Court File and Parties

Court: Court of Appeal for Ontario Date: 2021-06-16 Docket: M52504 (M52494)

Before: Zarnett J.A. (Motions Judge)

Between: Optiva Inc., Applicant (Responding Party) And: Tbaytel, Respondent (Moving Party)

Counsel: Alexander Rose and Alexandra Urbanski, for the moving party John Nicholl, Eric van Eyken, and Andrea Coates, for the responding party

Heard: June 4, 2021 by videoconference

Endorsement

I. Introduction

[1] The moving party, Tbaytel, moves to strike the affidavit of J. Brian Casey (“the Affidavit”) which the responding party, Optiva Inc. (“Optiva”) has sought leave to file in connection with a pending motion for leave to appeal. Tbaytel also asks that certain paragraphs in Optiva’s Amended Notice of Motion for Leave to Appeal (“ANOM”) that refer to the Affidavit be struck.

[2] For the reasons that follow, I allow the motion in part.

II. Background

[3] In arbitration proceedings brought by Tbaytel against Optiva, the arbitrator held that he had jurisdiction to decide the case by summary judgment, that is, on the basis of affidavit evidence and transcripts of cross-examinations, rather than by hearing from witnesses testifying before him. Following this procedure, he made an award in favour of Tbaytel.

[4] Optiva moved to set aside the arbitration award under s. 46(1) of the Arbitration Act, 1991, S.O. 1991, c.17 (the “Act”), arguing that a summary judgment procedure did not treat it equally and fairly, give it an opportunity to respond to Tbaytel’s case, or comply with the Act. Optiva also argued that the arbitrator’s award had been based on passages of case law that it was not given a proper opportunity to address. It also requested leave to appeal the Award under s. 45(1) of the Act in relation to the arbitrator’s treatment of a limitation of liability clause.

[5] Newton J. dismissed Optiva’s motion: 2021 ONSC 2929. He held that the complaint about proceeding by summary judgment was out of time and that: “even if the challenge was not out of time, I conclude that the arbitrator could elect to proceed by summary judgment absent the consent of Optiva”. In connection with the argument that the arbitrator had relied on passages of case law that Optiva had not had the opportunity to address, he stated, “Counsel knew that the limitation of liability issue was ‘live’ and that the…decision was ‘in play’. I find no merit to the suggestion that, as Optiva had not anticipated that the entire decision would be read by the arbitrator, it must be given the right to make further submissions”.

[6] Optiva has applied for leave to appeal to this court. In its ANOM, it argues, among other things, that the issues it raises are matters of public importance. It submits that whether summary judgment is available in arbitration absent the consent of the parties, and the manner in which an arbitrator may use case law provided, are important questions for the practice of arbitration and extend beyond the interests of the parties.

[7] In connection with those aspects of the motion for leave to appeal, Optiva has requested permission of the panel to file the Affidavit, which it maintains “provides factual information which speaks to the public importance to the practice of arbitration of the issues raised”.

[8] Tbaytel seeks to strike the Affidavit and references to it in the ANOM before the matter comes to the panel for consideration.

III. Analysis

(a) The Applicable Principles

[9] Although the ultimate question of whether to admit an affidavit is for the panel hearing the leave to appeal motion, where an affidavit is improper, it can be struck at this stage. This is the procedure contemplated by Weiler J.A. in Canada Mortgage and Housing Corp. v. Iness (2002), 62 O.R. (3d) 255 (ONCA) at para. 15:

In the future, it seems to me that the party seeking to adduce evidence on the matter of public importance should file a motion to admit evidence on the matter and a supporting affidavit with the application for leave to appeal. Similarly, any response to the affidavit should be filed with the responding materials on the leave motion. The panel hearing the application for leave to appeal would then consider the motion to admit the evidence on the issue of public importance when considering the leave application. Motions to strike affidavits and motions to cross-examine on such affidavit material would properly be made to the chambers judge.

[10] The grounds on which an affidavit may be struck at this stage are informed by some basic rules. An affidavit cannot express an opinion that the proposed appeal raises issues of public importance, since that is for the panel to decide: Iness, at para. 11. Nor can it “seek by way of experts’ opinion, to buttress an attack on the decisions from which leave to appeal is sought”: Ballard Estate v. Ballard Estate, 1991 S.C.C.A. No. 239.

[11] Rather, an affidavit will only be proper if it sets out facts that may help the panel appreciate the public importance of the issues raised: Iness, at para. 11.

[12] Public importance in this context refers to “the impact which the decision on the question will have on the development of the jurisprudence of Ontario” and the extent to which the resolution of the question would “settle for the future a question of general interest to the public or a broad segment of the public”: Sault Dock Co. v. Sault Ste. Marie (City), [1973] 2 O.R. 479 (C.A.) at para. 7.

[13] In general, whether a legal issue is of public importance is not something on which an affidavit would be helpful. But:

In some cases it may not be apparent from the rest of the materials why, for example, the decision sought to be appealed is alleged to establish a precedent that is unworkable in practice, or otherwise is likely to have a problematic impact or jurisprudential importance not apparent on its face: Aecon Buildings v. Stephenson Engineering Ltd., 2011 SCC 33, [2011] 2 S.C.R. 560, at para. 4.

(b) Application of the Principles to the Affidavit and the ANOM

[14] Tbaytel argues that the Affidavit is an improper expert opinion – both because it fails to comply with the rules about expert opinions, such as the requirement for an acknowledgment of an expert’s duty, and because it contains an attack on the correctness of the decisions from which leave to appeal is sought. I do not agree.

[15] The Affidavit does describe the deponent as a highly experienced arbitrator and counsel in arbitrations, and an author of a text on the subject. But he describes what he is providing as facts that relate to the public interest in the issues raised on the motion for leave to appeal. I take the description of Mr. Casey’s qualifications to be the foundation for why he knows the facts he attests to, rather than an attempt to proffer him as an expert giving an opinion.

[16] Mr. Casey refers to having read the arbitrator’s and motion judge’s decisions but confirms that he expresses no opinion on them. I do not read the Affidavit to say the decisions are correct or incorrect. As noted below, I agree with Tbaytel that to the extent Optiva submits in its ANOM that the Affidavit supports an argument that the decisions are incorrect, those references in the ANOM should be struck.

[17] The Affidavit refers to the legal structure of an arbitration (governed by the Act and the parties’ arbitration agreement). Tbaytel complains that matters of domestic law are not the proper subject of an affidavit. While this is technically correct, these are not the main point of the Affidavit and appear largely as context for Mr. Casey’s factual statements. That type of infraction will not always lead to an affidavit being struck: Iness, at para. 14.

[18] The main paragraphs of the portion of the Affidavit that addresses summary judgment describe general practices in arbitration, based on both Mr. Casey’s personal participation and his knowledge of the practices of other arbitrators. In his experience, a summary judgment procedure is not undertaken without both parties’ explicit consent.

[19] Optiva submits, and I agree, that practice is not law. Describing what common practice has been does not suggest that the decision of the motion judge, that an arbitrator may proceed by summary judgment absent consent, is legally incorrect. But Mr. Casey’s description of a general practice of requiring explicit consent may illuminate the impact of a decision that consent is not legally necessary, and help the panel appreciate the importance of the issue to members of the public engaging in arbitration. Given its generally non-public nature, arbitration is an area where, without evidence, such matters might not otherwise be apparent: Aecon, at para. 4.

[20] Tbaytel argues that the practice described in the Affidavit is not relevant because, in this case, there was a specific arbitration agreement which may not have been present in other situations. In my view, this is a matter of weight for the panel but does not support the complete striking of the Affidavit at this stage.

[21] However, I agree with Tbaytel that para. 18 of the Affidavit should be struck. It expresses an opinion about the importance of the issues and a view that the matters have not been judicially considered. The first is a matter for the panel, the second for argument.

[22] The Affidavit also addresses the use of case law provided to the arbitrator and the opportunity given to parties to address it. This section of the Affidavit should be struck. Mr. Casey does not describe a general practice but states his understanding of what an arbitrator “must” do, and gives an opinion on the importance of the issue and whether an Ontario court has ever addressed it.

[23] Paragraphs (kk) and (ll) of the ANOM rely on the Affidavit to make points about the correctness of the decision of the motion judge. Those references should be struck as the Affidavit cannot be used to buttress an attack on the correctness of the decision from which leave to appeal is sought: Ballard Estate.

IV. Conclusion

[24] Paragraphs 6(b) and 18-22 of the Affidavit, and the references to the Affidavit in paragraphs (kk) and (ll) of the ANOM, are struck. Optiva shall refile the Affidavit and the ANOM with the necessary revisions to comply with this order.

[25] Optiva’s request for a ten-day extension to file its materials for its leave to appeal motion is granted. Its request for a longer factum is denied.

[26] Given its partial success, Tbaytel is entitled to costs of this motion in the amount $3,500, inclusive of disbursements and applicable taxes.

“B. Zarnett J.A.”