbitration process to continue.

The parties entered into a separation agreement requiring spousal support variations to be dealt with by arbitration.

After the husband stopped paying support, the wife filed the agreement for enforcement under s. 35 of the Family Law Act.

The husband then applied to the Superior Court to vary support and moved under the Family Responsibility and Support Arrears Enforcement Act to prevent the suspension of his driver's licence.

The motion judge held the court had jurisdiction to vary support because the wife sought enforcement under the Family Law Act.

The Court of Appeal allowed the wife's appeal, holding that neither the Family Law Act nor the Enforcement Act supersedes a valid domestic contract's exclusive arbitration provision.

The applicant brought a motion seeking an order requiring the respondent to participate in arbitration pursuant to a mediation–arbitration agreement addressing parenting access issues concerning the parties’ child.

The respondent sought to strike or stay the motion on the basis that the applicant was in substantial arrears of child support under a prior Georgia judgment and had failed to comply with other obligations under that order.

The court held that the mediation–arbitration agreement constituted a binding contract entered into with independent legal advice and that the parties were required to comply with its terms.

The alleged breaches of the Georgia judgment were properly addressed in separate proceedings under the Interjurisdictional Support Orders Act and did not justify refusing enforcement of the arbitration agreement.

The respondent’s motion to strike or stay was dismissed and the applicant’s motion compelling arbitration was granted.

The appellant appealed an arbitrator’s ruling under ss. 45(2) and (3) of the Arbitration Act, 1991 after the arbitrator dismissed a motion seeking to strike or limit the respondent’s claims based on an exclusion clause in a distribution agreement.

The court held that the arbitrator’s decision was interlocutory rather than a final award because it did not dispose of the substantive dispute and instead required factual findings at a full hearing.

Under the Arbitration Act, interlocutory rulings in arbitration are not subject to appeal.

The court further found no error in the arbitrator’s conclusion that interpretation of the contractual limitation clause required consideration of the factual matrix.

The appeal and challenge to the arbitrator’s costs award were dismissed.

The court dismissed both an application to set aside and an appeal from an accounting arbitration under an asset purchase agreement.

The moving party argued the arbitrator exceeded jurisdiction and made manifest errors by quantifying deferred-revenue adjustments without independent expert evidence.

The court held the arbitration agreement and engagement letter authorized determination and quantification of disputed deferred-revenue items, and that the award reflected a factually grounded analysis of known costs and contingency risk allocations.

The high threshold for court intervention was not met.

The applicant landlord sought leave to appeal an arbitrator's decision which found that the respondent tenant was justified in terminating its commercial lease and ceasing rent payments due to a fundamental breach by the landlord regarding a dangerous sub-ceiling.

The Superior Court of Justice granted leave to appeal, finding that the arbitrator's failure to interpret the lease agreement to determine the allocation of repair responsibilities and failure to apply the established legal test for fundamental breach constituted errors of law.

The court set aside the arbitrator's decision and remitted the matter to a new arbitrator for a rehearing.

The appellants appealed a summary judgment dismissing their counterclaim as statute-barred under the Limitations Act, 2002.

The appellants argued that the limitation period was suspended under s. 52 of the Arbitration Act, 1991, because an arbitration had been commenced via correspondence, or alternatively, that the respondent was estopped from pleading a limitations defence.

The Court of Appeal dismissed the appeal, finding that the parties' correspondence merely proposed an arbitration agreement and did not commence an arbitration under s. 23 of the Arbitration Act, 1991.

The court also found no evidence to support an estoppel claim.

The applicant sought interim support from his late wife's estate and moved to strike portions of the respondents' affidavits.

The court adjourned the main application for support pending the resolution of a motion for directions, which resulted in several consent orders.

The court dismissed the motion for interim support, finding the applicant had significant assets and the estate was already covering the operating costs of the disputed cottage.

The court struck portions of the respondents' affidavits that dealt with irrelevant post-death events but declined to strike paragraphs addressing family dynamics that responded to the applicant's own evidence.

The applicant sought an order under s. 6 of the Arbitration Act, 1991 referring a contractual dispute to arbitration under a specific multi‑party arbitration procedure contained in a power supply contract.

The respondent agreed the dispute should proceed to arbitration but argued that a different contractual arbitration clause governed, requiring a single arbitrator to determine issues of contractual interpretation before any broader arbitration process could be triggered.

The court interpreted the contract as containing both a universal arbitration clause for general disputes and a limited clause applicable only if certain economic conditions were established.

The court held the dispute concerned interpretation of the agreement and therefore fell within the general arbitration clause.

The motion was dismissed and the matter directed to proceed before a sole arbitrator.