Court of Appeal for Ontario

CITATION: Jowers v. Gracious Living Corporation, 2008 ONCA 704

DATE: 20081014

DOCKET: C48229

COURT OF APPEAL FOR ONTARIO

Moldaver, Armstrong and Blair JJ.A.

BETWEEN

Perry Jowers o/a New London

Respondent in Appeal (Applicant)

and

Gracious Living Corporation o/a Gracious Living Industries

Appellant (Respondent)

Counsel:

John J. Keenan, for the appellant

Jason H. Wang, for the respondent

Heard and released orally: September 26, 2008

On appeal from the judgment of Justice Ernest Loukidelis of the Superior Court of Justice dated December 12, 2007.

ENDORSEMENT

[1] The respondent commenced an action for monies alleged to be owing under a manufacturer’s representation agreement in the State of Georgia. The appellant challenged the jurisdiction of the Georgia court to hear this case on the basis that the agreement contained an arbitration clause which provides as follows:

All claims, disputes and other matters in question between the parties hereto, arising out of or relating to this Agreement shall be resolved according to the rules of the Arbitration Act (Ontario) then in force and effect. The said arbitration to be convened and to take place in Toronto, Canada. This agreement to arbitrate shall be specifically enforceable under the prevailing law. The award rendered by the arbitrator shall be final and binding, and judgment may be entered upon it in any court having jurisdiction thereof. The demand for arbi-tration shall be made within thirty (30) days after the claim, dispute or other matter questioned has arisen.

[2] The parties agreed on a consent order of the Georgia court which stayed the Georgia proceeding pending the resolution of this matter in arbitration.

[3] The parties could not agree on who the single arbitrator should be. The respondent moved in the Superior Court of Justice in this province pursuant to the Arbitration Act for the appointment of an arbitrator and provided four names of potential arbitrators. The motion judge made an order that any one of the four persons named would be acceptable depending on their availability.

[4] The appellant argued that the Superior Court of Justice had no jurisdiction to make such order and that the application should have been made to the Georgia court. Its position, simply put, is that the respondent chose the Georgia court as the court with jurisdiction in this matter by commencing the action, which is now stayed, in Georgia. We disagree.

[5] The parties agreed that the Ontario Arbitration Act would govern the arbitration. Sections 9 and 10 of the Act provide that an application of this nature should be made to the court, which is defined in the Act as the Superior Court of Justice. In our view, the motion judge’s order should stand but be varied to name one of the four persons as the single arbitrator. We would therefore name the Honourable John Webber as the single arbitrator.

[6] The appellant also appeals the award of costs that was made in the Superior Court of Justice on a substantial indemnity scale. We note that the quantum awarded is fair and reasonable and it might be said that it is really on a scale of partial indemnity. Since we are dismissing the appeal on the merits, leave is required. We see no basis upon which to grant leave.

[7] In the result, the appeal is dismissed and the order of the motion judge is varied to name the Honourable John Webber as the single arbitrator. In the event that he is unable to take the arbitration, the Honourable J. O’Brien is named as the alternate.

[8] Costs to the respondent on a partial indemnity basis fixed at $5,500 inclusive of GST and disbursements.

“M.J. Moldaver J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”