COURT OF APPEAL FOR ONTARIO

CITATION: Alfred Wegener Institute v. ALCI Aviation Ltd., 2014 ONCA 398

DATE: 20140514

DOCKET: C57959

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Alfred Wegener Institute for

Polar and Marine Research

Applicant (Respondent)

and

ALCI Aviation Ltd. and Enterprise Airlines Inc.

Respondents (Appellants)

Robert J. Drake, for the appellants

Brendan F. Morrison, for the respondent

Heard: May 12, 2014

On appeal from the order of Justice Geoffrey B. Morawetz of the Superior Court of Justice, dated October 23, 2013.

ENDORSEMENT

[1] The appellants, ALCI Aviation Ltd. and Enterprise Airlines Inc., appeal from an order of the application judge ordering that an arbitral verdict rendered by a German arbitral tribunal be recognized as binding in Ontario and enforceable in the same manner as a judgment or order of the Superior Court.

[2] The appellants did not appear at the arbitration, and did not file material or appear on the application.

[3] On appeal, they raise for the first time the argument that a certified copy of the arbitral record was not before the application judge and that, as a result, the order recognizing the verdict should never have been made.

[4] Article 35(2) of the International Commercial Arbitration Act, R.S.O., 1990, C. I.9 provides:

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof…

[5] The affidavit, filed in support of the application, attached and identified under oath “a true copy of the duly certified translation of the Arbitral Verdict” together with a copy of the original verdict and the affidavit of the translator.

[6] The copy bears what appear to be the signatures of the three members of the arbitral panel.

[7] Where no issue was raised before the application judge as to the form of the copy or the accuracy of the copy of the verdict, it was open to the application judge to accept the affidavit evidence as duly certifying the document and meeting the requirements of article 35(2). No issue is raised on appeal as to the accuracy of the document.

[8] Accordingly, the appeal is dismissed with costs to the respondent in the agreed amount of $6,000.00, inclusive of all applicable taxes and disbursements.

“K.M. Weiler J.A.”

“C.W. Hourigan J.A.”

“G. Pardu J.A.”