Court File and Parties

CITATION: Wang v. Mattamy Corporation, 2021 ONSC 2635

DIVISIONAL COURT FILE NO.: 123/20

DATE: 20210409

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: WEN WANG and WEI LI, Moving Parties

AND:

MATTAMY CORPORATION, MATTAMY HOMES LIMITED and mattamy (preserve) limited, Responding Parties

BEFORE: D.L. Corbett, Kristjanson and Favreau JJ.

COUNSEL: Wen Wang, the Moving Party, self-represented Michael A. Currie, for the Responding Parties

HEARD in writing at Toronto

Endorsement

Favreau J.

[1] The parties entered into an agreement of purchase and sale for a pre-construction home. The moving parties, Wen Wang and Wei Li, failed to close the sale and then commenced a civil action in the Superior Court for return of their deposit.

[2] The responding parties, Mattamy Corporation, Mattamy Homes Limited and Mattamy (Preserve) Limited, brought a motion to stay the action on the basis that the agreement of purchase and sale contained an arbitration clause. In a decision dated November 21, 2019, Master Muir granted the stay, finding that section 7(1) of the Arbitration Act 1991, S.O. 1991, c. 17 required the court to grant a stay given that none of the exceptions in section 7(2) of the Act applied.

[3] The moving parties sought to appeal the Master’s order granting the stay and an earlier case management decision made by the Master. However, the moving parties commenced their appeal beyond the timelines set by the Rules of Civil Procedure. Accordingly, they brought a motion for an order extending the time to commence the appeal. In a decision dated November 17, 2020, reported at 2020 ONSC 7012, Penny J. dismissed the motion to extend the time on the basis that the appeal was manifestly devoid of merit. In particular, he found that section 7(6) of the Arbitration Act, 1991, prevents the moving parties from appealing the Master’s order.

[4] The moving parties now bring a motion to a three-member panel of the Divisional Court pursuant to section 21(5) of the Court of Justice Act, R.S.O. 1990, c. C.43, to review the motion judge’s order. A panel of the Divisional Court will only intervene to vary or set aside an order of a single judge where the judge made an error of law or a palpable and overriding error of fact: Paulsson v. The Board of Trustees of and for The University of Illinois, 2018 ONSC 6928 (Div. Ct.), at para. 8.

[5] The moving parties have not identified any errors of law or palpable and overriding errors of fact made by the motion judge.

[6] In his endorsement, the motion judge identified the correct test for deciding whether to extend the time for an appeal, which includes consideration of the merits of the appeal. He went on to focus on the merits of the appeal and correctly found that section 7(6) of the Arbitration Act, 1991 is a complete bar to the appeal. Section 7(6) of the Act provides that there is no appeal from a decision of the court staying an action on the basis of an arbitration clause.

[7] On this motion, the moving parties focus primarily on the merits of their claim against the responding parties and on the merits of their proposed appeal from the Master’s order. The merits of the action or the appeal are irrelevant to the issue of whether this court has jurisdiction to hear an appeal from the Master’s order. I agree with the motion judge that, based on section 7(6) of the Arbitration Act, 1991, the proposed appeal is devoid of any merit.

[8] The motion is dismissed. The responding parties are entitled to their costs in the amount claimed of $3,469.33.

Favreau J.

I agree _______________________________

D.L. Corbett J.

I agree _______________________________

Kristjanson J.

Date: April 9, 2021