Court File and Parties
COURT FILE NO.: CV-19-619030 DATE: 20190521 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NATALIA LOBANOVA, DMITRI PETROV, and VENTUS CONSULTING INC. Applicants – and – ANDRII GRYNYSHYN and SANIIA AGISHEVA a.k.a. SANIIA SATANOVSKA Respondents
Counsel: Brian Illion, for the Applicants Vladimira M. Ivanov, for the Respondents
HEARD: May 17, 2019
F.L. Myers J.:
Reasons for Decision
The Motion
[1] The applicants move for an urgent interlocutory injunction or stay prohibiting arbitrator Joel Richler from hearing any further proceedings between the parties pending the determination of the application for leave to appeal from the arbitrator’s award dated April 1, 2019. The application for leave to appeal will be heard in the Superior Court on August 19, 2019.
[2] The applicants wish to prevent the arbitrator from resolving two final issues left for resolution under para. 144(c) of the award concerning how HST is to be dealt with among the parties. In his Procedural Order No. 2 dated May 9, 2019, the arbitrator has scheduled one of the HST issues to be heard by him on May 29, 2019.
[3] Unless stayed or enjoined, the applicants’ written submissions for the May 29th hearing were due to be delivered by 5:00 p.m. on May 17, 2019 under Procedural Order No. 2. The applicants served this motion for an interim injunction on May 16, 2019 after 11:00 p.m. Counsel were heard in CPC in the morning of the 17th and the matter was referred to me.
[4] As the applicants’ submissions to the arbitrator were due in just a matter of hours, counsel urgently required a hearing and resolution of the motion. Therefore, after hearing counsel I delivered a handwritten endorsement that is set out in final paragraph below dismissing the motion with reasons to follow. These are my reasons for dismissing the motion.
The Procedural and Factual Background
[5] By statement of claim dated November 20, 2017, the applicants sued the respondents in the Superior Court in Milton. The applicants claimed that they were the beneficial owners of a 50% interest in a residential property in Oakville. Legal title to the property in issue is registered in the respondents’ names. The applicants claimed that the two sides had entered into a business relationship to buy and redevelop the property. The applicants claimed that under the terms of the arrangements among the parties, they were entitled to partition, sell, and share in the proceeds of sale of the property.
[6] The respondents defended and counterclaimed with their own assertions as to the deal terms and the appropriate financial outcome.
[7] In January, 2018, the property was sold. On consent, proceeds of $2,410,573.92 were paid into court to await the outcome of the litigation.
[8] On September 24, 2018, the parties appointed Mr. Richler to arbitrate the disputes in their litigation. The key issue for arbitration was the proper allocation among the parties of the proceeds of sale being held by the court.
[9] The arbitration hearing was held very quickly on several days in December, 2018. The arbitrator delivered his award on April 1, 2019. In the main, the respondents succeeded in the arbitration.
[10] As the parties had not documented their relationship formally, the arbitrator had to determine the terms of their agreement as they related to several specific claims. For example, the respondents resided at the property from November, 2016 until June 2017. The applicants’ claimed occupation rent from the respondents. The arbitrator ruled against the applicants on that aspect of their claim. He also dealt with the applicants’ claims relating to the respondents’ alleged failure to account properly for construction expenses.
[11] The parties recognized that the HST treatment of the sale of the property would have a significant effect on the net amount of proceeds remaining available to the parties and the allocation of the sale proceeds. Both parties called expert evidence on the likely HST treatment of the sale as part of their respective cases in the arbitration hearing. The parties had hoped that the sale transaction would be exempt from HST because the respondents had briefly lived at the property as mentioned above. However, the experts called for both parties agreed that, despite the parties’ efforts, the redevelopment project was “an adventure in the nature of trade” to which HST was likely applicable. The respondents’ expert calculated that the HST would be approximately $540,000 less applicable input tax credits of approximately $36,000, leaving net tax owing of $504,434.41. The applicants’ expert opined that additional ITCs might be available to reduce the net tax owing on further production of expense documentation.
[12] At para. 107 of the award, the arbitrator records that the applicants argued that they should not have to bear the any portion of the HST. He also noted that they “do not argue that the Property should be properly characterized as a principal residence, or that the CRA would likely accept that designation.” [Emphasis added.]
[13] At para. 109 of the award, the arbitrator noted that while he could not determine if HST was actually due, he had to make some tentative findings for the purposes of allocating the funds in court. Based on both experts’ opinions, he found that “it is highly probable that the parties have to pay HST on the sale of the Property.” He accepted the uncontradicted evidence of the respondents’ expert quantifying the tax at $504,434,41.
[14] The arbitrator also found that under the terms of the parties’ agreement, the HST liability was to be shared equally. This presented a practical problem. The parties each file their own tax returns. To properly allocate the HST, the parties have to cooperate on filing their tax returns so that each claims the correct amounts of the tax and ITCs; to preserve and perhaps enhance ITCs available; and to ensure that the CRA did not have recourse against any of them due to the failure of one or more of the others to pay their proper share of the HST. Being parties in litigation, the arbitrator noted their mutual concern and distrust. He therefore determined in paras. 112 and 144(c) of the award that the parties would have 20 days to confer and try to agree on how to deal with their HST filings. If the parties could not agree, counsel were required to arrange a further one-day hearing to deal with the questions of: (a) whether the arbitrator had jurisdiction to make a further award concerning the parties’ tax filings; and (b) if so, the terms under which further HST issues will be determined. The arbitrator allocated the rest of the funds that were being held in court and held that the sum of $504,434.41 was to remain in court until the parties had agreed on how to deal with HST or he had ruled on the issue.
[15] The arbitrator raised the issue of his jurisdiction to rule on the parties’ tax filing processes of his own motion.
[16] Shortly after the award was released, the applicants retained their current counsel. Rather than meeting and conferring on HST as required, on April 17, 2019 Mr. Illion advised the respondents’ counsel that his clients were seeking leave to appeal from the arbitrator’s’ award. Mr. Illion also told counsel for the respondents that it was the applicants’ position that the arbitrator had no jurisdiction to make the award on HST that he made. A fortiori they contest his jurisdiction to hear the further issues about the parties’ tax returns (given that they argue that he had no jurisdiction to consider the likely HST treatment of the sale in the award at all).
[17] Personal income tax returns and payments for taxation year 2018 (in which the property was sold) were due on April 30, 2019. Knowing that the applicants now contest the arbitrator’s jurisdiction to deal with the $504,434,14 in court, the respondents moved to a judge in Milton for payment of the funds out of court to pay the tax by April 30. The applicants opposed the motion and argued that only the arbitrator could allow the funds out of court even though they challenge his jurisdiction to deal with the HST issue further or at all. The motion was adjourned.
[18] On May 6, 2019, the arbitrator held a case conference by telephone to schedule the hearing of the remaining HST issues. He accepted Mr. Illion’s submission that he should hear the two issues separately. In that way, if the arbitrator determines that he does not have jurisdiction to deal with how the parties file their tax returns concerning HST, they will not need to incur the time and cost of the proposed second issue concerning the merits of the issue. During the case conference, Mr. Illion argued that resolution of the remaining HST issues was not urgent; that he needed time to get up to speed on the file; that he was pressed to meet the leave to appeal deadlines in the arbitration and an appeal deadline in an unrelated case in which he was acting; that he had to keep some time open as he had committed a block of time for scheduling possible hearings before the Workplace Safety and Insurance Appeal Tribunal, and therefore he asked for a hearing date no earlier than June 13, 2019.
[19] During the ensuing discussion, Mr. Illion says that the arbitrator referred to his request as “indulgent” and, as a result, Mr. Illion lost his temper and raised his voice. The arbitrator records that he ended the call because of Mr. Illion’s “intemperate conduct”.
[20] On May 8, 2019 Mr. Illion wrote to the arbitrator to apologize for raising his voice during the scheduling call. He went on to explain that he is under stress as a result of issues in his family life as well as a spike in his workload. He then made several allegations of misconduct against the arbitrator essentially asserting that during the conference call the arbitrator had pre-judged the issues; was helping the respondents’ counsel; was not even-handed; and had ignored Mr. Illion’s scheduling concerns. The arbitrator responded in a separate letter refuting Mr. Illion’s characterizations.
[21] On May 9, 2019, the arbitrator released Procedural Order No. 2. He noted that in the award he had given the parties 20 days to resolve the HST implementation issues themselves. He also referred to the goals of efficiency and fairness that underpin the tribunal’s authority to set its own procedure set out in ss. 19 and 20 of the Arbitration Act, 1991.
[22] After reciting the parties’ arguments, including Mr. Illion’s personal and work-related concerns, the arbitrator held:
In my view, the scheduling submissions made by Mr. Illion are inconsistent with the provisions of the Act cited above, inconsistent with the Terms of Appointment to which the parties agreed, inconsistent with the general principle that arbitrations are to proceed efficiently, and inconsistent with the intention of the sections of the Award that contemplated further submissions on the HST issues. I accept that, by now, Mr. Illion should be in a position to fully articulate his jurisdiction objection and to make submissions in relation thereto relatively soon. During the scheduling call, Mr. Illion stated that he expected to be able to make his oral submissions on the objection within two hours, such that the objection should be heard in a single day. While I certainly understand and accept that Mr. Illion has personal and other issues that are interfering with his schedule for this arbitration, I cannot ignore that the Respondents, who were the prevailing parties, have a legitimate interest in having the HST issues determined as quickly and as efficiently as possible, having due regard to the interests of the Claimants. I do not accept the argument that this hearing should be deferred until after the determination of an as yet unscheduled application to stay the Award. I also do not accept that, for some reason, any date that I schedule must be subject to possible WSIAT proceedings.
An important component of Mr. Illion’s submissions is that the scheduling that is now in issue should be determined on the basis of his own personal and professional schedule, and that counsel for the Respondents are being unreasonable and uncivil in ignoring his scheduling issues and personal and professional commitments. I do not agree. In my view, the interest [sic] to be considered are those of the parties, all of whom agreed to arbitrate. Mr. Illion was aware, or ought to have been aware, of those interests when he agreed to accept his retainer to act as new counsel in this matter.
[23] The arbitrator scheduled the hearing of the first HST issue for May 29, 2019. The arbitrator required the applicants to deliver their submissions objecting to his jurisdiction by 5:00 p.m. on May 17, 2019.
[24] By letter dated May 13, 2019, Mr. Illion advised the arbitrator that he had a doctor’s appointment on May 29, 2019. To accommodate Mr. Illion, the arbitrator scheduled the hearing to commence at 11:30 a.m. that day in Procedural Order No. 3 dated May 14, 2019. In his transmittal note for that order, the arbitrator raised a concern that he had yet to receive a deposit towards his fees from the applicants as required under the terms of his engagement. Later that morning he sent a further email requiring urgent responses from counsel concerning the outstanding fee deposits as the arbitrator was about to begin receiving the parties’ materials under Procedural Order No 2.
[25] Mr. Illion responded by email that day:
I requested that you delay scheduling the jurisdiction motion until the stay motion had been considered. I advised that there would be no irreparable harm by accommodating a hearing on June 13th which you chose to ignore. You ignored my advice that I would not be in a position to deliver materials for the jurisdiction objection until May 24, 2019.
[26] Mr. Illion then went on to explain how, in his view, a delay in the proceedings might cause the parties to incur a very small amount of interest and penalties for late tax filings. He continued:
The additional retainer you seek from the parties in order to try to force a hearing with no special urgency will exceed the maximum hypothetical harm that would possibly be incurred prior to the August date presently scheduled for the hearing of the merits of the Application for Leave to Appeal. That does not include the wasted costs to be incurred by the parties if the court stays the HST issues pending determination of the Leave Application such that not only your fees but the fees of counsel to the parties would be thrown away.
I think this might give you some appreciation as to why my clients consider your request for a further deposit in these circumstances is considered [sic] unreasonable. I believe that it is appropriate to please stand down until we have had an opportunity to have the court determine whether your procedural order ought to be stayed. Your ‘order’ today requiring an immediate response not only (again) ignores the fact despite my clear advice to you that I am presently overwhelmed in the near term by professional and personal commitments, further exacerbating the issue.
[27] The arbitrator issued Procedural Order No. 4 on May 14, 2019. He set out the background that led to his setting the schedule for a hearing in Procedural Order No. 2 and continued:
- It bears noting that the Claimants were substantially unsuccessful in their scheduling submissions. In particular, I did not accept that the motions should be deferred until after the claimants proposed court proceedings to stay part of the April 1 Award, I did not accept that motions in this arbitration should be scheduled subject to unrelated WSIAT tribunal proceedings, and I did not accept the liberal or indulgent timetable that the Claimants’ current counsel proposed. Now, by refusing to pay further deposits to secure anticipated arbitration fees and expenses, the Claimants in essence are re-litigating the scheduling issues. Put simply, after receipt of Procedural Order No. 2, the Claimants seek to delay and frustrate the Respondents’ legitimate interest in pursuing determination of the final issues in this arbitration. For reasons stated below, this should neither be tolerated nor permitted.
[28] At para. 9 of Procedural Order No. 4, the arbitrator wrote:
- At some time prior to April 17, 2019, Mr. Brian Illion replaced counsel that had, from the commencement of the arbitration, acted for the Claimants. As indicated in Procedural Order No. 2, Mr. Illion told Respondents’ counsel on April 17, 2019 that his clients objected to my jurisdiction to deal with further HST issues. As far as I am aware, over the last month, Mr. Illion has not provided any particulars or grounds in respect of that proposed objection.
[29] The arbitrator dealt with Mr. Illion’s re-assertion of his scheduling issues as follows:
As to the latter, Mr. Illion in effect argues that the arbitration should stand down based upon considerations that would apply on an injunction application. In particular, he argues that the monetary consequences of late HST filings would not be financially significant, and that the cost of further arbitration proceedings would be wasted in the event that he succeeds in his two stay applications, his motion for leave to appeal and then (if leave is granted to appeal the April 1 Award on a question of law) in the event the Claimants succeed on the ultimate appeal.
As to this argument, I am compelled to balance the interests of the Claimants and the Respondents. All parties have to be treated equally and fairly. By the April 1 Award, I determined that the sale of the Property in issue generated a substantial amount of HST. I also determined that the HST burden was to be borne equally by the Claimants and the Respondents. In my view, the Respondents have a legitimate interest in filing their HST returns and paying the tax amount as close to the filing deadline as possible and without fear that the taxation authority will look to them in the event the Claimants do not pay their share. In my view, it is not simply a matter of calculating the possible interest and penalties that may be imposed in the event of late filing and payment. This is particularly so given the time that will inevitably pass while the Claimants’ proposed court applications proceed through the courts. I should add that the Respondents also have a legitimate interest in having all of the issues in the arbitration determined before any appeal is determined by the courts.
[30] Finally, the arbitrator determined that the schedule set out in Procedural Order No. 2 would continue and he set terms to deal with the possibility that the applicants did not pay the fee deposit as required. Counsel agreed before me that the applicants have since paid the fee deposit required by the arbitrator.
The Applicants’ Motion
[31] The applicants have issued a notice of application seeking leave to appeal from the April 1, 2019 award. They have amended the notice of application to also seek leave to appeal from the arbitrator’s subsequent costs award and to seek a stay pending the hearing of the application for leave to appeal. The applicants have not yet brought an application to challenge Procedural Order No. 2 whether by way of purported appeal or under s. 46 of the Arbitration Act, 1991 or otherwise. In their notice of motion for this motion they seek an injunction or stay preventing further arbitration proceedings pending the hearing of their existing leave to appeal application from the award and the costs decision.
[32] Although they have not brought proceedings to challenge it directly, the applicants submit that Procedural Order No. 2 denies them procedural fairness. Mr. Illion argued that he had submissions due under Procedural Order No. 2 as well as a need to perfect an unrelated appeal both on May 17, 2019. He argued that his schedule was “overwhelmed” and the arbitrator erred imposing Procedural Order No. 2 knowing that Mr. Illion’s personal and professional circumstances left him without sufficient time to prepare. He argued that undue speed increases the risk of error. He pointed to a CRA memorandum from 2009, which is not in evidence, to argue that if the respondents file their HST returns that claim ITCs they could permanently prevent the parties from relying on the personal residence exemption to claim that the sale transaction is not subject to HST. Moreover, he argued that under unspecified sections of the Income Tax Act, it may be that a deemed sale of the property was triggered as early as May, 2016. That would affect the quantum and timing of HST liability, if any, and remove any sense of urgency to meet the 2018 taxation year filing deadline last month.
[33] Mr. Illion argued that there would be irreparable harm if the respondents take steps now to file their tax returns claiming ITCs that preclude the parties from later claiming that the personal residence exemption to HST applies to the sale of the property. He agues that the balance of convenience favours a stay because the effect of any interest and penalties that may be levied against the parties if they are late with their taxes will be small and the HST may have been due two years ago in any event.
[34] Mr. Illion argued that as a result of his having raised his voice to the arbitrator, “the arbitrator chose the date that was harshest to me.” He says that he cannot understand why “such a draconian schedule” would be enforced unless it was due to the arbitrator’s animus against him and an effort to “punish” him. He argued that he “begged” the arbitrator for more time and that he needs a stay in order to make his clients’ submissions.
[35] The applicants rely on s. 50(5) of the Arbitration Act, 1991 which authorizes a stay pending appeal and Mr. Illion refers to s. 22 of the statute that requires the arbitrator to consider the parties’ convenience in setting a schedule.
The Respondents’ Position
[36] The respondents argue that what the applicants truly seek is to have me overrule Procedural Order No. 2 today in that if I stay or enjoin or relieve the applicants from complying with the schedule or stop the May 29th hearing, the order will be effectively be overruled.
[37] The respondents note that the applicants have had since April 17, 2019 to set out the basis for their arguments that the arbitrator lacked jurisdiction to consider HST issues. Moreover, given that both sides called expert evidence at the arbitration hearing precisely on the HST issues arising from the sale of the property, the respondents submit that the applicants’ argument that the arbitrator lacked jurisdiction to deal with HST is specious. Furthermore, while contesting the arbitrator’s jurisdiction, the respondents then opposed an order of a judge to pay the money held in court to the CRA arguing that only the arbitrator could order the payment out. Ignoring for the moment that Rule 72 of the Rules of Civil Procedure requires an order for payment out of court regardless of what an arbitrator may rule, the applicants are both asserting and denying the arbitrator’s jurisdiction at the same time.
[38] The respondents submit that Mr. Illion’s new argument that the personal residence exemption applies or may be at risk if tax returns are filed now ignores the expert evidence led by his clients (and the respondents) at the arbitration to the effect that the personal residence exemption does not apply. Moreover, it is the opposite of the position that the applicants took at the hearing as found by the arbitrator and quoted in para. 12 above.
[39] The respondents submit that, in any event, even if HST were to become due wrongly because an available exemption is lost, that outcome is quantified to the penny ($504,434.14) and therefore there is no irreparable harm.
[40] The respondents also submit that the applicants knew the schedule on May 9, 2019. They had from then until May 17, 2019 to deliver their submissions (that should have been underway since April 17, 2019). Rather than delivering this motion after 11:00 pm on May 16, 2019, Mr. Illion could have been preparing his clients’ submissions for filing on the 17th as ordered.
[41] Finally, the respondents submit that since they are the only parties on title to the property, they alone are at risk of enforcement should the CRA seek payment of HST. They want all issues resolved in the arbitration as soon as possible to decrease their risk and to ensure that all issues are before the court if or when the leave to appeal application is heard.
Analysis
[42] I agree with the respondents’ submissions.
[43] The same legal tests apply to the request for an interlocutory injunction and to an interim stay. In The Select Group of Canada Inc. v. Healy, 2019 ONSC 2860, Cavanagh J. recently set out the applicable tests as follows:
In order to obtain an interlocutory injunction, the moving party must establish that (a) there is a serious issue to be tried (or, in some cases, the plaintiff has a strong prima facie case); (b) the moving party will suffer irreparable harm if the injunction is not granted; and (c) the balance of convenience favours the granting of the injunction: RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CarswellQue 120 at paras. 83-85.
1. There is no Serious Issue to be Tried nor a Strong Prima Facie Case on the Merits
[44] While an assessment of the merits on a stay motion generally presents a low hurdle for a moving party, I do not see any basis for a stay of the schedule pending the hearing of the leave to appeal application.
[45] The leave application is limited to questions of law. I do not see how the arbitrator’s jurisdiction to decide an issue can fairly be challenged by a party who called evidence on the issue and argued the issue without contesting jurisdiction at the hearing. Nor do I accept that a CRA memo about HST exemptions from 2009 that is not in evidence can be relied upon on appeal to argue that the arbitrator erred in holding that the personal residence exemption likely does not apply to the sale of the property when the applicants expressly did not take that position below and they led expert evidence that was directly to the contrary.
[46] The question of whether Procedural Order No. 2 amounts to a breach of procedural fairness likely does raise a serious issue. But, as noted above, that issue is not before me directly as the applicants have yet to bring proceedings to challenge that order under s. 46 of the Arbitration Act, 1991 or otherwise. But, as counsel for the respondents submits, a decision on this motion will finally determine the applicability of Procedural Order No. 2. Where an interim injunction finally resolves the underlying matter, the court will take a harder look at the merits to see if there is a strong prima face case on the merits. Put another way, before I effectively overrule Procedural Order No. 2, I need to consider if the case made against it is very likely to win on appeal or under s.46 of the statute.
[47] While Mr. Illion repeatedly asserts that the arbitrator ignored his scheduling problems, in fact, Procedural Orders Nos. 2 and 4 were both substantial and thorough decisions on the merits. The arbitrator expressly recited Mr. Illion’s arguments and gave cogent reasons as to why he was not ruling in the applicants’ favour despite Mr. Illion’s personal and professional problems. In Procedural Order No. 3, the arbitrator did convenience Mr. Illion where he could do so without prejudicing the parties’ interests as he saw them. Scheduling is a highly discretionary decision. The applicants knew the scheduling issue that they faced. They made their arguments and they did not succeed for reasons that are clear and cogent. I see no strong claim that they have been denied procedural fairness at this time.
2. The Applicants will not Suffer Irreparable Harm in the Absence of an Injunction or a Stay
[48] I also agree with the respondents that what is in issue is whether $504,434.14 is due in HST or not. Damages are not just quantifiable; they are quantified. Therefore, applicants are not at risk of suffering irreparable harm - harm that cannot be adequately compensated by an award of monetary damages - in the event that the arbitrator proceeds and is ultimately overruled on appeal.
3. The Balance of Convenience Favours the Respondents
[49] I do not agree that the balance of convenience favours relief either. First, I agree with the respondents that if I grant relief, I will effectively be overruling Procedural Order No. 2. Second, scheduling orders rarely, if ever, raise appealable issues. Typically, only final orders can be appealed. I am not finding that the issue of procedural fairness can never be heard before a final outcome, but it would be a very exceptional case to justify such premature intervention by a court. In my view, the effect of the schedule in Procedural Order No. 2 will only be known once the hearing is held. Third, I agree with the arbitrator that the court hearing the leave to appeal application will want the full case to be completed before the hearing. The court typically prefers to be fully informed of the arbitrator’s findings and reasons before undertaking a review.
4. The Justice of the Case
[50] It is often useful and important to take a step back to consider the issues in a proceeding on a holistic basis to ensure that one does not lose the justice of the forest in the details of the trees.
[51] In this dispute, the parties agreed to have their court proceedings resolved by arbitration. That was their right. They were heard by the arbitrator very quickly as they wished. One corollary of the parties’ decision to proceed by alternative dispute resolution is that the parties have very limited access to the courts when things do not go as they hope. In my view, a court is not justified in intervening where a new counsel for a party prefers an alternative theory of the case over one that was advanced by the party at the arbitration hearing. A party does not raise an error of law on appeal where it seeks to reverse its position and ignore the evidence it presented at the arbitration. An arbitration is not a test run in which evidence and positions can be tried on for size and then discarded in subsequent court proceedings. The parties opted-out of their court proceedings. Resort to the court after an arbitration is not a do-over. The arbitration is the main event. The court can intervene only on the prescribed grounds set out the Arbitration Act, 1991 none of which is raised on arguments made on this motion.
[52] Mr. Illion’s complaint that the arbitrator is punishing him is also untenable. He is not arguing that the arbitrator should be removed for bias. The argument just hovers in the air. Moreover, in making this argument, he is acting as counsel and witness at the same time. His submissions were laced with his personal unsworn evidence.
[53] While one can sympathize with Mr. Illion’s personal family issues, the arbitrator did not ignore them as Mr. Illion asserts. The arbitrator balanced Mr. Illion’s concerns among the parties’ interests at play and gave thorough reasons for his decision.
[54] When Mr. Illion took on the brief, he knew that he was stepping into the middle of a 20-day period in which counsel were to confer to agree on HST issues failing which the remaining HST issues were to be heard. He chose to seek leave to appeal at that time and to contest the arbitrator’s jurisdiction to consider the underlying HST issue. I have already discussed the merits of this issue above. However, procedurally speaking, adopting that appeal strategy necessarily called into question the arbitrator’s jurisdiction to hear the remaining issues. Mr. Illion knew or should have known that his initial strategic decision set in motion a chain of events that would include: preparing appeal materials, preparing a possible stay motion, then fending off, but in the alternative, also preparing for, a real time schedule for the remaining hearing(s). Mr. Illion says that with his family issues and other scheduling concerns, he could not possibly read the 800 pages of transcripts and 2,000 pages of exhibits in time. He took a retainer in an arbitration that was not yet finished. He has had a month to prepare for the foreseeable results of his initial strategic view of the case. Objectively, that was more than enough time. If his subjective personal and professional circumstances did not allow him to do what needed to be done to implement the strategy that he believed ought to be advanced, the answer does not lie in repeatedly sending inappropriate communications to the arbitrator or begging for special dispensation despite the parties’ needs and interests.
Outcome
[55] In my view, the applicants have not out made out any of the three tests applicable to an interlocutory injunction or stay.
[56] Moreover, the justice of the case requires the timely completion of the arbitration and deference to interim scheduling decisions of the arbitrator. The merits of this application for leave to appeal remain to be heard in August.
[57] At the end of the hearing I endorsed the record as follows:
There is urgency as the applicants are facing a 5:00 PM deadline today for delivering submissions under the current schedule that the applicants ask me to stay. I will deliver reasons in due course. But to protect the applicants it is necessary to tell them now that the motion for an interim injunction or interim stay of Procedural Order No. 2 dated May 9, 2019 is dismissed. The applicant shall pay costs to the respondents of $1,500 all-inclusive. Motion for leave to appeal the arbitrator’s award dated April 1, 2019 is scheduled for Aug 19, 2019 for 2 hours.
F.L. Myers J.