DATE: 20041028

DOCKET: C41695

COURT OF APPEAL FOR ONTARIO

RE: DAVID FINKELSTEIN (Plaintiff/Respondent) v. CHAIM SHLOMO BISK also known as SOLOMON BISK, DAVID BISK and TSUI YOSEL RABITZKI (Defendants/Appellants)

BEFORE: DOHERTY, LASKIN and JURIANSZ JJ.A.

COUNSEL: Aaron A. Blumenfeld for the appellants

Ernst Ashurov for the respondent

HEARD: October 22, 2004

On appeal from the judgment of Justice Karakatsanis of the Superior Court of Justice dated March 19, 2004.

E N D O R S E M E N T

[1] The appeal was dismissed at the conclusion of oral argument with reasons to follow. These are those reasons.

[2] Mr. Finkelstein sued the appellants claiming damages for fraudulent misrepresentation. According to the appellants, they have an oral agreement with Mr. Finkelstein whereby any disputes arising out of their agreement will be arbitrated by the Beis Din of the Vaad Harabonim of Toronto. Mr. Finkelstein denies that he ever entered into any agreement to arbitrate any disputes that might arise with the appellants.

[3] The appellants moved for a stay of Mr. Finkelstein’s action pursuant to Rule 21. The motion judge dismissed the application.

[4] Counsel for the appellants acknowledges, correctly in our view, that the motion judge had jurisdiction to decide whether the parties had agreed to submit their dispute to arbitration. Counsel goes on to argue, however, that as it was arguable that such an agreement had been reached, the court should have exercised its discretion in favour of directing that the arbitrator determine whether any agreement to arbitrate had been made and, if so, whether this dispute was caught by it.

[5] Counsel for the appellants also contends that the question of whether an agreement to arbitrate had been made required an assessment of conflicting evidence and credibility assessments. He argues that the motion judge should have directed a trial of an issue to resolve these factual issues.

[6] The motion judge could have exercised her discretion in favour of staying the action and allowing the Beis Din to decide whether the parties had agreed to arbitrate any dispute arising out of their agreement. However, we see no error in principle in the manner in which she exercised her discretion in the circumstances of this case. The question of whether the parties had agreed to arbitrate did not turn on any matter with respect to which the arbitrator had special expertise or some other advantage over the motion judge.

[7] We also see no error in the motion judge’s determination of the matter despite the conflict in the evidence. In determining whether to direct the trial of an issue, a motion judge is entitled to consider the nature of the issue she must decide on the motion. This motion judge was being asked to determine a preliminary procedural matter relating to the court’s jurisdiction. She was not being asked to decide any factual question touching on the merits of the dispute between the parties. It was open to the motion judge to make the findings necessary to decide the preliminary issue brought before her on the motion.

[8] For the reasons set out above, the appeal is dismissed. As indicated at the conclusion of oral argument, the respondent will have its costs of the appeal on a partial indemnity basis fixed at $5,000.00, inclusive of GST and disbursements.

“Doherty J.A.”

“John I. Laskin J.A.”

“R.G. Juriansz J.A.”