Court of Appeal for Ontario

Date: June 24, 2019

Docket: M50283 and M50284 (C66668 and C66669)

Judges: Hourigan, Paciocco and Fairburn JJ.A.

Between

BGOI Films Inc. Applicant (Respondent in Appeal)

and

108 Media Corporation Respondent (Appellant)

Counsel

Jenna Anne de Jong, for the moving party BGOI Films Inc.

Thomas Dumigan, for the respondent 108 Media Corporation

Heard and released orally: June 24, 2019

Reasons for Decision

[1] These are motions to quash two appeals. Counsel to the appellant (respondent on the motions) appeared as a courtesy to the court, but did not respond to the motions.

[2] In the first motion, the applicant says that this court does not have jurisdiction to hear an appeal from a decision refusing leave to appeal from an arbitral award under s. 45(1) of the Arbitration Act, where that refusal is based upon a lack of jurisdiction.

[3] We need not address this issue given that no appeal lies to this court from a refusal to grant leave to appeal where that refusal is based upon the merits. Although the application judge found that he was without jurisdiction to entertain the matter, he went on in any event and decided the matter on its merits, deciding that neither of the questions that he was called upon to decide raised questions of law. No appeal lies from an order granting or refusing leave to appeal on the merits.

[4] Accordingly, we would quash the appeal in the matter of C66668.

[5] The applicant also seeks to quash the appeal in C66669, an appeal from the decision recognizing and enforcing the arbitral award dated December 11, 2017. Section 50(3) of the Arbitration Act deprives a judge of jurisdiction to refuse to enforce an arbitral award except in certain circumstances, none of which apply here. The fact of quashing the appeal in C66668 means that there is no basis upon which to continue this appeal and that the arbitral award must be enforced.

[6] Accordingly, the appeal in C66669 is also quashed.

[7] The appellant 108 Media Corporation shall pay costs to BGOI Films Inc. for both appeals in the aggregate amount of $14,000. We award costs on a higher scale because it is evident that 108 Media Corporation's litigation strategy has been to delay the inevitable, knowing that they had no arguable grounds of appeal. This is a waste of court resources and is worthy of censure by this court.

"C.W. Hourigan J.A."

"David M. Paciocco J.A."

"Fairburn J.A."