Court of Appeal for Ontario

Citation: 2018 ONCA 43 Date: 2018-01-22 Docket: M48702 & M48703 (M48686)

Benotto J.A. (In Chambers)

Between

DAC Group (Holdings) Limited Applicant/Responding Party

and

Fuego Digital Media Inc. Respondent/Moving Party

Counsel

Kevin Higgins, self-represented, appearing for the Moving Party

Lawrence Theall and Melissa Wright, for the Responding Party

Heard: January 18, 2018

Reasons for Decision

Issue

[1] Is an order granting a conditional stay of enforcement of an arbitration award final or interlocutory? The resolution of this issue establishes jurisdiction.

[2] For the reasons that follow, I conclude that the order is interlocutory and jurisdiction lies with the Divisional Court.

Background

[3] The parties to this motion attended arbitration concerning the ownership of certain software. The arbitrator declared that the respondent ("DAC") owned the software, provided for injunctive relief, and ordered costs of over $1.5 million.

[4] Fuego Digital Media Inc. ("Fuego") commenced an application under s. 46 of the Arbitration Act, 1991 S.O. 1991, c.17 to set aside parts of the award. The application is scheduled to be heard in April, 2018.

[5] The application judge stayed the award pending final determination saying this:

The Court exercises its discretion under section 50(5) and 50(8) of the Arbitration Act to stay enforcement of the final award and cost pending the disposition of Fuego's application on the condition that Fuego pay DAC the sum of $25,000 on the 15th day of each and every month commencing on January 15, 2018 until such time as the application to be heard in April 2018 is dealt with.

Discussion

[6] I have concluded that the order is interlocutory.

[7] First, the merits of Fuego's application remain to be determined. The longstanding dicta in Hendrickson v. Kallio, [1932] O.R. 675 applies here. There, Middleton J.A. said, at p. 678:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.

[8] Second, the award is under s. 50(5) of the Arbitration Act which confirms that a final order has yet to be made. That section provides:

Pending proceeding

(5) If the period for commencing an appeal, application to set the award aside or application for a declaration of invalidity has not yet elapsed, or if such a proceeding is pending, the court may,

(a) enforce the award; or

(b) order, on such conditions as are just, that enforcement of the award is stayed until the period has elapsed without such a proceeding being commenced, or until the pending proceeding is finally disposed of.

[9] This matter is pending and remains before the court for a final determination under s. 50(3) of the Arbitration Act.

Disposition

[10] This matter is within the jurisdiction of the Divisional Court. No Notice of Appeal has been filed in this court so there is no file to be transferred. The companion motions brought on behalf of Fuego to have Mr. Higgins represent the company and for a stay are dismissed since this court does not have jurisdiction over the appeal. Likewise, I am not prepared to make an order regarding time limits with respect to matters in the Divisional Court.

[11] Fuego shall pay DAC its costs of the motion fixed in the amount of $1500 inclusive of disbursements and HST.

M.L. Benotto J.A.