Blustein v. Blustein, Kronby, 2011 ONSC 1888

sachs j. (ORALLY)

1This motion is for an order to set aside or vary the order of Swinton J. dated December 8, 2010, in which she quashed Mr. Blustein’s application for judicial review for lack of jurisdiction.

2The applicant’s main submission before us was that Swinton J. erred when she found that the arbitrator in this case was not exercising a statutory power of decision. According to the applicant, by virtue of s.51 and ss. 59.1. to 59.8 inclusive of the Family Law Act, the legislature has made it clear that family law arbitrations are different from other kinds of private arbitrations such as those that may occur in the commercial context.

3In Kucyi v. Kucyi, [2005] O.J. No. 3626, this Court was asked to judicially review a family arbitration award and declined to do so. However, as the applicant points out, the Court did not make a decision on the jurisdictional point before us. Further, this case was decided prior to the enactment of the provisions of the Family Law Act upon which the applicant relies.

4The applicant asserts that s. 51 and ss. 59.1 to 59.8 of the Family Law Act have the effect of conferring a power or right upon a privately appointed arbitrator that constitutes a “statutory power of decision” for the purposes of the Judicial Review Procedure Act. We do not agree.

5These provisions of the Family Law Act prescribe the procedural and substantive requirements of an arbitration in respect of family law matters that must be complied with in order that an arbitral award is enforceable. There is nothing in the Family Law Act that requires the parties to proceed with arbitration and the arbitrator in question was not appointed pursuant to any legislation. Rather, the parties exercised their choice to enter into a private consensual agreement to resolve their dispute outside of the courts. Thus, as Swinton J. correctly found at paragraph 14 of her Decision:

“The source of this arbitrator’s authority was the agreement from the parties to give him authority to resolve their disputes. The fact that he was required to apply various statutes in the course of making an award does not change the fact that he was a consensual arbitrator.”

6Given this, as Swinton J. correctly concluded, the arbitrator was not exercising a statutory power of decision.

7For these reasons, the motion is dismissed.

COSTS

8The applicant has asked us to vary Swinton J.’s award of costs on the grounds that it was excessive. We decline to do so. Costs are a matter of discretion and there is no basis for concluding that Swinton J. made an error in principle when she fixed the costs of the application before her at $7,500.00, plus HST.

9With respect to the motion before us, the respondent, as the successful party, is requesting her partial indemnity costs fixed in the amount of $6,332.35, inclusive of disbursements. The applicant submits that no order for costs should be made because this was a novel point of law that had not been settled in the jurisprudence.

10In our view, in these circumstances, there is no reason to deny the respondent her costs of the motion. Further, the costs claimed are reasonable. Therefore, I have endorsed the Motion Record as follows, “This motion is dismissed for reasons given orally on behalf of the panel by Sachs J. The applicant shall pay to the respondent her costs of this motion fixed in the amount of $6,322.35, all inclusive. These costs are payable within 30 days.”