SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-18244

DATE: 20130816

RE: Maria Ferreira, Applicant, Responding Party

AND:

John Esteireiro, Respondent, Moving Party

BEFORE: H. Sachs J.

COUNSEL:
J. DeMarco, Counsel, for the Applicant, Responding Party

J. Nicoll, Counsel, for the Respondent, Moving Party

HEARD: August 15, 2013

ENDORSEMENT

Nature of the Motion

[1] On this motion Mr. Esteireiro is seeking an Order incorporating the terms of the Arbitral Award rendered by Ms. Cheryl Goldhart, which was released on May 24, 2013 (the “Award”). Ms. Ferreira opposes the request on the basis that on July 26, 2013, she commenced an application seeking to set aside the Award.

History of the Proceedings

[2] The essential history leading up to the Award is summarized in the endorsement of Mesbur J. dated July 4, 2013. I will not repeat it here.

[3] After the Award was released, Ms. Ferreira brought a motion for leave to appeal the Award. That motion was heard by Mesbur J. and dismissed on July 4, 2013 on the basis that the appeal did not raise any questions of law.

Summary of the Position of the Parties on this Motion

[4] Now that the motion for leave to appeal has been dismissed, Mr. Esteireiro wishes to take steps to enforce the Award. To do so he needs a court order. He submits that the application to set aside the Award is simply an attempt to reargue the same matters that were argued before Mesbur J.

[5] Ms. Ferreiro submits that her application to set aside the Award is brought in good faith and that Mr. Esteireiro should not be able to enforce the Award until that application has been disposed of.

The Law

[6] Section 59.8 of the Family Law Act, R.S.O. 1990, c. F.3 as amended governs the enforcement of family arbitration awards. It provides that an application or motion to enforce such an award must be accompanied by certain documents, all of which were provided in this case.

[7] It also provides that if there is a pending appeal or application, the court may still make an order on the same terms as the award. The court may also impose conditions if such an order is made (s. 59.8 (5)).

[8] Under s. 46(1) of the Arbitration Act, 1991, S.O. 1991, c. 17, as amended, a court may set aside an award for certain specific reasons. It is the position of Ms. Ferreira that her application raises a number of the issues s. 46(1) is meant to address and that these issues were not covered by Mesbur J.’s order or, if they were, she is entitled to pursue the matter again through an application to set aside.

Analysis

[9] On the application to set aside, Ms. Ferreira argues that the agreement “deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement” (s. 46(1) 3 of the Arbitration Act).

[10] The essence of this submission is exactly the same issue that she raised in her motion for leave to appeal – namely, whether the arbitrator dealt with the issue that she was asked to deal with. Mesbur J. reviewed the evidence on this point and concluded that the arbitrator did deal with the issue she was asked to adjudicate and therefore there could be no error of law on this basis.

[11] On the application to set aside, Ms. Ferreira raises a complaint about certain evidence that the arbitrator relied upon in making her decision. This is not a basis for setting aside an arbitration award and it is an issue that she raised in her leave to appeal motion, which was dismissed.

[12] On the application to set aside, Ms. Ferreira complains that she “was not treated equally and fairly” and was not given an opportunity to present her case or to respond to Mr. Esteireiro’s case. She also alleges that there was a reasonable apprehension of bias on the part of the arbitrator. These can be grounds for setting aside an arbitration award. However, Ms. Ferreira made the allegation that she was denied natural justice and that there was a reasonable apprehension of bias on the part of the arbitrator in her motion for leave to appeal the Award. Mesbur J. found that there was no basis for the allegations. In her application to set aside, Ms. Ferreira has attempted to particularize the allegations by including assertions (for the first time) that the arbitrator was a good friend of counsel for Mr. Esteireiro and had been seen socializing with her shortly before the arbitration. First, there is reason to question the evidentiary basis for this assertion. Second, the fact that the arbitrator may be friends with counsel is not sufficient to raise a concern about reasonable apprehension of bias. Third, the arbitrator was suggested by counsel for Ms. Ferreira, not counsel for Mr. Esteireiro (who had put forth other names).

[13] In my view, the application to set aside is simply an attempt to reargue the issues that were raised unsuccessfully on the motion for leave to appeal. To allow its existence to stand in the way of Mr. Esteireiro’s ability to enforce the Award would be to undermine the regime in place to ensure the enforceability of family arbitration awards.

Conclusion

[14] For these reasons, the request for an Order incorporating the terms of the Award is granted. Mr. Esteireiro has also brought a motion for security for costs, which he agreed should be adjourned sine die, returnable on 7 days' notice. It is so ordered.

[15] As the successful party, Mr. Esteireiro is entitled to his costs of this motion, which I fix at $5000.00, inclusive of disbursements and taxes.

H. SACHS J.

Date: