COURT FILE NO.: DC-08-088895-00

DATE: 20080618

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TONY ALAIMO, ELIZABETH ANTHONY, NANCY BALSAMO, MARY D’AVERSA, CATHY CARERI, VITTORIA GIOVANNETTI, JOSIE MARIANI, CARMELA ROTOLO and ENZA VENUTO

Applicants

• and -

MARIA PIA DI MAIO and IOLANDA MASCI

Respondents

Counsel: Mr. B. Goldman for the Applicants Mr. B. Shulakewych for the Respondent, Di Miao Mr. D. Lees for the Respondent, Masci

HEARD: April 23 and 24, 2008.

REASONS FOR JUDGMENT

BOSWELL, J.

I. INTRODUCTION:

[1] Hospice Vaughan is a charitable organization dedicated to providing care to individuals facing life threatening illnesses and their families.

[2] The Hospice has a charter and by-laws. It is governed by a volunteer Board of Directors who are elected by an assembly of the members of the organization at regular, defined intervals. It is staffed by several paid employees, but a great deal of its good works result from the tireless efforts of its dedicated volunteers.

[3] The Hospice receives modest government funding but primarily its ability to function is the direct result of the charitable donations of individuals and businesses in and around the City of Vaughan.

[4] The services provided by the Hospice are important and they are provided in difficult and often tragic circumstances.

[5] The Hospice is a place of compassion and tenderness, of community spirit, of dedication and charity. It is arguably the last place one would expect to find a derisive and costly power struggle for stewardship of a group of volunteers and charitable programs. Yet we are faced with exactly that: an epic struggle for control of the Board of Directors. This struggle has been very costly to the Hospice. It has been depressingly expensive financially and, perhaps more profoundly, has tarnished the reputation of the Hospice in the community.

[6] It is imperative that the struggle be brought to an end so that the Hospice can begin to refocus its efforts entirely on providing the supportive works it has been known for over the past decade or more.

II. THE PARTIES:

[7] On March 18, 2008, an election of the Board of Directors of Hospice Vaughan was held. This Application is brought by a group of outgoing Board members seeking, in essence, to have the election results set aside.

[8] The Applicant was initially styled as the “Board of Directors of Hospice Vaughan”. There were at least two problems with that style. First, the constitution of the Board of Directors is precisely what is at issue is this proceeding. Accordingly, the group of individuals bringing this Application can not be presumed to have the authority to act as the Board of Directors of Hospice Vaughan. Second, a Board of Directors is not a legal entity – it is merely an association of individuals.

[9] At the outset of the hearing of this matter I inquired of Mr. Goldman who the individuals were that were bringing this Application. He provided me with a list of names of those parties and I ordered that the style of cause be amended so that those individuals appeared as the named Applicants.

III. HISTORY OF PROCEEDINGS:

[10] The proceedings between the parties can be broken down into five significant stages:

1. An initial application commenced by the Respondents which was finalized in October 2007;
2. A series of disputed Arbitral Rulings;
3. A motion on February 13, 2008 brought by the Applicants to challenge certain arbitral rulings;
4. A motion on March 13, 2008 to further challenge arbitral rulings; and,
5. The present application.

The Di Maio Application:

[11] This current proceeding has its roots in an Application commenced by the present Respondents, Ms. Di Maio and Ms. Masci, in or about April, 2006 (the “Di Maio Application”). The Di Maio Application, which named Hospice Vaughan as the Respondent, raised concerns about, amongst other things, the manner in which renovations had been conducted and paid for at the Hospice Vaughan premises on Woodbridge Avenue in Woodbridge, Ontario. An order was sought requesting that the Public Guardian and Trustee fully investigate the financial affairs of the Hospice and further that a general meeting be called for the purpose of electing a new Board of Directors.

[12] The Di Maio Application was resolved by way of the final Order of the Honourable Mr. Justice Sosna dated October 22, 2007 (the “Judgment”). The Judgment, which called for a general election meeting to be held on February 20, 2008, was made on consent in accordance with an agreement between the parties.

[13] Anticipating that there may be ongoing conflict between interested parties, Justice Sosna, with the consent of the parties, appointed a solicitor, Terry Carter (the “Arbitrator”), as an arbitrator to determine any and all issues arising from the Judgment. In this respect, the Judgment was certainly prescient. The Arbitrator was called upon to make almost 20 rulings between early January 2008 and the time the election was ultimately concluded.

[14] The clear intent of the Judgment was to get the parties out of the Court system and back to the business of servicing the public. The appointment of the Arbitrator provided the parties with access to speedy and relatively cost-effective resolution of any issues arising between them in connection with the election process.

The Disputed Arbitral Rulings

(i) The January 24, 2008 ruling

[15] Public perception about the activities of the Hospice is a matter of significant importance to the parties. The issues raised in the Di Maio Application had the potential to tarnish the reputation of Hospice Vaughan and erode public confidence in it as an institution. It appears to me that the process established by Justice Sosna’s Judgment was intended to bring an end to the divisiveness between the parties and to the ongoing damage to both the reputation and financial bottom line of Hospice Vaughan.

[16] Paragraph 18 of the Judgment provided that all individuals who were to be invited to attend the election meeting on February 20, 2008 were to be informed in writing that if they had any questions or concerns regarding any of the prior proceedings, they could attend at the offices of Hospice Vaughan prior to the election to review the litigation documents. This provision established a mechanism for interested members of Hospice Vaughan to review the history of the litigation and the positions of the parties expressed in the court documents. Each individual could then make up his or her own mind about the substance of the litigation. In this way, further litigation of the issues in the “court of public opinion” could be avoided, along with the further damage that such a public dispute would cause.

[17] Notwithstanding the provisions of paragraph 18 of the Judgment, in early January 2008, Ms. Masci and/or Ms. Di Maio circulated a letter to Hospice Vaughan members setting out some of their concerns with respect to the manner in which the Hospice had been run under the existing Board of Directors. The letter was of an electioneering or campaigning nature.

[18] Hospice Vaughan was justifiably concerned about the circulation of the letter and it sought a ruling from the Arbitrator disqualifying Ms. Masci and Ms. Di Maio from participating in the election in any way, from nominating potential candidates, from attending the election or voting, and from standing for nomination as directors.

[19] The Arbitrator found that in circulating the letter to Hospice Vaughan members, Ms. Di Maio and Ms. Masci had breached the spirit, if not the letter, of the Judgment. While he did not disqualify them from participating further in the election process, the Arbitrator ruled, on January 24, 2008, that Ms. Di Maio and Ms. Masci were to be enjoined from publishing, or facilitating the publishing, of any false, inflammatory, abusive, or defamatory comment, as determined at the discretion of the Arbitrator, in any form whatsoever, whether it be written, electronic, telegraphic, telephonic, spoken or otherwise, with respect to Hospice Vaughan.

[20] The January 24, 2008 ruling was refined and expanded upon by a further ruling on January 30, 2008. An article about the upcoming election had appeared in a local Italian community newspaper. It was not clear who the author of the article was, nor what the source of the information was. The Arbitrator expanded the injunction he issued on January 24, 2008 to provide that none of the parties were to communicate with the media concerning any aspect of the election meeting or the litigation between the parties.

(ii) The January 25 and 28, 2008 Rulings

[21] One of the many contentious issues between the parties was the determination of who would be entitled to vote in the election of the new Board. The Judgment provided that only members of Hospice Vaughan could vote in the election. Membership was to be determined according to three defined categories.

[22] The Arbitrator held a hearing on January 24, 2008 at which time he received oral submissions from the parties regarding the membership list. The parties were able to agree on some 75 individuals who met the definition of “Category 1 Members”, that is, individuals who were invited to attend and vote at the June 2005 Annual General Meeting, and/or those who did attend the June 2005 Annual General Meeting. There was a dispute about an additional 60 proposed members that Ms. Di Maio claimed qualified as Category 1 members.

[23] Two days before the January 24, 2008 hearing, Ms. Di Maio filed an affidavit with the Arbitrator regarding the identity of the 60 disputed Category 1 members. Ms. Di Maio had been the executive director of Hospice Vaughan in June 2005 and her affidavit explained how invitations were made to the 2005 meeting. The Arbitrator was satisfied that she was the person in the best position to provide information about who was invited to attend the 2005 Annual General Meeting and to vote at that time. Furthermore, her affidavit was corroborated by some 30 of the 60 disputed individuals. The Arbitrator found her evidence to be persuasive and reliable.

[24] Part way through the arbitration hearing on January 24, 2008 counsel to Hospice Vaughan sought an adjournment to cross-examine Ms. Di Maio on her affidavit. The Arbitrator ruled that adjourning for cross-examination would unduly delay the finalization of the membership list and the request for cross-examination was denied. The Arbitrator gave an oral ruling on January 24, 2008 regarding the membership list, which included all 60 of the disputed members.

[25] On January 25, 2008, counsel for Hospice Vaughan asked the Arbitrator to review a transcript from a prior cross-examination of Ms. Di Maio and to reconsider his acceptance of the 60 disputed Category 1 members. The Arbitrator agreed to review the transcript, but after having done so, did not change his ruling.

[26] On January 28, 2008 the Arbitrator released a written ruling particularizing the list of members entitled to attend and vote at the Election Meeting on February 20, 2008.

(iii) The February 5, 2008 Ruling:

[27] On January 31, 2008 an article appeared in the Vaughan Perspectives, a local community newspaper. The article was entitled, “Hospice Vaughan divided over tendering and election questions” and, as the name suggests, the article contained information regarding the dispute between the parties and the upcoming election.

[28] The Arbitrator identified Ms. Di Maio as a source of the information contained in the Vaughan Perspectives article. Although there was certainly some question about the timing of the information provided by Ms. Di Maio to the media, the Arbitrator found that Ms. Di Maio had made continuous efforts to unfairly prejudice the conduct and outcome of the election. He found that she had circumvented the intentions of the Judgment and the rulings of the Arbitrator.

[29] Ultimately, the Arbitrator ruled on February 5, 2008 that Ms. Di Maio was disqualified from attending at the election meeting, voting (either in person or by proxy) and from being a proxy holder for other members.

[30] Hospice Vaughan sought a ruling from the Arbitrator permitting it to make a statement to the press, more or less as a response to the Vaughan Perspectives article. The Arbitrator denied that request. Instead, the Arbitrator prepared a statement to be delivered to members of Hospice Vaughan along with the notice of the election meeting, advising the members of the Arbitrator’s concerns about the materials that had previously been circulated and/or published. The members were encouraged to attend at the offices of Hospice Vaughan to review the court documents themselves.

The February 19, 2008 Motion:

[31] On February 19, 2008, Hospice Vaughan brought a motion before Sosna, J. asking him to amend his Judgment based on particulars purportedly not previously adjudicated upon and to adjourn the election scheduled for February 20, 2008. In particular, Hospice Vaughan made the following allegations in the grounds set out in support of its motion:

(a) the Judgment was not clear enough about who Category 1 members were to include. Hospice Vaughan raised an issue about the 60 disputed members and asked that Category 1 be redefined;

(b) the Judgment was not clear enough about condemning electioneering. Hospice Vaughan sought an amendment to the Judgment that would provide for the immediate disqualification of any individual involved in electioneering or campaigning.

[32] Justice Sosna made a further Order on February 19, 2008 in response to the motion of Hospice Vaughan. In his February 19th Order, Sosna, J. provided, inter alia, as follows:

(1) The Judgment was stayed for 30 days – in other words, the election was postponed for 30 days;

(2) The election was rescheduled for March 18, 2008;

(3) The rulings of the Arbitrator were confirmed;

(4) A process was established for a question and answer period to be held by the Arbitrator on election night, prior to the vote, so that any interested person could make inquiries of the Arbitrator regarding any outstanding concerns.

The March 13, 2008 Motion:

[33] On March 13, 2008 Hospice Vaughan brought a motion seeking leave to appeal the Arbitrator’s Rulings of February 5, 2008 and March 7, 2008. The March 7th ruling related primarily to the request of Hospice Vaughan that the Arbitrator reconsider a number of his previous decisions, including the decision to not allow cross-examination of Ms. Di Maio on her January 21, 2008 affidavit and to reconsider the membership list.

[34] Hospice Vaughan also asked for judicial review of the Arbitrator’s Rulings of January 28, January 30, February 5 and March 7, 2008.

[35] The motion came before Ferguson, J. who declined to make any order.

[36] The election proceeded on March 18, 2008 despite Hospice Vaughan’s attempt on March 13, 2008 to obtain another postponement. A new Board of Directors was elected. The previous members of the Board of Directors, not voted in at the March 18th election, immediately served a motion returnable in Court on March 19, 2008 seeking essentially the same relief sought before Ferguson J. on March 13, 2008.

[37] The matter was adjourned by Boyko, J. on March 19, 2008, after which time Bryant, J. was appointed to case manage the file.

The Current Application:

[38] On April 7, 2008, Bryant, J., after conducting a lengthy administrative hearing with counsel for all parties, made an Order that attempted to narrow and define the issues between the parties. Following his endorsement, the Applicants (i.e. the former members of the Board of Directors of Hospice Vaughan) issued the Application that came before the Court on April 23 and 24, 2008.

[39] The Notice of Application sets out the following, amongst other, relief:

(1) Judicial review of the Arbitrator’s rulings of January 24, 25, 28 and 30, 2008;

(2) An Order setting aside the results of the election on March 18, 2008;

(3) An Order setting a new election date, with such election to be conducted under the supervision of the court.

[40] Notwithstanding the significant prior judicial involvement - in particular the attempts of the case management judge to define the issues between the parties - the Application continued to lack clarity when it came on for a hearing. It has been a struggle to define with precision the legal issues between the parties. The Notice of Application did not specify the grounds of the Application, contrary to Rule 38.04(b) of the Rules of Civil Procedure. At the hearing, the Applicants argued relief and grounds outside of the four corners of the Notice of Application.

[41] In its simplest terms, what is before the court is a request by the former Board of Directors to set aside the March 18, 2008 election results and to hold a new election. The Respondents named in the Application are not on the new Board of Directors and perhaps the new Board members would have been more appropriate responding parties. Nevertheless, the named Respondents represent those parties who wish to see the election results confirmed.

IV. OUTSTANDING ISSUES:

[42] The essence of the present proceeding is that the Applicants believe the election process was not fair and should not stand.

[43] Quite apart from the factual and legal issues in dispute between the parties, there is a real question as to the Court’s jurisdiction to adjudicate upon the issues raised in the Application. In view of the fact that the Judgment, which was not appealed, appointed Mr. Carter to arbitrate any further disputes between the parties on issues arising from the operation of the Judgment, what authority does this Court now have to intervene or review the decisions made by the Arbitrator?

[44] It is apparent from a liberal and generous reading of the Notice of Application that the Applicants rely on one of three mechanisms to engage the jurisdiction of this Court. They seek either judicial review of the Arbitrator’s rulings of January 24, 25, 28 and 30, or leave to appeal those decisions under the Arbitration Act[^1] (the “Act”). Alternatively, and apart from any consideration of the Arbitrator’s rulings, they seek an order setting aside the results of the March 18, 2008 election, based on common law principles.

[45] In my view, the issues raised by the Application can best be defined as follows:

(a) Is judicial review available to the Applicants with respect to any or all of the Arbitrator’s rulings?

(b) Alternatively, do the Applicants have the right to appeal the decisions of the Arbitrator and if so, have the Applicants met the technical requirements of the Act with respect to the appeal process?

(c) If the answer to (b) is yes, did the Arbitrator make errors that justify the relief sought by the Applicants?

(d) In the further alternative, and in any event, have the Applicants made out a case justifying an order setting aside the election results?

V. ANALYSIS:

(a) Is Judicial Review available to the Applicants?

[46] In their Factum, the Applicants argue that “there are three possible avenues by which the complaints of the Applicants can be brought to judicial review”. The Factum elaborates those three avenues as: (1) that the Court-appointed arbitrator exceeded his jurisdiction; (2) that Hospice Vaughan was denied its right to a fair hearing; and (3) that various alleged irregularities in the course of the election itself rendered the election undemocratic, unreliable and unfair.[^2]

[47] The Applicant’s Factum does not, however, directly address the issue of whether judicial review, as a remedy, is available with respect to the decisions of a private arbitrator. The Applicants have not provided the Court with any authority to support the proposition that the decisions of a private arbitrator are subject to judicial review.

[48] In Ontario, judicial review applications are governed by the Judicial Review Procedure Act,[^3] which provides at s. 2 as follows:

2(1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

[49] The Notice of Application in this instance is not styled “Notice of Application for Judicial Review” but in my view nothing turns on that fact. More problematic is the fact that the Notice of Application does not specify the nature of order sought through judicial review – it merely asks that “an order for judicial review” be made.

[50] In the interests of justice I have done my best to give the Application its most liberal and generous interpretation. I understand that what the Applicants really care about is obtaining an Order setting aside the election results and allowing them to continue to act as directors of Hospice Vaughan. They do not care so much about the technicalities of how such an order might be obtained. In giving the Notice of Application a liberal reading, it appears to me that the Applicants are seeking, by way of judicial review, a declaration that the election is void and directing that a new election be held.

[51] That said, it remains important to consider jurisdictional issues for at least two reasons. Firstly, it is appropriate that the Respondents know the case that they have to meet. The vague manner in which the Notice of Application was drafted was not helpful in defining the issues to be argued, in particular whether the Application is a request for judicial review and if so, on what grounds, or whether this is an appeal under section 45(1) of the Act or a request for review under section 46(1) of the Act. Secondly, this is a situation where the parties consented to the terms of the Judgment of Sosna, J., including the provision that any further disputes between them in relation to the election would be resolved by an arbitrator. In light of that agreement, it is important to explore the basis on which the Applicants might now be entitled to have a public law remedy apply to a decision made in the context of a private law arrangement.

[52] The issue of whether judicial review is available in respect of an arbitrator’s decisions made pursuant to a consensual arbitration is one that has not been authoritatively determined in Ontario.[^4]

[53] Historically, prerogative writs, including mandamus, prohibition and certiorari, were a means by which the Crown, through its superior courts, could effect control over inferior courts or other public authorities under its jurisdiction. The prerogative writs were public law remedies and were not available to review the decisions of privately created tribunals. With the introduction in 1971 of the Ontario Judicial Review Procedure Act, a single application for judicial review was created that consolidated most of the old prerogative writs and in addition granted the Superior Court power to grant declarations and injunctions with respect to the exercise of statutory decision-making powers.

[54] The restriction on the court’s authority in judicial review applications to grant injunctions or declarations only with respect to the exercise of statutory decision-making powers, in my view signified an intention on the part of the Legislature to prevent the use of judicial review in the private domain. Judicial review has been, and continues to be, a mechanism by which the Superior Court maintains some measure of control over the exercise of powers derived from delegated state authority. In other words, judicial review remains a public law remedy.

[55] At the heart of the matter before the court is whether it can be said that an arbitrator appointed by the court pursuant to the agreement of the parties was exercising a statutory power of decision.

[56] Section 1 of the Judicial Review Procedure Act defines “statutory power of decision” as:

a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court.

[57] There is some historical precedent supporting judicial review of arbitral decisions. In particular, labour arbitrators have traditionally been treated as being subject to judicial review. The distinguishing feature of labour arbitration, however, is that it is mandatory in certain conditions under the Labour Relations Act[^5] and as such it has been held that labour arbitrators exercise powers of a public nature.

[58] The importance of the distinction between a decision-maker exercising a power delegated by statute and a decision-maker exercising a power delegated by private consensus was recently addressed by the Alberta Court of Appeal in Knox v. Conservative Party of Canada[^6]. In the Knox decision, the Court held that “if a tribunal is exercising powers that do not accrue to private organizations, and that are only vested on the tribunal by statute for the benefit of the public, then it is subject to judicial review. Otherwise it is a private consensual tribunal and prima facie subject only to private law remedies.”

[59] Knox was the only case referred to me by counsel that directly addressed the issue of whether or not judicial review is available with respect to the decisions of an arbitrator appointed by agreement of the parties. Knox answered that question in the negative.

[60] In the case at bar, although the parties agree that the Act governs all proceedings conducted by Mr. Carter, the power or right of Mr. Carter to conduct the arbitration and to make decisions affecting the legal rights of the parties did not have its genesis in a statute, but rather was conferred by the private agreement between the parties that was ultimately incorporated into the Judgment.

[61] The parties agreed to the appointment of the Arbitrator. They agreed that the costs and damaging effects of the ongoing litigation were not in the best interests of Hospice Vaughan. They agreed that holding an election to appoint a new Board of Directors and putting the past behind them was in the best interests of Hospice Vaughan. They agreed to a private dispute resolution mechanism, through the use of the Arbitrator, to resolve any ongoing issues that developed with respect to the manner in which the election proceeded. The authority of the Arbitrator flowed from their private agreement and not from any delegation of a statutory or public power.

[62] In my opinion, judicial review is not available where an arbitrator is proceeding on the basis of a private agreement and is not exercising a statutory power of decision, as was the case in this instance.

[63] The Applicants should not be permitted to sidestep their private arrangements. They agreed that the Act would apply. Section 6 of the Act establishes the philosophy that a court is generally not to intervene in an arbitration conducted under that Act. Furthermore the Act contains express provisions at sections 45 and 46 regarding appeals and reviews that govern the rights of the parties.

[64] In my view, it would be inappropriate to apply judicial review in the circumstances of this case. Even if I am wrong in my finding that judicial review is not available in cases of private arbitration agreements, it is still the case that judicial review is a discretionary matter[^7]. In view of my foregoing comments, I would not exercise my discretion to undertake judicial review in light of the parties’ private arrangements in this instance.

[65] The unavailability of judicial review does not, however, mean that arbitral decisions in Ontario are not subject to judicial scrutiny. There remain rights of appeal as specified in the Act.

(b) The Applicants’ Appeal Rights:

[66] The Judgment does not provide any guidance in terms of the jurisdiction of the Arbitrator. Nevertheless I was advised by all counsel that the parties agree that at all times it was their intention that the Act would govern the Arbitrator.

[67] Section 2(1) of the Act provides that it applies to arbitrations conducted under arbitration agreements unless otherwise excluded by law. The parties are agreed that the Judgment reflects an agreement amongst them to arbitrate and as such the Act applies.

[68] The following provisions of the Act are particularly relevant to this application:

19. (1) In an arbitration, the parties shall be treated equally and fairly.

(2) Each party shall be given an opportunity to present a case and to respond to the other parties’ cases.

20. (1) The arbitral tribunal may determine the procedure to be followed in the arbitration, in accordance with this Act.

21. An award binds the parties, unless it is set aside or varied under section 45 or 46 (appeal, setting aside award).

22. (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.

46. (1) On a party’s application, the court may set aside an award on any of the following grounds:

47. A party entered into the arbitration agreement while under a legal incapacity.

48. The arbitration agreement is invalid or has ceased to exist.

49. The award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.

50. The composition of the tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with this Act.

51. The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.

52. 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, or was not given proper notice of the arbitration or of the appointment of an arbitrator.

53. The procedures followed in the arbitration did not comply with this Act.

54. An arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias.

55. The award was obtained by fraud.

56. The award is a family arbitration award that is not enforceable under the Family Law Act.

57. (1) An appeal of an award or an application to set aside an award shall be commenced within thirty days after the appellant or applicant receives the award, correction, explanation, change or statement of reasons on which the appeal or application is based.

[69] There is no question that the arbitration agreement – as incorporated in the Judgment – does not deal with appeals on questions of fact or mixed fact and law. Accordingly, no appeal may be brought on questions of fact or on questions of mixed fact and law.

[70] Furthermore, the arbitration agreement did not address appeal rights on questions of law and accordingly, leave must be obtained before an appeal may proceed on a question of law. Leave is only to be granted where the importance of the issues justifies an appeal and where the determination of the issue(s) of law will significantly affect the rights of the parties.

[71] I am satisfied that there are issues of importance at stake, the determination of which will significantly affect the rights of the parties. The governance of the Hospice is in issue. Until that issue is resolved on a final basis the Hospice is in limbo. Its ability to operate effectively, to raise funds and to proceed with new directives will be hampered substantially. Its very integrity remains up in the air.

[72] While I am predisposed as such to grant leave to the Applicants to appeal the impugned rulings of the Arbitrator, I must address a further, more fundamental concern. In particular, section 47 of the Act, as set out above, provides that appeals or applications to set aside arbitral awards must be made within 30 days of the receipt of the award in issue.

[73] I do not have any evidence in terms of when the impugned awards were received, but a reasonable inference, in consideration of this modern era of facsimile transmissions and email communications, is that the awards were received by the parties on the dates they were issued.

[74] The Applicants have not brought an application of any sort to set aside any of the awards of the Arbitrator pursuant to section 46 of the Act. They have asked for an order setting aside the results of the election, but the results of the election are not an arbitral award. I will not, under the circumstances, consider any relief under that section.

[75] The present Application does not directly seek leave to appeal any of the awards of the Arbitrator. It does ask for “an Order incorporating, except as amended herein, the relief sought in the Motions…on March 13, 19 and 26, 2008…” This type of draftsmanship is not to be encouraged. The Motions on March 13, 19 and 26 were not even in the same court proceeding. It would be significantly more helpful to the opposing party and to the Court to specify in the Notice of Application, all the relief sought with clarity and in such a manner that the Notice of Application is a stand alone pleading.

[76] At my request the Respondent put together a Consolidated Application Record, which included the motions previously before the Court. It appears that the Applicants first brought a motion for leave to appeal arbitral awards on March 13, 2008 and then only with respect to the awards of February 5 and March 7, 2008.

[77] The request for leave to appeal the January and February, 2008 arbitral awards was made outside of the 30 day appeal period specified in section 47 of the Act. There is no provision in the Act for the extension of the time for appeal. No request for an extension of the time to appeal has been sought. No mention of potential appeal rights is made in the Applicants’ Factum. No authority has been provided to me regarding my jurisdiction to extend the time for launching an appeal. The Respondent argues that I do not have such jurisdiction.

[78] In the absence of a specific request to extend the time in which to launch an appeal, I am not prepared to do so. No explanation has been given as to why an appeal was not launched in the appropriate time period. In all the circumstances, I decline to extend the time for filing a Notice of Appeal, even if I do have jurisdiction to do so, which has not been conclusively established.

[79] I note that the Applicants did argue that until the election was concluded all of the arbitral awards were interim and that the election result was the final arbitral ruling. It was argued that the time for appeals should not start running until the election was concluded.

[80] I do not consider the election to have been an arbitration hearing, nor do I consider the result of the election to have been an arbitral award. On the contrary, the election was a democratic vote, the outcome determined by the members and not the Arbitrator. For that reason alone, the Applicants’ argument must fail.

[81] In addition, the Act does not distinguish between interim and final arbitral awards in terms of appeal rights. Sections 41 and 42 refer to the powers of an arbitrator to make one or more interim awards as well as one or more final awards. Section 37 of the Act provides that an award of an arbitrator binds the parties, unless set aside or varied under sections 45 or 46. Section 37 does not distinguish between interim and final awards. The time for launching an appeal begins to run from the time of the award, whether the award is classified as interim or final.

[82] In my view, the Applicants are out of time, save for the arbitral award of March 7, 2008 and, save for the March 7, 2008 award, the request for leave to appeal must be dismissed.

(c) The Arbitrator’s Alleged Errors:

[83] If I am wrong about the extension of the appeal period, or about the time from which the 30 day appeal period starts running, I would not, in any event, have allowed the appeal, including the appeal of the March 7, 2008 award, for numerous reasons, assuming the Applicants met the threshold for leave to appeal.

[84] As indicated above, an appeal could only be taken in this case with respect to a question of law and not on questions of fact, or mixed fact and law. The Application fails to define the purported legal errors of the Arbitrator.

[85] The Applicants have not been consistent in terms of their position(s) and arguments through the Notice of Application, their Factum and what was argued orally. A compilation of the Applicants’ position as set out in these various sources suggests that they are relying on the following purported errors on the part of the Arbitrator:

(i) That the Arbitrator erred in law by receiving Ms. Di Maio’s affidavit in support of the membership list hearing because the affidavit was not specifically contemplated by the Judgment of Sosna, J.;

(ii) That the Arbitrator erred in not permitting a cross-examination by Mr. Goldman on the Di Maio affidavit filed in connection with the arbitration hearing on the membership list issue;

(iii) That the Arbitrator erred in not permitting Hospice Vaughan to respond in the press to improper communications between the Respondents and the press; and,

(iv) That the Arbitrator allowed numerous election irregularities to occur during the voting process.

[86] I note that the standard of appellate review with respect to alleged errors of law on the part of the Arbitrator is correctness.[^8]

[87] I also note that the parties in this case expressly agreed to an arbitration process in order to remove any ongoing disputes about the election from the courts and to put any such disputes into the hands of the Arbitrator. There were good reasons for them to do so.

[88] A frank discussion of the merits of arbitrations is found in Mungo v. Saverino[^9] where Campbell, J. stated as follows:

“The great merit of arbitrations is that they should be, compared to courts, comparatively quick, cheap, and final. There is a trade-off between perfection on the one hand and speed, economy, and finality on the other hand. If you go to arbitration, you can get quick and final justice and you can get on with your life. If you go to court, you can get exquisitely slow and expensive justice and you can spend the rest of your life enduring it and paying for it.

For a disappointed arbitral litigant, jurisdiction and natural justice are good pickings. Jurisdiction and natural justice invoke the primordial instinct of courts to second guess other tribunals and thus defeat the greatest benefit of arbitration, its finality.

It is therefore important for the court to resist its natural tendency, faced with a clear and attractive argument on jurisdiction and natural justice, to plunge into the details of the arbitration and second-guess the arbitrator not only on the result but also on the punctilio of the process. If an arbitration is basically fair, courts should resist the temptation to plunge into detailed complaints about flaws in the arbitration process.”

[89] I am mindful of the importance of resisting temptation to dissect the arbitration process unduly. Rather, the important issue is to ensure that the process was fair to all parties involved.

(i) The Di Maio Affidavit

[90] It seems to me that the main thrust of the Applicant’s position is that they did not get a fair shake when it came to the determination of the membership list. In other words, they believe that the Respondents were able to unfairly “stack the deck” with hand-picked individuals such that the outcome of the election was never really in doubt. Many of their other complaints flow from this initial issue.

[91] Paragraph 7 of the Judgment provides for the determination of “members” who will be entitled to vote at the special election meeting. A classification system was established with three categories of members described. Category 1 is further divided into three subcategories, only two of which impact on this decision:

(i) Category 1(i) grants membership status to all individuals who were invited to attend and vote at a previous annual general meeting conducted in June 2005;

(ii) Category 1(iii) refers to individuals who claim to have been present at the June 2005 annual general meeting but who do not appear on the invitation list. For these individuals to be considered as members, they are obliged to provide affidavit evidence from themselves attesting to their attendance at the meeting and supported by affidavit evidence of three supporting witnesses.

[92] The Applicants argue that the language used in Category 1(iii) precludes the acceptance by the Arbitrator of affidavit evidence for any other purpose than that described.

[93] With respect, I disagree. The dispute between the parties really arose with respect to Category 1(i) members. There is no guidance in Category 1(i) regarding evidence to be provided in connection with the determination of members of that Category.

[94] Section 20 of the Act gives arbitrators a wide discretion to determine procedure with respect to matters before them. Section 21 of that Act incorporates the evidence provisions found in section 15 of the Statutory Powers Procedure Act (“SPPA”).[^10] In turn, section 15 of the SPPA provides that [an arbitrator] may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court, any oral testimony and any document or other thing relevant to the subject-matter of the proceeding and may act on such evidence.

[95] Nothing in the Judgment, the Act or the SPPA limited the discretion of the Arbitrator to accept the Affidavit of Ms. Di Maio on the hearing to determine the membership list. It was not, in my view, an error for him to have received and considered that affidavit.

(ii) The Request to Cross-Examine:

[96] With respect to the cross-examination issue, as I have indicated, the Arbitrator had the power to control the arbitration proceedings before him.[^11] His discretion must of course be considered in the context of section 19 of the Act which provides that the parties are to be treated equally and fairly in the arbitration process and each party is to be given an opportunity to present a case and to respond to the other parties’ cases. These are essential components of natural justice.

[97] There is no absolute right to cross-examine the deponent of an opposing affidavit. The Act does not provide specifically for a right of cross-examination. The Applicants must form their argument on the foundation of their basic rights under section 19 of the Act. As Swinton, J. noted in National Ballet of Canada v. Glasco,[^12] “it is only where the refusal of cross-examination interferes with the ability of a party to address key issues or essential elements of its case that the courts have found a denial of fairness or natural justice by an administrative tribunal.”

[98] The Arbitrator established a specific procedure for the purpose of determining the composition of the membership list. The question really is whether the procedure established by the Arbitrator treated the parties equally and gave each an opportunity to present their case and respond to the other parties’ cases.

[99] The specific procedure established by the Arbitrator to address the membership issue was set out in a Memorandum from the Arbitrator to the parties’ respective lawyers dated January 11, 2008. The Memorandum references an agreement between the parties that the procedure would be as follows:

(a) The Membership List was to be finalized by January 24, 2008;

(b) The parties had already, by January 11, 2008, exchanged the list of persons they wished to be included in the Membership List;

(c) Each counsel would exchange, and provide to the Arbitrator by January 15, 2008 at 9:00 p.m., a list of objectionable names contained in the lists submitted by the other two counsel;

(d) Each counsel would provide written materials in support of the reasons why the persons he proposed to be included should be included if they had been objected to by another party. These lists were to be provided by January 22, 2008 at 1:00 p.m.;

(e) Oral submissions could then be made in person at a hearing to be held at the office of the Arbitrator on January 24, 2008 at 3:00 p.m. It was expressly agreed that if sworn affidavits were to be submitted in the materials, that the originals of such affidavits were to be made available for inspection at the hearing.

[100] Certainly, on the face of it, each party was treated equally and each party was given an opportunity to present evidence and respond to the evidence of the other parties. According to the Affidavit of Nancy Henry, an executive director of Hospice Vaughan, sworn February 15, 2008, the Affidavit of Ms. Di Maio was delivered by the January 22, 2008 deadline.

[101] The parties proceeded to the Arbitration hearing on January 24, 2008. The Applicants did not object to the filing of Ms. Di Maio’s affidavit nor did they seek to file any affidavit evidence in response to it regarding the disputed members, even though they would have known by January 15, 2008 who those disputed members were. They did seek to file other additional materials at the outset of the hearing which were admitted by the Arbitrator, over the protests of the Respondents.

[102] The Applicants did not request an adjournment of the hearing on January 24, 2008 nor did they make a request to cross-examine Ms. Di Maio on her affidavit until half way through the hearing. The explanation offered is that the Applicants did not believe that the affidavit would be relied upon and it was only when, to their surprise, it appeared the affidavit was being relied upon by the Arbitrator that they decided to ask for the opportunity to cross-examine on it. In other words, they made a judgment call to proceed without cross-examination. They tried to change their tact once they realized that perhaps the judgment call was not the best one they could have made. This is certainly not a compelling reason to question the correctness of the Arbitrator’s decision.

[103] The Arbitrator held that the cross-examinations would create a real possibility of the delay of the election meeting scheduled for February 20, 2008 and on that basis, and in consideration of the manner in which the request to cross-examine was made, the request was denied.

[104] On January 25, 2008, the Applicant’s counsel sent an email message to the Arbitrator indicating that he had already cross-examined Ms. Di Maio on exactly the same points raised in her latest affidavit (emphasis mine) when he completed a cross examination of her on her affidavit filed in the original application. Excerpts from the transcript of the previous examination were sent to the Arbitrator with a request that he reconsider his award. These transcripts were not provided to the Arbitrator as part of the materials relied on by the Applicants at the hearing on January 24, 2008 even though they were available at that time. Nevertheless, the Arbitrator reviewed the materials and they did not persuade him to change his mind about the membership list.

[105] The determination of the membership list was, in my view, a factual issue and it is not now open to this Court to interfere with the determination of which parties were identified, on the facts before the Arbitrator, as meeting the membership categories specified in the Judgment.

[106] I am satisfied that, on the basis of the record before the Court, there was no error in law made by the Arbitrator either when he accepted the Affidavit or when he refused to permit cross-examinations. In any event, as Mr. Goldman indicated, Ms. Di Maio had already been cross-examined on exactly the same issue and the transcript of that examination was made available to the Arbitrator for review. I can not see how the Applicants were prejudiced under the circumstances. They had a fair and reasonable opportunity to address key issues or essential elements of their case. There was no denial of fairness or natural justice.

(iii) The Media Issue:

[107] The next error alleged by the Applicants is the Arbitrator’s decision not to allow them to respond in the media to statements made to the press by the Respondents. There is no question that the statements made by Ms. Di Maio were wrongful.

[108] The issue of the wrongful press statements was reviewed by the Arbitrator in his February 5, 2008 ruling. The Applicants asked the Arbitrator to postpone the election hearing and to allow them to respond in the media to comments made by the Respondents. They argued that they had been damaged and that they needed to respond to “level the playing field”.

[109] The Arbitrator found that Ms. Di Maio had made continuous efforts to unfairly prejudice the conduct and outcome of the election meeting. She circumvented the Judgment and the rulings of the Arbitrator.

[110] The Applicants sought and were granted an award disqualifying Ms. Di Maio from attending the election, from voting in person or by proxy and from being a proxy holder for any other voters.

[111] The Applicants were not satisfied with the Arbitrator’s ruling and on February 19, 2008 they brought a motion to amend the Judgment of Justice Sosna. In my view, the February 19th motion was, in essence, an appeal of the rulings of the Arbitrator with respect to the membership list matter and the medial issue.

[112] The February 19, 2008motion was heard by Justice Sosna and he made a finding that the Respondents had undermined both the letter and spirit of his original Judgment. He fashioned the following remedy:

(a) he postponed the election to March 18, 2008;

(b) he provided for a question and answer period to be held at the election and moderated by the Arbitrator, prior to the vote;

(c) a copy of the Order was to be translated into Italian and copies of the Order – both English and Italian versions – were to be mailed to each member originally invited to attend the election meeting;

(d) he expressly provided that the rulings and the award of the Arbitrator dated February 13, 2008 would remain in force and effect.

[113] The Applicants have, by virtue of the February 19 hearing, had an opportunity to appeal the rulings of the Arbitrator. They obtained relief in terms of how any unfair use of the press could be remedied. In all other respects the Arbitrator’s rulings were confirmed. In my view they have no further right to another review of the same issues. Even if they did have a right to a further review, I would have to be prepared to find that not only did the Arbitrator err in the manner in which he dealt with the media issue, but that Sosna, J. had erred as well. Such a finding is not warranted. I note that no appeal was taken of the February 19, 2008 order.

[114] While I understand why the Applicants are unhappy about the media issue, I have not been made aware of what specific legal error they are alleging and I am not persuaded that there was any such error.

(iv) The Election Irregularities:

[115] The Applicants have referred to numerous irregularities they claim the Arbitrator permitted before and during the election. The alleged irregularities relate, generally, to purported errors in the number and counting of ballots, to the use of proxies, to the times allotted to speakers and to the times allowed for the completion of ballots, amongst other things.

[116] There are factual disputes in terms of what happened at the election. It is not the function of this court, in the course of an appeal, to make findings of fact. In any event, appeals are only available to the Applicants, if at all, on issues of law alone. The Applicants have not identified any legal errors the Arbitrator made in relation to the conduct of the election. Moreover, in my view, the election was not an arbitral hearing, nor were there any awards made by the Arbitrator during the election that might form the subject matter of an appeal.

[117] The Arbitrator was appointed by Justice Sosna to chair the election meeting. The Arbitrator was not acting in the capacity of an arbitrator during the meeting, but rather as a chairperson of the meeting. Any decisions made in the course of that meeting are not, in my view, caught by the Act.

(d) Should the Election Results be Set Aside on Other Grounds?

[118] The Notice of Application asks for an Order setting aside the results of the Election Meeting. As I indicated above, the Notice fails to set out the grounds for the relief sought. It is not clear to me, from reviewing the Notice, therefore, on what grounds the Applicants rely in terms of the request to set aside the election results.

[119] The Applicants’ Factum contains four paragraphs on the point which, summarized, suggest that the alleged procedural irregularities go to the very heart of the election and render it a nullity.

[120] The Applicants rely on the decision of Lederer, J. in Warriors of the Cross Asian Church v. Masih[^13]. Their argument is that the irregularities they point to in the election process are so fundamental as to go to the very heart of the election, rendering its results unreliable and unfair.

[121] The decision in Warriors of the Cross follows the decision in Lee v. Lee’s Benevolent Assn. of Ontario[^14] where Nordheimer, J. held that “absent some demonstrated evidence that any irregularities went to the heart of the electoral process or lead to a result which does not reflect the wishes of the majority, the court should be loathe to interfere in the internal workings of such groups.”

[122] In my view, the Court in the circumstances of the case at bar should be particularly loathe to interfere in the results of the election in view of the following circumstances:

(1) The election process was established in accordance with the Judgment of Sosna, J. of this Court;

(2) Any disputes regarding process leading up to the election were dealt with, on consent, by the Arbitrator and, in some circumstances, under the review of Justice Sosna;

(3) Counsel to the competing groups of interested parties were present at and assisted in overseeing the election; and,

(4) The election itself was overseen and chaired by the Arbitrator, an entirely independent and objective third party.

[123] The Applicants point to the following irregularities, as going to the heart of the election:

(i) They say there is a discrepancy of 9 votes on the scrutineers’ reports, in particular that 131 votes were cast but only 122 members attended or gave proxies;

(ii) They say there was inadequate security on election night and that some people got into the election who should not have been there;

(iii) They say one individual was given 5 ballots too many, however, I could not locate any evidence of this allegation in the materials filed by any of the parties;

(iv) They say Ms. Masci was given 15 minutes to fill in her ballots (she was a proxy holder for a number of other members), when she should only have been given 5 minutes; and,

(v) They say that confidentiality of voting was not maintained as some people were allowed to fill in their ballots in their seats, even though there were two confidential voting booths available.

[124] The Applicants filed a number of short affidavits from individuals who attended the election on March 18, 2008 and who testified as to having seen a number of individuals at the election who they did not recognize. I do not know how such information is helpful to me. There was clearly a membership list determined by the Arbitrator. The parties established a reasonable process for distributing ballots at the election. There were some six scrutineers working the election – half of whom were appointed by the Applicants and half by the Respondents. They worked in pairs at three tables. Each pair consisted of one party appointed by the Applicants and one party appointed by the Respondents. The scrutineers checked those attending the meeting, with or without proxies, against the membership list and provided ballots only to those entitled to vote in person or by proxy.

[125] In support of the irregularities argument, the Applicants filed an affidavit from one of Hospice Vaughan’s scrutineers, Ms. Stefania Bucciarelli. Her affidavit is unusual in that it refers to a number of possible issues of concern, but she prefaces those concerns by saying that she was busy on election night and was unable to determine how the issues of concern were handled. She identified the issues of concern as follows:

1. She and her scrutineering partner found one non-member had a form designated to a proxy-holder. Presumably, no ballot was permitted in that instance. This does not strike me as an irregularity;

2. She found two members who did not know that proxies had been assigned on their behalf. This might be a matter worthy of investigation, but without further evidence, it is not conclusive of anything;

3. Many proxy holders held multiple proxy ballots, but appeared to have no notation with regard to the wishes of their assigned member. This is not, in my view, an irregularity;

4. She found that some of the proxy ballots distributed at one of the other scrutineering tables were incorrectly marked as member forms. Some of these, she deposed, were later corrected, but she does not know if all were corrected. In my view this is, at most, a minor irregularity;

5. She found keeping track of the proxies distributed to individual proxy holders was a challenge, nevertheless she and her fellow scrutineer were able to improvise and get by. I do not consider this evidence of an irregularity;

6. Finally, she identified two minor concerns with ballot tallying that do not, in my view, amount to evidence suggestive of even a minor irregularity.

[126] Mr. Nick Montagnese was Ms. Bucciarelli’s scrutineering partner. He filed an affidavit deposing that they worked a table covering members whose names began with “E” to “O” . No ballot was given out from their table without Ms. Bucciarelli’s initials on it. There were no disputes or concerns raised by Ms. Bucciarelli during the course of the election regarding proxy forms, proxy ballots, registration or security. Mr. Montagnese’s affidavit was not otherwise inconsistent with what Ms. Bucciarelli had to say in her affidavit.

[127] Mr. Bruno Serrecchia was the head scrutineer. He filed an affidavit which contained the following details regarding the election process:

• The scrutineers met with the Arbitrator at 5:30 p.m and received thorough instructions;
• Mr. Carter, his assistant, Ms. Mann, and all three counsel involved in this proceeding were in attendance at the election and available if concerns arose. None did;
• No party challenged any of the proxies that were presented;
• An initial statement was made by the Arbitrator at the election meeting, followed by a question and answer period;
• Voting then proceeded and four of the scrutineers took the ballots to a separate room to count them;
• No party raised a concern at the election in terms of how it had been conducted or with the results; and,
• Nine directors were elected. The 10th place candidate had 16 less votes than the 9th place candidate.

[128] From a procedural point of view, therefore, there were no irregularities identified by the Applicants in their evidence that appear to me to be of a significant nature, and certainly none that could be described as going to the heart of the election.

[129] Interference with the proxy system was alleged by the Applicants, but there is insufficient evidence of tampering to support a finding of an irregularity going to the heart of the election.

[130] One affidavit filed by the Applicants – that of Vittoria Giovennetti dated March 25, 2008 – indicated that the deponent had received a telephone call from an Antonietta Cataneo, who advised that she was an employee of Ms. Di Maio’s and had been threatened with a loss of employment if she did not sign a proxy in favour of Ms. Masci. Ms. Cataneo, however, swore her own affidavit on March 26, 2008 denying that she had been threatened with a loss of her employment should she not provide a proxy. She was a member entitled to vote at the election and in fact she deposed that she did give a proxy to a third party, namely Antonietta Pelusa. Again, I am not sure how the evidence relating to Ms. Cataneo is helpful one way or the other.

[131] The report of the head scrutineer does indeed identify a discrepancy of 9 votes, as pointed out by the Applicants. The discrepancy has not been explained by either side. It may be the result of an irregularity, or there may be a perfectly good explanation for it. I simply do not know. At the end of the day, however, those 9 votes would not have affected the election results, since there was a 16 vote difference between the 9th and 10th place finishers. The discrepancy can not, under the circumstances be considered a significant irregularity going to the heart of the election.

[132] The security issue is also a minor one. The only evidence offered was that one individual, a Mr. Borgo, was present when he should not have been. It appears he accompanied his wife to the election. There is no other evidence to suggest he interfered with the election in any fashion.

[133] Similarly there is no evidence to suggest that the other complaints raised by the Applicants, namely the additional time allotted to Ms. Masci to fill in her ballots and the limited use of the voting booths, affected the process or the outcome of the election in any material way.

[134] The Applicants have not produced demonstrated evidence that the alleged irregularities were significant or went to the heart of the electoral process or that the views of the majority have not been expressed.

VI. CONCLUSION:

[135] I raised a question with counsel as to whether or not they were of the view that the application could be dealt with on a final basis at this point, despite the somewhat conflicting affidavits filed. All parties agreed that the matter could be dealt with in a final way.

[136] In my view, the conflicts in the evidence are relatively minor. The Applicants have not, on their own evidence, persuaded me that there were irregularities in the course of the election that even come close to meeting the threshold required to set aside the election results. It appears to me that the election was conducted in circumstances of heightened sensitivities and super-vigilance and that any minor irregularities here have been inflated. The Applicants were ready with a motion to set the election results aside even before the ink on the ballots was dry, which suggests to me that their sense of injustice has more to do with the result than the process.

[137] The ongoing works of Hospice Vaughan are handcuffed pending the determination of this Application. In this instance, there is an urgency to the resolution of the matter that, in all the circumstances, warrants dealing with it on a final basis at this time. In my view, the overarching concern in this case is bringing peace and stability to Hospice Vaughan. Only when this dispute is concluded on a final basis will the Hospice be able to fully focus its efforts on providing the essential services it has come to be known for. The communities of Vaughan and Woodbridge need those services and accordingly I intend to make a final Order at this time, with a view to bringing an end to the ongoing dispute.

[138] In conclusion, I am not satisfied that there is any basis to interfere with the results of the election on March 18, 2008. I have found as follows:

1. Judicial review is not available to the Applicants with respect to the arbitral awards in this case.
2. The Applicants have a right of appeal under the Arbitration Act, however, they were out of time with respect to the commencement of the appeal, save for the March 7, 2008 award.
3. Even if the appeal were considered I would dismiss it for the reasons set out above.
4. There were no irregularities in respect of the election process itself that would justify setting aside the election results, compelling the parties to hold another election.
5. Given the fact that I have disposed of all the relief requested on a final basis, there is no need to address the issue of the interlocutory injunctive relief sought.
6. There will be no interference with the awards of the Arbitrator. The election results will stand and the Board of Directors of Hospice Vaughan will consist of the nine parties elected on March 18, 2008 until the next election is called in accordance with the charter of Hospice Vaughan.

[139] If the parties are unable to agree on the issue of costs, they may arrange a telephone conference call with me to establish a process to address the issue.

Boswell, J.

DATE: June 18, 2008.

[^1]: S.O. 1991, c. 17

[^2]: Applicant’s Factum, paragraphs 77-79

[^3]: R.S.O. 1990 c. J.1

[^4]: Kucyi v. Kucyi, 2005 48539 (ON SCDC), [2005] O.J. No. 5626 (Ont. Div. Ct.); Rea International Inc. v. Muntwyler, [2005] O.J. No. 3128 (C.A.)

[^5]: S.O. 1995, c. 1

[^6]: 2007 ABCA 295; (2007) 286 D.L.R. (4th) 129; [2008] 3 W.W.R. 588 (Alta. C.A.)

[^7]: Freeman-Maloy v. York University, 2004 4349 (ON SCDC), [2004] O.J. No. 3123 (Ont. S.C.J.)

[^8]: Housen v. Nikolaison, 2002 SCC 33, [2002] 2 S.C.R. 235; 869163 Ontario Ltd. v. Torrey Springs II Associates Limited Partnership, 2004 66298 (ON SC), [2004] O.J. No. 4673

[^9]: [1995] O.J. No. 3021.

[^10]: R.S.O. 1990 c. S.22

[^11]: Arbitration Act, S.O. 1991, c. 17, s. 20

[^12]: (2000) 2000 22385 (ON SC), O.J. No. 2083 (Ont. S.C.J.)

[^13]: (2007), 2007 41440 (ON SC), 87 O.R. (3d) 169 (Ont. S.C.J.)

[^14]: (19 March 2004), Toronto (S.C.J.) per Nordheimer, J., confirmed on appeal to Divisional Court, reported at 2005 1072 (ON SCDC), [2005] O.J. No. 194 (Div. Ct.)