CITATION: T. Films S.A. v. Cinemavault Releasing International Inc., 2015 ONSC 937
DIVISIONAL COURT FILE NO.: 358/14 DATE: 20150210
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEDERMAN, SACHS AND LEDERER JJ.
BETWEEN:
T. FILMS S.A., FUTURE FILMS (THREE) LIMITED and THEMA PRODUCTION S.A.
Applicants
(Respondents in Appeal)
– and –
CINEMAVAULT RELEASING INTERNATIONAL INC., CINEMAVAULT.COM INC., CINEMAVAULT INTERNATIONAL INC. and NICOLAS STILIADIS
Respondents
(Appellants)
Robert B. Cohen, for the Applicants (Respondents in Appeal)
Harvey S. Dorsey, for the Respondents (Appellants)
HEARD at Toronto: February 10, 2015
ORAL REASONS FOR JUDGMENT
SACHS J. (ORALLY)
[1] The appellants appeal an order dated July 9, 2014, in which Brown J. dismissed their motion seeking to stay the respondents’ application against them in favour of arbitration pursuant to an arbitration clause contained in the applicable Sales Agency Agreement.
[2] The motion judge dismissed the motion for stay on two bases, one of which was that Article 8(1) of the Model Law requires a party who requests that a matter be referred to arbitration to make that request “not later than when submitting his first statement on the substance of the dispute.”
[3] The appellants argue that their first opportunity to make the request for arbitration only occurred after they received the respondents’ factum on March 25, 2014. Accepting that position, the reality is that when the appellants filed their responding factum on April 2, 2014, which is certainly a comprehensive statement on their part on the substance of the dispute, the appellants made no request that the matter be referred for arbitration. Rather, the section marked “Relief Requested” in the appellants’ factum requested three alternative forms of relief:
(i) that the application be dismissed with costs;
(ii) that the application be converted to an action; and
(iii) that the application proceed by way of trial of issues.
[4] On this basis alone, the appellants failed to meet the requirements for a stay under Article 8(1) of the Model Law.
[5] However, we also note, that if this matter had been referred to arbitration, only one issue involving the dormant appellant would have been the subject of that arbitration.
[6] The other issues, which were numerous and involved the non-party related entities, would have had to be determined by way of a Court application. In Shaw Satellite G.P. v. Piechenhagen, 2011 ONSC 4360, aff’d 2012 ONCA 192, the Ontario Court of Appeal upheld a motion judge’s decision refusing to grant a partial stay of an action on the basis that to do so would result in “multiplicity of proceedings, duplication of resources, inefficiency, increased costs and delay.” (See para. 16 of the Court of Appeal decision). The same considerations applied here.
[7] For these reasons, it is our view that the appeal should be dismissed.
[8] While not necessary to this decision, we do wish to express a concern about the fact that this appeal may be moot given Penny J.’s decision on the merits of all of the issues in dispute, which decision is presently being appealed to the Divisional Court.
LEDERMAN J.
COSTS
[9] I have endorsed the Appeal Book, “This appeal is dismissed for oral reasons delivered by Sachs J. Counsel have agreed that costs of the appeal be fixed at $8,500, all inclusive, payable by the appellants jointly and severally.”
SACHS J.
LEDERMAN J.
LEDERER J.
Date of Reasons for Judgment: February 10, 2015
Date of Release: February 12, 2015
CITATION: T. Films S.A. v. Cinemavault Releasing International Inc., 2015 ONSC 937
DIVISIONAL COURT FILE NO.: 358/14 DATE: 20150210
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, SACHS AND LEDERER JJ.
BETWEEN:
T. FILMS S.A., FUTURE FILMS (THREE) LIMITED and THEMA PRODUCTION S.A.
Applicants
(Respondents in Appeal)
– and –
CINEMAVAULT RELEASING INTERNATIONAL INC., CINEMAVAULT.COM INC., CINEMAVAULT INTERNATIONAL INC. and NICOLAS STILIADIS
Respondents
(Appellants)
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: February 10, 2015
Date of Release: February 12, 2015