Brent v. Brent

69 O.R. (3d) 737

[2004] O.J. No. 637

Docket No. M30376

Court of Appeal for Ontario

Feldman J.A. (in Chambers)

February 17, 2004

Arbitration -- Appeal -- Court of Appeal having no original jurisdiction to hear appeal from arbitration award -- Parties cannot confer jurisdiction on Court of Appeal by providing in agreement to arbitrate for appeal directly to Court of Appeal -- Section 50 of Arbitration Act not creating jurisdiction in Court of Appeal to entertain appeal of merits of arbitration award in guise of appeal from judgment of Superior Court incorporating arbitration award -- Arbitration Act, 1991, S.O. 1991, c. 17, ss. 45, 49, 50.

The parties' agreement to arbitrate stated that the arbitration award was a final award and that an appeal lay to the Court of Appeal on a question of law. The arbitration award was dated November 13, 2001, but neither side took steps to have it incorporated into a judgment of the Superior Court until January 2003. The order was signed on June 10, 2003. Meanwhile, and despite the wording of the agreement to arbitrate, the husband had taken the position that the appeal was to the Superior Court, and he had served a Notice of Appeal to that court in December 2001. The wife brought a motion in the Superior Court in December 2002 to dismiss the appeal for delay and because it was made to the wrong court. On May 6, 2003, the appeal was quashed on the basis that it was brought in the wrong court. The husband appealed the June 10, 2003 judgment but, due to an administrative error in the husband's counsel's office, the Notice of Appeal was filed a few days beyond the 30-day appeal period. The husband brought a motion for an extension of time to file the Notice of Appeal.

Held, the motion should be granted.

As the Court of Appeal is a statutory court, its jurisdiction is defined by statute and cannot be conferred by parties to litigation. Section 45(2) of the Arbitration Act provides that if the agreement to arbitrate so provides, a party may appeal an award to the court, defined as the Superior Court, on a question of law. Otherwise, under s. 45(1), an appeal lies only to the Superior Court with leave on a question of law. Under s. 49, there is a further appeal to the Court of Appeal with leave on questions of law. The fact that the arbitration award was incorporated into a judgment does not change the appeal jurisdiction. Section 50 of the Act allows a party entitled to enforcement of an award to apply to the court to issue a judgment for that purpose. In this case, that was the June 10, 2003 judgment. Section 50 does not create a jurisdiction in the Court of Appeal to entertain an appeal of the merits of the arbitration award in the guise of an appeal from a judgment of the Superior Court. To do so would be inconsistent with the clear provisions of ss. 45 to 49 of the Act. The Court of Appeal has no original jurisdiction to hear an appeal of an arbitration award.

The only extension of time that the court could grant relevant to an appeal of the arbitration award would be an extension of time to appeal the order of May 6, 2003. In view of the procedural confusion surrounding the rights of appeal of the arbitration award caused by the agreement to arbitrate, and the ongoing misunderstanding of the legal route of appeal, an extension of time should be granted.

MOTION for an extension of time to file a Notice of Appeal.

Cases referred to Frey v. MacDonald (1989), 33 C.P.C. (2d) 13, [1989] O.J. No. 236 (QL) (C.A.); [page738] Kilpatrick v. Peterborough Civic Hospital (1999), 99 C.L.L.C. Â210-040, 1999 3725 (ON CA), 174 D.L.R. (4th) 435, 44 O.R. (3d) 321, 42 C.C.E.L. (2d) 50, 33 C.P.C. (4th) 321 (C.A.); R. v. Bernardo (1994), 1994 1801 (ON CA), 95 C.C.C. (3d) 437, 121 D.L.R. (4th) 42 (Ont. C.A.); R. v. Church of Scientology (1986), 1986 4633 (ON CA), 25 C.C.C. (3d) 149, 6 C.P.C. (2d) 113, 13 O.A.C. 17 (C.A.); R. v. H. (E.) (1997), 1997 418 (ON CA), 115 C.C.C. (3d) 89, 33 O.R. (3d) 202 (C.A.); R. v. Jones (1996), 1996 285 (ON CA), 111 C.C.C. (3d) 351 (Ont. C.A.); R. v. Metro News Ltd. (1985), 1985 3639 (ON CA), 21 C.C.C. (3d) 492, 11 O.A.C. 58 (C.A.); R. v. Vaillancourt (1989), 1989 7181 (ON CA), 49 C.C.C. (3d) 544, 71 C.R. (3d) 43, 43 C.R.R. 60, 33 O.A.C. 234 (C.A.) [Leave to appeal to the S.C.C. refused (1992), 9 C.R.R. (2d) 384n, 1990 11058 (SCC), 76 C.C.C. (3d) 384n]; Rothgiesser v. Rothgiesser (2000), 2000 1153 (ON CA), 183 D.L.R. (4th) 310, 46 O.R. (3d) 577, 2 R.F.L. (5th) 266 (C.A.)

Statutes referred to Arbitration Act, 1991, S.O. 1991, c. 17, ss. 44(1)(b), 45-49, 50

Rules and regulations referred to Child Support Guidelines, O. Reg. 391/97 Rules of Civil Procedure, R.R.O. 1990, Reg. 194

Daniel S. Melamed, for appellant. Avra Rosen, for respondent.

FELDMAN J.A.: --

Procedural History

[1] This is a motion for an extension of time to file a Notice of Appeal. The appeal is from an arbitration award dated November 13, 2001, which was incorporated into a judgment of the Superior Court for the purposes of enforcement on June 10, 2003, pursuant to s. 50 of the Arbitration Act, 1991, S.O. 1991, c. 17. The Notice of Appeal was served on July 9, 2003, but was filed a few days beyond the 30-day appeal period due to an administrative error in the office of counsel for the husband, not Mr. Melamed. Mr. Melamed represents the insurers for the husband's counsel as a result of this error. The wife opposes the motion not because of this error, but instead because of the delay by the husband, since the arbitration award was released, in bringing on an appeal.

[2] The husband has at various times been unrepresented in this matter. Although the agreement to arbitrate states that the arbitration award is a final award and that an appeal lies to the Court of Appeal on a question of law, the husband took the position that the Arbitration Act required an appeal to the Superior Court of Justice and served a Notice of Appeal to that court on December 13, 2001. Although he was advised by Ms. Rosen, counsel for the wife, that his appeal was to the wrong court, he refused to proceed with an appeal to this court, nor did he take any steps to perfect the appeal in the Superior Court. Rather, he [page739] continued to write to the arbitrator asking her to amend her award (s. 44(1)(b) of the Arbitration Act allows an arbitrator to amend the award at a party's request where the request is made within 30 days after receiving the award), which she did not do.

[3] In December 2002, the wife brought a motion in the Superior Court to enforce the award and to dismiss the appeal in the Superior Court for delay and because it was made to the wrong court. The portion of the motion dealing with dismissal of the appeal was adjourned to allow the husband to retain counsel. It was heard on April 23, 2003. An order quashing the appeal was made by Weekes J. on May 6, 2003 on the basis that the appeal was brought in the wrong court. The motion judge did not address the delay issue. No appeal was taken from that order, although in his affidavit filed in a responding motion record, the husband indicates that if leave to appeal is granted, he would be seeking to combine his appeal of the arbitration award with an appeal of the order of Weekes J., in effect saying that the appeal itself is in the wrong court.

[4] Neither side took steps to have the arbitration award incorporated into a judgment of the Superior Court until January 2003. Both sides had input into the drafting of the order. It was filed as a basket (over the counter) motion in March pursuant to an endorsement of Wildman J. Because of administrative difficulties, the order was not signed by Scott J. until June 10, 2003. The husband took no further steps to appeal the arbitration award until July 2003, taking the position that the 30-day appeal period did not begin to run until June 10.

[5] It is clear that what the husband is purporting to appeal are the merits of the decision of the arbitrator. The husband has raised a number of grounds of appeal from the arbitration award. Mr. Melamed could not say which ones would actually be pursued if an extension were to be granted. The only ground that appears to raise an arguable issue of law is the ground relating to the need for the arbitrator to have had up to date financial records from both sides in order to make an order under the Child Support Guidelines, O. Reg. 391/97, that complies with the requirements of that legislation. Ms. Rosen responds that the arbitration agreement provided for each party to require whatever disclosure it wanted from the other and that that was done. However, even if the appellant is correct, to the extent that the records of the wife's income for a half- year period were not before the arbitrator, the amount in issue is no more than $2,500, i.e., a de minimis amount in the context of the cost of an appeal. The husband's original counsel suggests in his affidavit that the amount may be $10,000 to $15,000. [page740]

[6] The other grounds of appeal are matters that are either questions of fact, or issues where the arbitrator thoroughly discussed the facts and the law and came to decisions which do not appear to be based on any error of law.

Jurisdiction of the Court of Appeal

[7] After taking the matter under reserve, I sought further submissions from the parties on the issue of the jurisdiction of this court to hear an appeal of the arbitration award. Although the agreement to arbitrate contains an appeal clause that purports to allow an appeal on questions of law directly to the Court of Appeal, the Arbitration Act provides a scheme for appeals of arbitration awards. Section 45(2) states that if the agreement so provides, a party may appeal an award to the court, defined as the Superior Court, on a question of law. Otherwise, under s. 45(1) an appeal lies only to the Superior Court with leave on a question of law. By s. 49, there is a further appeal to the Court of Appeal with leave on questions of law. The fact that the arbitration award was incorporated into a judgment does not change the appeal jurisdiction. Section 50 of the Act allows a party entitled to enforcement of an award to apply to the court to issue a judgment for that purpose. That is the judgment of Scott J., issued on June 10, 2003 in this case.

[8] One of the conditions precedent for making such an order is that no appeal from the arbitration award be outstanding. To the extent that there is any appeal from the judgment of Scott J., such an appeal could raise only the jurisdictional propriety of making such an order, arising out of the conditions precedent set out in s. 50 of the Act. Such an appeal cannot collaterally challenge the merits of the underlying arbitration award. Section 50 does not create a jurisdiction in the Court of Appeal to entertain an appeal of the merits of the arbitration award in the guise of an appeal from a judgment of the Superior Court. To do so would be inconsistent with the clear provisions of ss. 45 to 49 of the Act.

[9] As the Court of Appeal is a statutory court, its jurisdiction is defined by statute and cannot be conferred by parties to litigation. See R. v. Church of Scientology (1986), 1986 4633 (ON CA), 25 C.C.C. (3d) 149, 6 C.P.C. (2d) 133 (Ont. C.A.) at pp. 150-51 C.C.C.; R. v. Bernardo (1994), 1994 1801 (ON CA), 121 D.L.R. (4th) 42, 95 C.C.C. (3d) 437 (Ont. C.A.), at p. 44 D.L.R.; R. v. Vaillancourt (1989), 1989 7181 (ON CA), 33 O.A.C. 234, 49 C.C.C. (3d) 544 (C.A.); R. v. H. (E.) (1997), 1997 418 (ON CA), 33 O.R. (3d) 202, 115 C.C.C. (3d) 89 (C.A.), at pp. 208-09 O.R.; R. v. Metro News Ltd. (1985), 1985 3639 (ON CA), 21 C.C.C. (3d) 492, 11 O.A.C. 58 (C.A.), at p. 495 C.C.C.; R. v. Jones (1996), 1996 285 (ON CA), 111 C.C.C. (3d) 351 (Ont. C.A.), at p. 352; Kilpatrick v. Peterborough Civic Hospital (1999), 1999 3725 (ON CA), 44 O.R. (3d) 321, 174 D.L.R. (4th) 435 (C.A.); [page741] Rothgiesser v. Rothgiesser (2000), 2000 1153 (ON CA), 46 O.R. (3d) 577, 183 D.L.R. (4th) 310 (C.A.), at para. 19. It is clear from the provisions of the Arbitration Act that I have referred to, that this court has no original jurisdiction to hear an appeal of an arbitration award. Therefore, even had the husband's Notice of Appeal been filed within 30 days of June 10, 2003, this court would not have proceeded to hear the appeal from the arbitration award. Consequently, the only extension of time that this court could grant relevant to an appeal of the arbitration award would be an extension of the time to appeal the order of Weekes J. of May 6, 2003.

The Test for Granting an Extension

[10] The test for granting an extension is set out in Frey v. MacDonald (1989), 33 C.P.C. (2d) 13, [1989] O.J. No. 236 (QL) (C.A.): the appellant must have maintained a firm intention to appeal from the beginning, the failure to observe the time limits must be reasonably explained, subject to a broader rule that leave will be granted if the justice of the case requires it, including the merits of the proposed appeal and the prejudice to the respondent.

[11] Although the husband indicated an apparent intention to appeal by serving his notice in December 2001, he took no steps to perfect in the Superior Court.

[12] The husband's explanation for why he did not proceed with an appeal in accordance with the time limits provided by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in the Superior Court after serving his Notice of Appeal is that he was seeking on an ongoing basis to have the arbitrator amend her report, and, as well, that he was unrepresented. The husband was clearly unhappy with the arbitrator's decision and wanted it changed, but he did not attempt to comply with the Rules to move forward with an appeal. I note that he did not pay the amounts awarded including child support until May 2003.

[13] Once he obtained a lawyer in the spring of 2003, he defended the motion brought by the wife to dismiss for delay or because he was in the wrong court. He then waited for the order incorporating the award before proceeding to file a Notice of Appeal to this court, although he did pay the arrears.

[14] An appeal is limited to an appeal on a question of law. As indicated above, there is only one issue that appears to be wholly a question of law, and to raise it, the appellant will have to show the deficiencies in disclosure by the wife and meet the argument that by the terms of the arbitration agreement the husband could have required more disclosure.

[15] The next factor is the issue of prejudice to the wife. She has incurred considerable cost during the delay in this matter as [page742] her counsel has had to be proactive to have the arbitration and enforcement of the award proceed. She deposes a need for finality for her emotional well-being.

[16] The unusual added feature of this case is the procedural confusion surrounding the rights of appeal of the arbitration award, caused by the original agreement that the parties made, and the ongoing misunderstanding of the legal route of appeal.

[17] In all the circumstances, I believe an extension of time should be granted to the husband to appeal the order of Weekes J. In order to expedite matters, once the Notice of Appeal has been filed, the parties may prepare a consent order, setting aside the order of Weekes J. that had quashed the appeal in the Superior Court. If so advised, the wife may proceed with her previously filed motion to dismiss the appeal for delay. Otherwise, the husband may proceed to appeal in accordance with the Arbitration Act.

[18] In his written submissions following my correspondence with the parties, counsel for the husband also now seeks an extension of time to move to set aside the order of Scott J. under s. 50 of the Arbitration Act. I decline to do so. When that order was signed there was no appeal outstanding. As I stated above, the husband chose not to immediately file a Notice of Appeal to this court after the order of Weekes J., but waited until the order of Scott J. That order will stand unless and until the husband is able to successfully appeal any portion of the arbitration award.

Result

[19] The time for appeal of the order of Weekes J. is extended to February 20, 2004. The husband has obtained an indulgence from the court. He should therefore bear the costs of this motion. They are fixed in the amount of $6,000, inclusive of disbursements and GST, and are payable forthwith and before any further proceedings may be taken by the husband.

Motion granted.