Court File and Parties

Citation: 678400 Ontario Inc. v. Roehampton Apartments Limited, 2007 ONCA 384

Date: 20070518

Docket: M34864 M35055 C46492

Court of Appeal for Ontario

Simmons, Cronk and Blair JJ.A.

Between:

678400 Ontario Inc.

Applicant (Appellant)

And

Roehampton Apartments Limited

Respondent (Respondent in Appeal)

Counsel:

Stephen Richard Morrison for the respondent on the motion to quash (the moving party on the motion to extend time)

Alan H. Mark and D. Michael Brown for the moving party on the motion to quash (the responding party on the motion to extend time)

Heard and endorsed: May 17, 2007

Motion Record Endorsement

[1] In our view, the existing appeal must be quashed but the time for filing an application for leave to appeal should be extended.

[2] In our opinion, properly read, the appellant's application was, in substance, a claim for an order staying the notice of arbitration dated November 3, 2005 based on claims that either the arbitration clause was invalid or that the arbitration agreement did not apply to the issues in dispute. These claims fall squarely within s. 48 of the Arbitration Act. Moreover, the appellant relied on s. 48 of the Arbitration Act in its factum.

[3] Section 49 of the Arbitration Act requires that leave of this court must be granted in relation to an appeal of an order made on an application under s. 48 of the Arbitration Act. As no leave has been obtained, the existing appeal is quashed.

[4] In relation to the motion for an extension of time to seek leave to appeal, the original notice of appeal was filed promptly and the initial failure to file an application for leave to appeal appears to have been due to solicitor error. While we consider that leave to appeal should have been sought at a much earlier date, we are not satisfied that there is any meaningful prejudice to the moving party should the requested extension be granted.

[5] An extension to file an application for leave to appeal is granted. The application should be filed and perfected within 21 days from today. The October 30, 2007 hearing date should be reserved pending determination of the leave application.

[6] Costs of the motion to quash are to the respondent on the appeal on a substantial indemnity scale fixed in the amount of $17,981.00 inclusive of disbursements and applicable G.S.T. There will be no costs of the motion to extend time.