CITATION: Universal Settlements Int’l Inc. v. Duscio, 2011 ONSC 41
DIVISIONAL COURT FILE NO.: 611/10
DATE: 20110104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, SWINTON AND LEDERER JJ.
BETWEEN:
UNIVERSAL SETTLEMENTS INTERNATIONAL INC., THE BROKERWISE GROUP INC. and 1508211 ONTARIO INC.
Claimants
(Respondents)
– and –
ANTONIO DUSCIO and MARTINA CAPITAL CORPORATION
Respondents
(Applicants)
William McNamara and
John M. Picone, for the Claimants (Respondents)
Kevin D. Sherkin and Andrew O’Brien, for the Respondents (Applicants)
HEARD at Toronto: January 4, 2011
SWINTON J.
[1] This application comes before the Divisional Court by order of Chapnik J., sitting as a Superior Court Judge, dated November 26, 2010. In this application, the applicants seek relief under the Arbitration Act, S.O. 1991, c.17 and by way of judicial review under the Judicial Review Procedure Act, R.S.O. 1990, c.J.1 (“JRPA”) with respect to awards made by an arbitrator appointed in accordance with a Shareholders’ Agreement and an Arbitration Agreement. The motion judge ordered that all the matters be dealt with together by this Court.
[2] This Court has no jurisdiction to deal with this application for two reasons.
[3] First, the Divisional Court has no jurisdiction to grant relief under the Arbitration Act. The Act clearly states that applications to challenge an arbitration award under that Act must be brought before the Superior Court of Justice or the Family Court in the case of family arbitrations (see ss. 45 and 46, as well as the definition of “court” in s.1). The Divisional Court has appellate jurisdiction pursuant to s.19 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as well as the authority to grant judicial review pursuant to s.6(1) of the JRPA. In addition, a number of other statutes confer appellate jurisdiction on this Court. However, it has no authority to grant the type of relief sought under the Arbitration Act, as it does not fall within the definition of “court” for purposes of ss. 45 and 46 of the Arbitration Act.
[4] Section 6 of the Act does not confer power on the Divisional Court to review or set aside an arbitration award. As the Court of Appeal stated in Inforica Inc. v. CGI Information Systems and Management Consultants Inc., [2009] ONCA 642 at para. 14:
It is clear from the structure and purpose of the Act in general, and from the wording of s. 6 in particular, that judicial intervention in the arbitral process is to be strictly limited to those situations contemplated by the Act.
The authority to review an award is not found in s. 6 but is found elsewhere in the Act.
[5] Second, the Divisional Court has no jurisdiction to award the relief sought under the JRPA against a private consensual arbitrator. Subsection 2(1) provides that the Court, on judicial review, may grant relief that the applicant would be entitled to in proceedings by way of an application for an order of mandamus, prohibition or certiorari or proceedings in an action for a declaration or injunction in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power of decision. An application for judicial review is thus a public law remedy, and it is not available to challenge the award of a private consensual arbitrator (see Sharecare Homes Inc. v. Cormier, [2010] N.S.J. No. 367 at para. 51; Alaimo v. Di Maio, [2008] O.J. No. 3570 (S.C.J.) at paras. 53 and 58; Blustein v. Blustein, 2010 ONSC 6897 (Div. Ct.)).
[6] Even if this Court had jurisdiction to grant judicial review, we would exercise our discretion not to do so in this case, as the applicants have an adequate alternative remedy to challenge the arbitrator’s awards under the Arbitration Act (see Kucyi v. Kucyi, 2005 48539 (ON SCDC), [2005] O.J. No. 5626 (Div. Ct.)).
[7] For these reasons, the application for judicial review is quashed and the balance of the relief sought is referred to the Superior Court of Justice.
FERRIER J.
[8] I have endorsed the Application Record (Volume 1): “The application for judicial review is quashed, for oral reasons delivered this day. The balance of the relief sought is adjourned to the Superior Court for oral reasons delivered. Costs fixed at $7,500, payable forthwith. Balance of relief sought is adjourned to the Superior Court to be heard on January 18, 2011.”
SWINTON J.
FERRIER J.
LEDERER J.
Date of Reasons for Judgment: January 4, 2011
Date of Release: February 4, 2011
CITATION: Universal Settlements Int’l Inc. v. Duscio, 2011 ONSC 41
DIVISIONAL COURT FILE NO.: 611/10
DATE: 20110104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, SWINTON AND LEDERER JJ.
BETWEEN:
UNIVERSAL SETTLEMENTS INTERNATIONAL INC., THE BROKERWISE GROUP INC. and 1508211 ONTARIO INC.
Claimants
(Respondents)
– and –
ANTONIO DUSCIO and MARTINA CAPITAL CORPORATION
Respondents
(Applicants)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: January 4, 2011
Date of Release: February 4, 2011