CITATION: Marchese v. Marchese, 2007 ONCA 34

DATE: 20070123

DOCKET: C45453

COURT OF APPEAL FOR ONTARIO

RE:

MARCO ROMOLO MARCHESE (Applicant/Appellant) – and – KIMBERLEY ANN MARCHESE (Respondent)

BEFORE:

MACPHERSON, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Thomas Basciano for

for the appellant

Cynthia Waite

for the respondent

HEARD & RELEASED ORALLY:

January 18, 2007

On appeal from the order Justice Deena F. Baltman of the Superior Court of Justice dated April 19, 2006.

E N D O R S E M E N T

[1] After many court appearances resulting in several court orders and significant legal costs, at the suggestion of the appellant’s solicitor, the parties signed a written consent that included the following clause:

The parties shall attend for mediation/arbitration with Phil Epstein regarding all issues in the action.

[2] A consent order was made adjourning the matter sine die to be brought back on ten days notice and requiring the parties to attend for mediation/arbitration. After an initial meeting with Mr. Epstein for mediation it became clear that mediation would be unsuccessful. The appellant refused to proceed to arbitration and brought the matter back before the court. The motion judge stayed the proceedings pursuant to the Arbitration Act, s. 7.

[3] The respondent submits that there is no appeal from that decision under s. 7(6) of the Act. The appellant submits that s. 7 has no application as the motion judge erred in finding there was an agreement to arbitrate. We see no error on the part of the motion judge in concluding that there was an agreement to arbitrate.

[4] We do not agree with the submission that there is any ambiguity in the words “mediation/arbitration” or that those words mean “mediation or arbitration.” Mediation/ arbitration is a well recognized legal term of art referring to a hybrid dispute resolution process in which the named individual acts first as a mediator and, failing agreement, then proceeds to conduct an arbitration. We note that it was appellant’s solicitor who suggested this process, naming a well known practitioner who regularly conducts mediation/arbitrations and who has written papers on the topic explaining precisely what that process entails. The motion judge did not err in rejecting the contention that there was no agreement to arbitrate.

[5] We do not agree that the provision permitting the parties to return to court undermined the agreement to arbitrate or permitted the appellant to resile from it. That provision was simply to provide for implementation of the results of the mediation/ arbitration in a final court decree.

[6] In our view, a mediation/arbitration agreement may be reconciled with the arbitration Act, s. 35 which prevents an arbitrator from “conducting any part of the arbitration as a mediation.” If s. 35 applies (a point we need not decide) it can be waived and the agreement to engage in “mediation/arbitration” in this case amounted to a waiver.

[7] Finally, this is not a case like Hercus v. Hercus, [2001] O.J. No. 534, where, contrary to the agreement, the mediation stage was skipped and the arbitrator proceeded directly to arbitration. Here, mediation was attempted and the move to arbitration only occurred after it became clear that mediation would fail.

[8] Accordingly, the appeal is dismissed. Costs to the respondent of the appeal and the stay motion before Cronk J.A. fixed at $8,000 inclusive of disbursements and GST.

“J.C. MacPerson J.A.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”