Court of Appeal for Ontario
Date: 2017-06-16 Docket: C62254 Panel: MacPherson, Blair and MacFarland JJ.A.
Between
Hussein Mroue and Imad Mroue Appellants (Plaintiffs)
and
Issam Mroue Respondent (Defendant)
Counsel
Ernest G. Tannis, for the appellants
Christopher Spiteri and John E. MacDonnell, for the respondent
Heard: June 16, 2017
On appeal from: The judgment of Justice Colin D.A. McKinnon of the Superior Court of Justice, dated May 9, 2016.
Reasons for Decision
[1] The trial judge determined that the documentation placed before the arbitrator "clearly indicated that the appellant meant to be bound by the arbitrator's judgment and in particular the documents he admitted signing clearly and unambiguously establish that he sought out a process whereby his dispute with his brother would be determined according to Sharia Law and that he was prepared to accept the judgment of the arbitrator as binding upon him." As the trial judge noted, the appellant's signature on the document is immediately followed by the words "who accepts the Shari'a based judgement" and there was no dispute about the English translation of the document.
[2] The trial judge found that all four conditions for a binding ruling according to Sharia Law had been met:
- The parties agreed to proceed by way of arbitration;
- The arbitrator was qualified;
- The arbitrator had jurisdiction to rule on property disputes deriving from the payment of money;
- The parties agreed on the question to be put to the arbitrator.
[3] He concluded the parties sought a decision in accordance with Sharia Law and received one. It was not open to one of the parties, dissatisfied with the result, to complain now.
[4] Further, he concluded on the evidence that the judgment was final in nature, the parties in the arbitration and before the court were the same and there was no reason why the appellant should not be estopped from asserting the same issues in the Ontario action that had been determined by the arbitrator in Iran.
[5] The trial judge concluded that the International Commercial Arbitration Act, R.S.O. 1990, c. I.9 (ICAA), did not and could not apply because the appellants' invocation of that statute was out of time. The Ontario pleadings make no reference to the ICAA. However, even if it had applied, and it were open to the appellant to apply to set aside the award, this would not be an appropriate case to do so as there was no unfairness in the arbitral proceeding.
[6] These conclusions were all open to the trial judge on the evidence before him. In this court the appellant simply seeks a different result. We are not persuaded that the trial judge made any error; his findings were clearly based on the evidentiary record before him. Where the evidence conflicted, he preferred the evidence of the respondent and his expert – this is the role of a trial judge and deference is owed to his factual findings in this court.
[7] Although the appellant sought leave to appeal the trial judge's costs disposition, in view of the foregoing, while leave is granted the appeal as to costs is dismissed.
[8] Appeal is dismissed. Costs to the respondent fixed in the sum of $15,000 inclusive of HST and disbursements.
J.C. MacPherson J.A.
R.A. Blair J.A.
J. MacFarland J.A.