Court File and Parties

CITATION: Popack v. Lipszyc, 2009 ONCA 365

DATE: 20090504

DOCKET: C49415

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., MacFarland, and LaForme JJ.A.

BETWEEN:

Joseph Popack, United Burlington Retail Portfolio Inc., and United Northeastern Retail Portfolio Inc.

Plaintiffs (Appellants)

and

Moshe Lipszyc and Sara Lipszyc

Defendants (Respondents)

Counsel:

Marvin J. Huberman, for the appellant

Colin P. Stevenson, for the respondent

Heard and endorsed orally: April 30, 2009

On appeal from the order of Justice A. Pollack of the Superior Court of Justice dated September 2, 2008.

APPEAL BOOK ENDORSEMENT

[1] On this record it is anything but clear that this arbitration agreement is incapable of performance.

[2] The May 8, 2008 letter is anything but dispositive, the circumstances of its admission before the motions judge make that factor quite clear.

[3] In our view this matter must be referred to the Crown Heights Beth Din under the auspices of Rabbi Schwei to proceed with the arbitration on a fixed timetable or clearly indicate the refusal of the Beth Din under his auspice to further deal with the matter.

[4] The order of the motion’s judge shall be varied in accordance with these reasons.

[5] Costs in the sum of $27,500 inclusive of disbursements and GST to the respondents.