COURT FILE NO.: 76/05

DATE: 20051202

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PARDU, EPSTEIN AND LAX JJ.

B E T W E E N:

SENORA KUCYI

Applicant

• and -

ABRAHAM KUCYI

Respondent

Irving J. Aiken, Q.C., for the Applicant

Harold Niman, for the Respondent

HEARD: December 2, 2005

pardu J.: (Orally)

1Senora Kucyi appeals to set aside or quash the decision of an arbitrator. The applicant and the respondent Abraham Kucyi had agreed to arbitration to resolve issues relating to variation of spousal and child support. The “Mediation/Arbitration Agreement” provides:

1. This document constitutes a submission to arbitrate pursuant to the provisions of the Arbitration Act, S.O. 1991, c.17,

and …

5. By submitting to arbitration those issues designated in paragraph 3 above, the parties hereby waive any right to further litigate those issues in Court, whether pursuant to the Family Law Act, R.S.O. 1990, c.F.3, as amended; the Divorce Act, R.S.C. 1991, c. D-3.4 (2nd Supp.) as amended; or any other statute or law, subject to the right of judicial review of the arbitration award.

2The applicant alleges that the arbitrator did not treat her equally and fairly, did not give her sufficient opportunity to present her case or respond to the respondent’s case, that he erred in refusing to enforce the undertakings of the respondent, in allowing the respondent to submit documents before and during the arbitration, in limiting the applicant to a ten minute adjournment and that he erred in his decision on the merits and on costs.

3The Arbitration Act provides:

45.(1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,

(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and

(b) determination of the question of law at issue will significantly affect the rights of the parties.

(2) If the arbitration agreement so provides, a party may appeal an award to the court on a question of law.

(3) If the arbitration agreement so provides, a party may appeal an award to the court on a question of fact or on a question of mixed fact and law.

(4) The court may require the arbitral tribunal to explain any matter.

(5) The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court’s opinion on the question of law, in the case of an appeal on a question of law, and give directions about the conduct of the arbitration.

4In s. 1, “court” is defined as the Superior Court of Justice.

5Accordingly, the issue arises as to whether the Divisional Court has the jurisdiction to hear this application.

6It is not clear from the application filed whether the applicant is attempting to appeal from the arbitrator’s decision or whether she is advancing a claim for judicial review pursuant to the Judicial Review Procedure Act, R.S.O. 1990, c.J.1. There is an issue as to whether an arbitrator acting upon the authority of a private contract is exercising a statutory power of decision; this has not yet been authoritatively decided. (See Rea International Inc. v. Muntwyler 2004 31795 (ON SCDC), [2004] O.J. No. 3969 (Div. Ct.) aff’d [2005] O.J. No. 3128 (C.A.)).

7It is clear however that the court has a discretion to decline to entertain an application for judicial review, particularly where there is an alternative remedy.

8As noted by Epstein J. in Freeman-Maloy v. York University 2004 4349 (ON SCDC), [2004] O.J. No. 3123 (Div. Ct.):

“The leading case of Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 1995 145 (SCC), 122 D.L.R. (4th) 129 (S.C.C.) makes it clear that the court has discretion to determine whether judicial review should be undertaken. The exercise of this discretion involves an examination as to whether the statutory appeal procedures were an adequate forum in which those seeking to challenge the decision could pursue that challenge and obtain a remedy. This adequate alternative remedy principle was fully examined at length in Harelkin v. University of Regina (1979), 1979 18 (SCC), 96 D.L.R. (3d) 14 where Beetz J., for the majority, held at p.41 that “even in cases involving lack of jurisdiction”, the prerogative writs maintain their discretionary nature.

However, it is not sufficient to state that an alternative remedy exists – the alternative remedy must be “adequate.” In determining whether there exists an adequate alternative remedy that precludes judicial review, courts have considered a number of factors. These factors include the convenience of the alternative remedy, the nature of the error and the nature of the appellate body.”

9In this case the parties expressly agreed to proceed under the regime established by their contract and the Arbitration Act. The parties should not be able to sidestep that regime by means of an application for judicial review. The Arbitration Act offers the parties the ability to design their own procedural options, ranging from no appellate review at all, to full rights of appeal as to facts and the law.

10To allow parties to avoid the agreed to structure would undermine the goals that arbitration is designed to accomplish.

11As Blair J. noted in Ontario Hydro v. Denneson Mines Ltd. [1992] O.J. No. 2948 at page 3:

“The Arbitration Act, 1991 … enacted a new regime for the conduct of arbitrations in Ontario. This new regime is more sophisticated that that of the former Act and more consistent with international commercial arbitration practices. It is designed, in my view, to encourage parties to resort to arbitration as a method of resolving their disputes in commercial and other matters, and to require them to hold to that course once they have agreed to do so.

In this latter respect, the new Act entrenches the primacy of arbitration proceedings over judicial proceedings, once the parties have entered into an arbitration agreement, by directing the court, generally, not to intervene, and by establishing a “presumptive” stay of court proceedings in favour of arbitration.”

12The Arbitration Act sets out a comprehensive code for appeals and review by judges of arbitral decisions. Regardless of the agreement, s.46 of the Arbitration Act does preserve the right of a party to apply to the Superior Court of Justice to set aside an arbitral award where “the applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party’s case”.

13The mediation/arbitration agreement states: “Subject to the right of judicial review, the arbitrator’s award shall be final and binding upon the parties and shall be incorporated in a consent Order or Judgment, as the case may be, of the Ontario Superior Court of Justice (General Division)).

14In characterizing the arbitrator’s award as “final and binding upon the parties”, the parties intended to exclude the right of appeal (McAsphalt Marine Transport Ltd. v. Liberty International Canada) 2005 11794 (ON SC), [2005] O.J. No. 1424).

15The phrase “subject to the right of judicial review” cannot require the exercise of discretion to hear an application for judicial review, unless it is otherwise appropriate. In the context here of the agreement and the Arbitration Act, we interpret this phrase to reflect the ability of either party, regardless of the content of the arbitration agreement to apply under s.46 to the Superior Court of Justice to set aside the award. Such application must be brought within 30 days of the arbitral award (s.47(1)).

16The applicant did bring her application within 30 days but brought it in the wrong court.

17Section 110(1) of the Courts of Justice Act provides:

“110.(1) Where a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer.”

18Since this matter may affect the welfare of a child, we exercise our discretion to adjourn the application based on s.46 of the Arbitration Act, to a judge of the Superior Court of Justice. In other respects the application is stayed.

PARDU J.

EPSTEIN J.

I agree

LAX J.

I agree

Date of Reasons for Judgment: December 2, 2005

Date of Release: December 22, 2005

COURT FILE NO.: 76/05

DATE: 20051202

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT