Bell Canada v. The Plan Group et al.

[Indexed as: Bell Canada v. The Plan Group]

96 O.R. (3d) 81

Court of Appeal for Ontario,

Goudge, Gillese and Blair JJ.A.

July 7, 2009

Arbitration -- Arbitration agreement -- Interpretation -- Parties entering into agreement in 1999 containing arbitration clause which provided that disputes would be arbitrated under Arbitration Act, 1991 and "then-current" rules of Arbitration and Mediation Institute of Ontario -- Arbitration clause also providing that failing to file notice of arbitration within 12 months after occurrences supporting claim constituted irrevocable waiver of claim -- Dispute arising in 2005 -- Applicant delivering notice to respondent demanding arbitration but not filing notice of request to arbitrate with Institute -- Application judge finding that filing of notice with Institute was not required -- Standard of review of application judge's decision being correctness -- Decision not correct -- Application judge erring in applying 1999 rules of Institute rather than current rules of Institute and in interpreting "file" in waiver provision as meaning "serve" or "deliver" notice on other side.

The arbitration clause of a 1999 agreement provided that a single arbitrator would conduct the arbitration "under the Arbitration Act, 1991 (Ontario) and the then-current rules of the Arbitration and Mediation Institute of Ontario Inc." and that "Failure to file a notice of arbitration within twelve (12) months after the occurrences supporting a claim constitutes an irrevocable waiver of that claim." In 2005, the applicant delivered a notice demanding arbitration but did not file a notice with the Institute. The respondent took the position that, in order to begin arbitration, the applicant had to deliver to the respondent and file with the Institute a written notice of request to arbitrate. It relied on arts. 11 and 13 of the current rules of the Institute (the "Current Rules"). The applicant brought an application for an order appointing an arbitrator. The application judge applied the rules that were in effect when the agreement was negotiated (the "1999 Rules") and found that the arbitration clause did not require a party commencing arbitration to file a notice of request to arbitrate with the Institute. The respondent appealed.

Held, the appeal should be allowed.

Per Blair J.A. (Goudge J.A. concurring): The decision under appeal was a final order because it finally determined the only issue raised in the application. Leave to appeal was not required.

The issues raised on appeal tended toward questions of law, attracting review on a standard of correctness. Even if it could be said that the standard was palpable and overriding error, the decision could not stand. The application judge failed to give meaning and effect to an important term of the arbitration clause, namely, the