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Motion to quash appeal granted; no appeal lies from court decision on arbitrator's jurisdiction.
The moving party brought a motion to quash an appeal from an application judge's decision setting aside an arbitrator's ruling that added subcontractors as parties to an arbitration.
The Court of Appeal granted the motion to quash, finding that the arbitrator's decision to add parties was a question of jurisdiction under the Arbitration Act, 1991.
Pursuant to section 17(9) of the Act, no appeal lies from a court's decision on a question of an arbitrator's jurisdiction.
Arbitrator's decision to join subcontractors set aside as they were not parties to the arbitration agreement.
The applicant, Covanta, brought an application to set aside an arbitrator's decision to join two subcontractors to an ongoing arbitration between Covanta and the general contractor.
The arbitrator had joined the subcontractors under Article 17(5) of the UNCITRAL Arbitration Rules.
Covanta argued the arbitrator exceeded his jurisdiction because the subcontractors were not parties to the arbitration agreement.
The Superior Court of Justice held that the arbitrator's decision was jurisdictional in nature and subject to review on a standard of correctness.
The Court found that the subcontractors were not parties to the arbitration agreement, as the subcontract did not properly incorporate the arbitration clause by reference.
The Court set aside the arbitrator's ruling and awarded costs of $50,000 to the applicant.
Costs awarded to successful respondents on appeal; appellant's statutory interpretation argument was not a novel issue.
Following the dismissal of two appeals heard together, the successful respondents sought costs.
One respondent sought substantial indemnity costs based on a Rule 49 offer to settle, while the other sought partial indemnity costs.
The appellant argued that no costs should be awarded because the appeal raised a novel issue of law regarding the interpretation of the Construction Lien Act.
The Divisional Court rejected the appellant's argument, finding the issue was not novel and the appellant's interpretation would have rendered section 20(2) of the Act meaningless.
The court awarded costs of $7,500 to each of the successful respondents.
Subcontractor cannot claim a general lien if the owner-contractor agreement specifies lot-by-lot lien rights.
The appellant, a plumbing subcontractor, registered a general lien against all lots in two subdivisions after the general contractor made an assignment in bankruptcy.
The owners had written contracts with the general contractor specifying that liens would arise and expire on a lot-by-lot basis.
The Divisional Court upheld the motions judge's decision to discharge the general liens, finding that section 20(2) of the Construction Lien Act extinguishes general lien rights for both contractors and subcontractors when the primary contract contains a lot-by-lot provision.
The court also dismissed the appellant's attempt to continue the action for unjust enrichment and quantum meruit, and refused leave to appeal costs.
