Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220902 DOCKET: M53492 (M53363)

Miller, Nordheimer and Sossin JJ.A.

BETWEEN

Iris Technologies Inc. Applicant/Respondent (Moving Party)

and

Rogers Communications Canada Inc. Respondent/Appellant (Responding Party)

Counsel: Richard Stephenson and Paul Davis, for the moving party Peter Mantas and Gabrielle Cyr, for the responding party

Heard: August 31, 2022

Reasons for Decision

[1] The moving party brings this motion to quash the responding party’s motion for leave to appeal. At the conclusion of the hearing, we granted the motion and quashed the motion for leave to appeal with reasons to follow. We now provide our reasons.

[2] The parties are involved in a commercial arbitration under the Arbitration Act, 1991, S.O. 1991, c. 17. The dispute involves payment for services provided by the moving party to the responding party. The responding party launched a counterclaim in the arbitration.

[3] As a preliminary issue, the Arbitrator was asked to rule on whether he had jurisdiction to consider the responding party’s counterclaim or whether the subject of the counterclaim was within the exclusive jurisdiction of the Canada Radio‑television Telecommunications Commission (“CRTC”). The Arbitrator ruled that he had jurisdiction.

[4] Pursuant to s. 17(8) of the Arbitration Act, 1991, the moving party applied to the Superior Court of Justice for a review of the Arbitrator’s decision. The application judge reversed the Arbitrator’s decision and dismissed the responding party’s counterclaim.

[5] The responding party then brought a motion for leave to appeal from the application judge’s decision. It is that motion for leave to appeal that is the subject of this motion to quash.

[6] In our view, the issue raised by the motion to quash is determined by the provisions of the Arbitration Act, 1991, particularly ss. 17(8) & (9) which read:

(8) If the arbitral tribunal rules on an objection as a preliminary question, a party may, within thirty days after receiving notice of the ruling, make an application to the court to decide the matter.

(9) There is no appeal from the court’s decision.

[7] The Arbitration Act, 1991 is clear that there is no further right of appeal from the decision of a Superior Court judge hearing a review of an Arbitrator’s decision on a preliminary question. The responding party relies on the appeal procedures in ss. 45 - 50.1 of the Arbitration Act, 1991, particularly s. 49, to ground its motion for leave to appeal but those provisions relate to an appeal of an award. The Arbitrator did not make an award. Rather, he ruled on a preliminary objection. This distinction is made clear by s. 17(7) which reads:

The arbitral tribunal may rule on an objection as a preliminary question or may deal with it in an award.

[8] The Arbitrator chose the former route, not the latter. Consequently, both his decision, and the application judge’s review of it, are governed by the appeal provisions in s. 17. As s. 17(9) makes clear, there is no appeal from the reviewing court’s decision. The provision could not be clearer.

[9] The responding party asserts that this issue is not about the arbitrator’s jurisdiction to hear the dispute but is “a different kind of case”. With respect, it is not. This was clearly an issue over the Arbitrator’s jurisdiction to hear and decide the counterclaim. Both the reasons of the Arbitrator and the reasons of the reviewing judge make this clear. Indeed, it was the question whether the subject‑matter of the counterclaim was within the exclusive jurisdiction of the CRTC that was at the heart of the dispute.

[10] We also do not accept the responding party’s submission that a full record is necessary to decide this issue because the “context” is important to the question raised. This is a narrow question. It is whether any appeal lies from the reviewing judge’s decision. The statute makes it clear that there is not when the issue is determined as a preliminary question. With respect, the merits of the matter are irrelevant to that determination. Either the statute grants an appeal to this court or it does not. In these circumstances, it does not.

[11] We would also note, in passing, that our conclusion on this point is consistent with the decision of this court in United Mexican States v. Burr, 2021 ONCA 64, 154 O.R. (3d) 321, which considered a very similar provision under the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5.

[12] It is for these reasons that the motion was granted and the responding party’s motion for leave to appeal was quashed. If the parties cannot resolve the issue of the costs of the motion, they may make brief written submissions, not exceeding two pages. The motion party’s submissions shall be delivered within five days of the release of these reasons and the responding party’s submissions shall be delivered within five days thereafter. No reply submissions are permitted.

“B.W. Miller J.A.”

“I.V.B. Nordheimer J.A.”

“L. Sossin J.A.”