Court File and Parties
CITATION: Saltaji v. Pinnacle Uptown Six Limited Partnership, 2026 ONSC 1271
DIVISIONAL COURT FILE NO.: DC-25-00000599-00ML DC-25-00000647-00JR DC-25-00000-651-0000
DATE: 20260304
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: HUMAM SALTAJI Appellant/Applicant/Responding Party
AND:
PINNACLE UPTOWN SIX LIMITED PARTNERSHIP Respondent/Moving Party
BEFORE: L. Brownstone, J.
COUNSEL: Jason Huang-Kung and Andrew Jia for the Appellant/Applicant/Responding Party
Joseph Blinick and Peter Douglas for the Respondent/Moving Party
HEARD at Toronto: March 2, 2026
ENDORSEMENT
Introduction
[1] The parties entered into an agreement of purchase and sale of a condominium in a new building being built by Pinnacle, the moving party. The responding party, Mr. Saltaji, was the purchaser of a condominium unit. Pinnacle added three stories to the planned building. Mr. Saltaji took the position that this was a material change to the agreement and said he was rescinding the contract. Pinnacle disagreed with Mr. Saltaji’s position. The parties proceeded to arbitration. The arbitrator found in favour of Pinnacle.
[2] Mr. Saltaji has brought three proceedings to the Divisional Court; an application for judicial review of the arbitrator’s decision, a motion for leave to appeal the arbitrator’s decision, and an appeal of the arbitrator’s decision.
[3] Pinnacle moves to quash the three proceedings on the basis that the Divisional Court has no jurisdiction to hear the matters.
Background
[4] The APS was entered into on February 15, 2022. Mr. Saltaji agreed to purchase a unit on the twentieth floor of a thirty-five-story building. In September 2023, Mr. Saltaji learned of the intended addition of three floors to the building.
[5] When Mr. Saltaji learned of the planned addition of three stories to the building, so the building would now contain 38, not 35, stories, he sent Pinnacle a notice that he was terminating the agreement because this was a material change to the APS.
[6] On about December 11, 2023, Mr. Saltaji sent a notice of arbitration to Pinnacle. The notice stated that Mr. Saltaji intended to commence arbitration under the Tarion Addendum contained at s. 15(a) of the APS, which provides:
The Vendor and Purchaser agree that disputes arising between them relating to termination of the Purchase Agreement under section 11 shall be submitted to arbitration in accordance with the Arbitration Act, 1991 and subsection 17(4) of the Ontario New Homes Warranties Plan Act, R.S.O. 1990, c. O.31 (ONWHPA)]
[7] Section 17(4) of the ONHWPA provides:
17(4) Every purchase agreement and construction contract between a vendor and prospective owner shall be deemed to contain a written agreement to submit present or future differences to arbitration, subject to appeal to the Divisional Court, and the Arbitration Act, 1991 applies.
[8] Pinnacle agreed to arbitrate, but specifically stated it did not believe that the Tarion Addendum or the ONWHPA applied. Rather, the arbitrator would have jurisdiction based on the parties’ consent to arbitrate.
[9] The parties signed an arbitration agreement which stated in part as follows:
…The Award is final and binding on the Parties, pursuant to the Ontario Arbitration Act, 1991, as amended (the "Act").
… The Parties agree that the Award is final, binding, and not subject to appeal on questions of fact. law, or mixed fact and law.
[10] The parties proceeded to arbitration before Arbitrator Huberman who considered three questions: Did Mr. Saltaji give a valid notice of recission to Pinnacle under s. 74 of the Condominium Act? Does the addition of three stories to the building amount to a material change? Was the arbitrator’s jurisdiction obtained from the ONWHPA or the Tarion addendum, or from the consent of the parties?
[11] Arbitrator Huberman determined that the rescission was not valid, that there was no material change, and that his jurisdiction was founded on the consent of the parties, not the ONWHPA or the Tarion Addendum.
Position of the Parties
[12] Pinnacle submits that the Court has no jurisdiction because the arbitrator determined that his jurisdiction stemmed from the consent of the parties to arbitrate, and not the ONWHPA. His jurisdiction is therefore governed by the Arbitration Act 1991, S.O. 1991, c. 17, not ONWHPA. The appeal provisions in ONWHPA are inapplicable and therefore irrelevant. Mr. Saltaji would have appeal avenues to the Superior Court governed by the Arbitration Act 1991, but he waived those rights in the agreement to arbitrate. Mr. Saltaji’s attempt to access this Court amounts to a collateral attack on the arbitrator’s decision that he was proceeding under the Arbitration Act, 1991 based on the consent of the parties, not ONWHPA. Finally, Pinnacle submits that an application for judicial review is not available for a decision of an arbitrator under a private agreement. Because this Court is without jurisdiction, the proceedings should be quashed.
[13] Mr. Saltaji submits that the arbitrator wrongly determined that his jurisdiction arose from the consent of the parties. Both the Tarion Addendum and s. 17(4) of the ONWHPA apply to the dispute in this case. The agreement not to appeal is invalid under ONWHPA. The appeal and review proceedings are therefore properly brought to this Court.
Analysis
[14] The parties disagree on the test the court should apply on this motion to quash. Mr. Saltaji, relying upon Schmidt v. Toronto-Dominion Bank, 1995 3502 submits that the power to quash appeals should be used sparingly, and only a minimal level of merit is needed to defeat such a motion. Pinnacle points out that Schmidt dealt with a motion to quash on the basis that the appeal was manifestly devoid of merit, not on the basis that the court lacked jurisdiction. The jurisdiction issue is a binary one. If the court has no jurisdiction, the proceedings should be quashed.
[15] Ultimately, however the test is framed, I agree with Pinnacle that if the Court has no jurisdiction, the proceedings are destined to fail and should be quashed: Davidson v CCC 73, 2019 ONSC 1818.
[16] An arbitrator has competence to determine his jurisdiction at first instance under the competence-competence doctrine. Any challenge to the arbitrator’s jurisdiction is to be heard and determined first by the arbitrator. The arbitrator does not have exclusive jurisdiction to determine this question; he has “chronological priority” to determine the matter. An arbitrator’s decision on jurisdiction is reviewable by the courts: Russian Federation v. Luxtona Limited, 2023 ONCA 393 at paras. 31-38.
[17] The question here, however, is not whether a court has jurisdiction to review the arbitrator’s decision on his jurisdiction, but rather which court has that jurisdiction.
[18] The arbitrator had two choices put to him by the parties. He might have decided that his jurisdiction stemmed from ONWHPA[^1], as Mr. Saltaji urged him to do, or that it was based in the parties’ agreement to arbitrate, as Pinnacle submitted.
[19] Arbitrator Huberman considered both submissions at some length and provided reasons for his conclusion that ONWHPA did not apply and that therefore his jurisdiction was based on the parties’ consent and governed by the Arbitration Act 1991. Arbitrator Huberman followed the decision of Kimmel J. in Grandfield Homes (Kenton) Ltd. v. Chen, 2020 ONSC 5230, in which Her Honour interpreted and applied Radewych v. Brookfield Homes (Ontario) Limited, 2007 23358 (ON SC); aff’d 2007 ONCA 721. Arbitrator Huberman reviewed the facts before him and agreed with the analysis and reasoning of Kimmel J. that “read in context, the scope of the deemed arbitration provisions of s. 17(4) of the ONHWPA is limited to disputes about warranty claims arising out of a new home purchase agreement” and did not extend to the dispute before him.
[20] I pause here to note that much of Mr. Saltaji’s submission in this Court was focused on the proper interpretation to be given to s. 17(4) and the ways in which Arbitrator Huberman and Kimmel J. erred in their respective interpretations and conclusions. I do not consider the substance of these submissions in these reasons as I believe they have no effect on the jurisdictional decision I am required to make. Although Mr. Saltaji framed the issues on this motion as requiring a determination of the proper interpretation of s. 17(4), I have found the issue before the Court to be narrower, namely, whether this Court has jurisdiction to entertain that argument.
[21] I agree with Pinnacle that once the arbitrator determined that his jurisdiction was not under ONWHPA but was under the Arbitration Act, 1991, it is that latter Act’s provisions that apply to the arbitration and any appeal route. That is not to say (absent the waiver of appeal provisions to which I will return) that Mr. Saltaji could not challenge that determination, as he could challenge the rest of Arbitrator Huberman’s decision. It is to say, rather, that any challenge he wished to launch would be governed by the Arbitration Act, 1991 and not ONWHPA.
[22] I do not accept Mr. Saltaji’s submission that because he argued the jurisdiction issue before Arbitrator Huberman, he continues to have appeal rights under ONWHPA. Mr. Saltaji agreed that Arbitrator Huberman could determine this issue. It should be no surprise to him that consequences flow from Arbitrator Huberman’s decision, and one of those consequences is an effect on appeal routes.
[23] It is not unusual for a substantive decision to affect appeal routes. For example, a party who argues a motion to strike a pleading has a different avenue of appeal depending upon the substantive decision that is made. The substantive decision will determine whether the order is interlocutory or final, and thus where the appeal route lies.
[24] In this case, Arbitrator Huberman’s substantive decision that the parties’ consent is the basis for his jurisdiction means it is the Arbitration Act, 1991 that governs the parties’ appeal rights and routes. This was a foreseeable consequence of submitting the jurisdiction question to the arbitrator.
[25] As noted above, the parties agreed that the arbitrator’s decision was to be final and binding, and there would be no rights of appeal. Such an agreement is permitted under the Arbitration Act, 1991. Mr. Saltaji does not dispute this and does not suggest he did not knowingly and willingly agree to the arbitration agreement’s terms. He does not suggest the agreement to arbitrate was improper or should be set aside.
[26] Rather, Mr. Saltaji submits that the clauses eliminating appeal rights are ineffective under s. 1.2 of ONWHPA, which provides that “[t]his Act applies despite any agreement to the contrary.” Pinnacle agrees that, had Arbitrator Huberman determined that his jurisdiction stemmed from ONWHPA, the “final and binding” provisions in the agreement would be of no force and effect, given s. 1.2 of ONWHPA. In that case, the decision would be “subject to appeal to the Divisional Court, and the Arbitration Act, 1991” would apply, as provided in s. 17(4) of ONWHPA.
[27] But that is not what occurred. Once Arbitrator Huberman determined the agreement of the parties and the Arbitration Act, 1991 grounded his jurisdiction, that Act governed the dispute between the parties, including procedural issues and appeal routes.
[28] Mr. Saltaji submits that this is unfair because, given his agreement to waive his appeal rights under the Arbitration Act, 1991, Pinnacle has now placed Arbitrator Huberman’s decision beyond the reach of the Court.
[29] It is not Pinnacle who has effected this result. Mr. Saltaji himself agreed to waive his appeal rights under the Arbitration Act, 1991. He knew or ought to have known that the only way his appeal (or leave to appeal) right would be sustained would be if Arbitrator Huberman accepted his jurisdiction argument and determined the proceeding was being carried out pursuant to ONWHPA. It is Mr. Saltaji’s own decision to waive his rights, not the actions of Pinnacle, that have placed Arbitrator Huberman’s decision beyond the reach of the Court.
[30] To summarize, absent his waiver of appeal rights, Mr. Saltaji’s appeal rights would be to the Superior Court in accordance with the Arbitration Act, 1991. He has no rights to appeal to this Court, as the proceeding he seeks to appeal and review was determined to be governed by the Arbitration Act, 1991, not ONWHPA. His attempt to appeal to this court is a collateral attack on the arbitrator's jurisdiction decision, as he seeks to circumvent the effect of the arbitrator’s decision.
[31] Counsel for Mr. Saltaji acknowledged in argument that if it is the Arbitration Act, 1991, and not ONWHPA that governs these proceedings, his three proceedings are properly quashed. This Court has no jurisdiction under the Arbitration Act, 1991, and an application for judicial review is not available for a private arbitrator’s decision: Adams v. Canada, 2011 ONSC 325; Universal Settlements Int’l Inc. v. Duscio, 2011 ONSC 41.
Disposition
[32] For the reasons above, Pinnacle’s motion is granted. Mr. Saltaji’s three proceedings are quashed. In accordance with the agreement of the parties, costs are payable by Mr. Saltaji to Pinnacle in the amount of $12,000 inclusive within 30 days.
Date: March 4, 2026
________________________
L. Brownstone J.
[^1]: The argument advanced by Mr. Saltaji and considered by Arbitrator Huberman was that his jurisdiction came from both the Tarion Addendum and ONWHPA. I refer to these together throughout these reasons as ONWHPA.