COURT OF APPEAL FOR ONTARIO

CITATION: Ferreira v. Esteireiro, 2014 ONCA 523

DATE: 20140704

DOCKET: C58421

Feldman, MacPherson and Cronk JJ.A.

BETWEEN

Maria Alida Ferreira

Appellant (Applicant)

and

Joao (John) Carlos Esteireiro

Respondent (Respondent)

Jeanie M. DeMarco, for the appellant

Judith M. Nicoll, for the respondent

Heard: July 2, 2014

On appeal from the order of Justice Suzanne M. Stevenson of the Superior Court of Justice, dated December 23, 2013.

ENDORSEMENT

[1] The appellant, Maria Alida Ferreira, appeals from the order of Stevenson J. of the Superior Court of Justice (the “Motions Judge”), dated December 23, 2013. By that order, the Motions Judge granted summary judgment in favour of the respondent, Joao (John) Carlos Esteireiro, dismissed the appellant’s motion for various forms of relief, lifted the stay order of Kiteley J. of the Superior Court of Justice, dated October 9, 2013, described below, and awarded costs to the respondent in the total amount of $15,000, among other relief.

[2] This matrimonial dispute has a tortured and troubling history. In brief, the parties married in Las Vegas in 1995 and again in South Africa in 1996. They separated in 2005. There are no children of the marriage.

[3] In November 2005, the parties entered into a separation agreement (the “Agreement”), which provided for lump sum and periodic spousal support to be paid by the respondent to the appellant, among other matters. Under the Agreement, the appellant’s spousal support was to terminate on the happening of specified events, including if she entered into a “relationship resembling marriage”.

[4] The respondent paid periodic support, in the amount of $12,500 per month, from March 2006 to May 2012, whereupon he ceased making support payments on the basis of his belief that the appellant was in a “relationship resembling marriage”, thus terminating his support obligations under the Agreement.

[5] The appellant’s ensuing application for relief was stayed by the court because the Agreement contained an arbitration/mediation dispute resolution mechanism. An arbitration was eventually held before an arbitrator nominated by the appellant. The arbitrator ruled in favour of the respondent, concluding that the appellant had entered into post-separation relationships resembling marriage at two different times, with two different men, thus triggering a spousal support termination event under the Agreement. She ordered the appellant to reimburse the respondent for overpaid spousal support and subsequently awarded costs to the respondent.

[6] A flurry of litigation soon followed. The appellant sought leave to appeal the arbitral award under s. 45(1) of the Arbitration Act, 1991, S.O. 1991 c.17 (the “Act”). She also sought to review the arbitral awards under s. 46 of the Act. By order dated July 5, 2013, Mesbur J. of the Superior Court of Justice dismissed the appellant’s leave motion.

[7] On July 25, 2013, the appellant commenced a fresh application – the subject of this appeal – in which she sought various relief, including an order setting aside the main arbitral award and the arbitrator’s costs award, as well as certain declaratory relief (the “2013 Application”).

[8] For his part, the respondent moved for a court order enforcing the substantive arbitral award. The appellant opposed the motion on grounds that included some of those raised on her unsuccessful leave motion. By order dated August 16, 2013, Sachs J. of the Superior Court of Justice granted the respondent’s enforcement motion.

[9] The appellant then sought a reattendance before Sachs J., ostensibly to clarify aspects of the enforcement decision. Her request for relief on the reattendance motion was denied by Sachs J. In her reasons, dated September 21, 2013, Sachs J. described the reattendance motion as “entirely inappropriate” and as “a thinly disguised attempt to reargue the same issues” that were argued before her on the original enforcement motion.

[10] The respondent also moved for an order enforcing the arbitrator’s costs award and for security for costs. By order dated October 9, 2013, Kiteley J. of the Superior Court of Justice granted the relief sought, but stayed the enforcement of her order pending disposition of a motion for summary judgment brought by the respondent.

[11] As we have said, the Motions Judge granted the respondent’s motion for summary judgment and dismissed the appellant’s 2013 Application as an abuse of the court process. In her detailed reasons, the Motions Judge made three critical findings. First, she found there was no genuine issue requiring a trial. Second, she held that the appellant’s 2013 Application was an abuse of process because the issues raised in it had already been litigated and determined on the leave motion before Mesbur J. The appellant, therefore, was simply attempting to relitigate the same issues. Finally, and in any event, she ruled that the appellant’s 2013 Application was commenced outside the time limits set under s. 47(1) of the Act.

[12] The appellant now appeals to this court. She attacks the Motions Judge’s decision on numerous grounds. In our view, it is unnecessary to address those grounds in any detail. The issues raised on appeal concern matters advanced and addressed in previous proceedings between the parties including, especially, in the proceedings before Mesbur J. and Sachs J., described above.

[13] During oral argument before this court, the appellant maintained that the arbitrator failed to rule on a threshold jurisdictional question, namely, whether the preconditions to the invocation of the arbitration provisions of the Agreement had been satisfied by the respondent. The appellant contends that, to date, there has been no ruling on this question.

[14] This complaint is unsustainable. In our view, the appellant’s amended statement of issues for the arbitration did not clearly raise this jurisdictional question. Further, the arbitration proceeded by reason of a court order. The issue of the arbitrator’s jurisdiction to determine the issues referred to her was subsumed in the arbitration process, in which the appellant fully participated. Moreover, the matter of the arbitrator’s jurisdiction to conduct the arbitration was not raised before the Motions Judge.

[15] In our view, the extensive record on appeal overwhelmingly demonstrates that the appellant is dissatisfied with the outcome of the arbitration and is unrelenting in her determination to overturn the arbitral awards made against her. To that end, she has raised a host of issues in proceedings before four different judges of the Superior Court, with the sole purpose of avoiding enforcement of the arbitrator’s rulings. We are compelled to observe that this strategy is both misconceived and duplicative of the courts’ process.

[16] The decisions of Mesbur J. and Sachs J. are final. The vast majority of the issues raised in the appellant’s 2013 Application and argued before the Motions Judge were raised before and adjudicated upon by Mesbur J. In any event, the Motions Judge based her decision not only on res judicata or issue estoppel but, as well, on her own view that they had no merit. To the extent that it can be said that any new issues were pursued before her, the Motions Judge addressed those issues directly and also rejected the appellant’s position on each of them.

[17] We see no basis for appellate interference with the Motions Judge’s decision. Indeed, we agree with it. In particular, we agree with her conclusion that there is no genuine issue requiring a trial in this matter and that the appellant’s repeated attempts to relitigate issues previously determined by the courts is an abuse of the court’s process. We also agree, in any event, that the appellant’s 2013 Application is caught by s. 47(1) of the Act. The appellant commenced her 2013 Application outside the 30-day time limit provided for under s. 47(1). (The main arbitral award was made on May 23, 2013, yet the appellant did not commence her 2013 Application until July 25, 2013.) The 2013 Application, therefore, was time-barred.

[18] For these reasons, the appeal is dismissed.

[19] The respondent is entitled to his costs of this appeal. Having regard to the outcome on appeal and the appellant’s conduct throughout this litigation, discussed above, the respondent’s costs are fixed in the total amount of $10,000, inclusive of disbursements and H.S.T.

[20] Finally, the stay order of LaForme J.A. of this court, set out in paragraph four of his order dated February 18, 2014, is set aside, effective 45 days from the date of the release of these reasons. A copy of LaForme J.A.’s order is attached hereto, as Schedule “A” to these reasons.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”