Radewych v. Brookfield Homes (Ontario) Ltd., 2007 ONCA 721

CITATION: Radewych v. Brookfield Homes (Ontario) Ltd., 2007 ONCA 721

DATE: 20071019

DOCKET: C46764

COURT OF APPEAL FOR ONTARIO

MOLDAVER, LANG and LAFORME JJ.A.

BETWEEN:

STEVE RADEWYCH and CHRISTINE RADEWYCH

Plaintiffs (Respondents in the Appeal)

And

BROOKFIELD HOMES (ONTARIO) LIMITED, BROOKFIELD HOMES LTD., BROOKFIELD PROPERTIES CORPORATION, VILJOEN ARCHITECTS INC. and PRESTIGE EXTERIORS INC.

Defendants (Appellant in the Appeal Brookfield Homes Ltd.)

Paul H. Starkman for the appellant Brookfield Homes Ltd.

Peter J. Mitchell for the respondents Steve and Christine Radewych

Peter Balasubramanian for the respondent Tarion Warranty Corporation

Melanie Hubbard for the respondent Viljoen Architects Inc.

Heard: October 16, 2007

On appeal from the decision of Justice Douglas Gray of the Superior Court of Justice dated February 8, 2007.

ENDORSEMENT

[1] We would dismiss the appeal for two reasons.

[2] First, we are in substantial agreement with the reasons of the motion judge insofar as they relate to his interpretation of the arbitration clause in issue and the fact that it does not encompass claims in negligence against the builder. That alone is sufficient to dispose of the appeal.

[3] Secondly, and in any event, even if the motion judge erred in holding that the homeowner’s claim in negligence against the builder fell outside the scope of the arbitration clause, because the homeowner’s claim involved parties (the architect, a sub-contractor, and Tarion) in respect of whom the arbitration agreement clause clearly did not apply, the motion judge was entitled to order that the entire claim proceed to trial for the reasons given by him, namely:

Since only part of the claim of the plaintiffs arises under the agreement, then, in my view, the matter is governed by subsection 7(5) of the Arbitration Act, 1991. That subsection reposes a discretion in the court to stay a proceeding with respect to matters dealt with in an arbitration agreement where some matters arise under the agreement and some do not. In my view, it would not be appropriate to grant a partial stay. To do so would potentially delay the resolution of the entire matter, and could produce a significant duplication of resources and potentially inconsistent findings. Such a course would be contrary to the policy reflected in section 138 of the Courts of Justice Act which, simply stated, provides that “as far as possible, multiplicity of legal proceedings shall be avoided”. It is preferable, in my view, that all of the various claims, against all of the defendants, be determined in one proceeding.

[4] His decision in that regard falls squarely within s. 7(5) of the Arbitration Act and as such, s. 7(6) of that Act applies and renders his decision unappealable. (See: Brown v. Murphy (2002), 212 D.L.R. (4th) 35 (Ont. C.A.)).

[5] Accordingly, the appeal is dismissed.

[6] If the parties cannot agree on the issue of costs, they may make brief written submissions to the court (not exceeding five pages double spaced). The respondents’ submissions should be received within ten days of the release of this endorsement. The appellant shall have five days thereafter to respond. If brief reply is required, the respondents shall have an additional five days within which to do so.

Signed: “M.J. Moldaver J.A.”

“S.E. Lang J.A.”

“H.S. LaForme J.A.”