COURT OF APPEAL FOR ONTARIO

CITATION: Nissan Canada Inc. v. Lorion, 2016 ONCA 811

DATE: 20161101

DOCKET: C61403

Doherty, Hourigan and Brown JJ.A.

BETWEEN

Nissan Canada Inc.

Applicant (Appellant)

and

Mary Lou Lorion and F.G. Fox

Respondents (Respondent in Appeal)

Jeffrey A. Brown and Shaun A. Hashim, for the appellant

Bradley Vermeersch, for the respondent

Heard and released orally: October 28, 2016

On appeal from the judgment of Justice Kenneth G. Hood of the Superior Court of Justice, dated November 23, 2015.

ENDORSEMENT

[1] The appellant brought an application for a declaration that the arbitrator had no authority to reopen an arbitration that the appellant alleged had been finally decided by the arbitrator more than 30 days before the respondent brought the application to reopen.

[2] The application judge described the application as “premature” and declined to address the merits, directing that the matter should proceed before the arbitrator first. The application judge said:

In my view the re-opened arbitration should proceed, whether rightly or wrongly, and at the end of that process the parties can then take whatever steps they feel are appropriate in the circumstances. Nissan remains free to raise before the arbitrator whatever arguments they wish concerning the correctness of the re-opening and the procedure being followed. In this way there will be a complete record of the proceedings before the arbitration, including his decision to re-open and any reasons for this along with the issue of the new evidence. The parties can then take the steps they feel are appropriate.

[3] We would not interfere with the application judge’s exercise of his discretion. Whether this matter is addressed from the perspective of the exercise of discretion always engaged on an application for declaratory relief, or through the statutory lens of s. 17 of the Arbitration Act, the efficient and effective operation of the arbitral process is best served by having an initial determination made by the arbitrator leaving the parties to seek whatever remedy they deem fit in response to that determination.

[4] The appeal is dismissed.

[5] Costs to the respondent, fixed at $7,500, inclusive of disbursements and relevant taxes.

“Doherty J.A.”

“C.W. Hourigan J.A.”

“D.M. Brown J.A.”