SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-09-1991-2
DATE: 2015/07/31
RE: Louis Desjardins, Applicant
AND
Andrée Gillin, Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Julius Dawn, for the Applicant
Gordon E. Sheiner, for the Respondent
HEARD: July 15, 2015
ENDORSEMENT
[1] The application by Mr. Desjardins is for relief with respect to an Arbitration Agreement executed by the parties in April 2008, a Separation Agreement dated February 4, 2004, and the Amending Agreement dated several months thereafter (signed by the respondent in September 2004 and by the applicant in November 2004).
[2] The arbitrator appointed by the parties is the late, Gary Steinberg who passed away in November 2013.
[3] The relief sought on the application is essentially for the arbitration to be converted to a proceeding within the Ontario Superior Court of Justice, for the pleadings previously filed in the arbitration to be filed with this Court as pleadings, and for the Court proceeding to be case managed. In the alternative, Mr. Desjardins seeks the appointment of an arbitrator and for the Court to give directions with respect to the continuation of the arbitration proceeding.
[4] At the case conference on July 15, 2015, counsel appeared on behalf of Mr. Desjardins. Ms. Gillen did not appear, personally or as represented by counsel. At the case conference, counsel for Mr. Desjardins presented the Court with minutes of settlement and a draft order. The documents were not: a) consistent as between one another; and b) workable or accurate when reference was made back to the Separation Agreement and the Amending Agreement. As a result, an order based on the minutes of settlement could not be made.
[5] Counsel for Mr. Desjardins was asked to return to Ms. Gillen with revised documents which addressed concerns (a) and (b) above and, assuming Ms. Gillen executed the requisite documents, to deliver to the Court revised minutes of settlement and a revised draft order. Under cover of a letter dated July 20, 2007 [sic, 2015], counsel for Mr. Desjardins provided the Court with: a) revised minutes of settlement executed by Mr. Desjardins on July 7, 2015 and by Ms. Gillen on July 13, 2015; and b) a consent (with an attached order approved as to form and content) signed by Mr. Desjardins on July 15, 2015 and by Ms. Gillen on July 17, 2015.
[6] The minutes of settlement provided under cover of the July 20 letter are in a form consistent with the Separation Agreement and the Amending Agreement. The terms of the minutes of settlement are not incorporated into the draft order (and therefore the consent) in a logical manner in terms of reference back to the Separation Agreement and Amending Agreement. The draft order to which the parties consent includes terms in addition to those reflected in the minutes of settlement.
[7] On further review of the matter, it is clear that the minutes of settlement and the majority of the terms of the draft order have nothing to do with the relief requested by Mr. Desjardins on the application. Upon re-reading the notice of application and review of the relevant sections of the Arbitration Act, it is clear that in bringing the matter before the Court as they did the parties have not addressed or do not appreciate the limitations on the Court’s jurisdiction to ‘interfere’ in matters in which the parties agreed to proceed to arbitration.
[8] There is no evidence of any kind filed on the application. No doubt I am in a position to take judicial notice of the death of arbitrator, Gary Steinberg, in 2013 and that the parties are without an arbitrator. However, there is no evidence that the parties agree to have the Court deal with matters. The minutes of settlement do not address that issue.
[9] Pursuant to section 6 of the Arbitration Act, S.O. 1991, c. 17, the only potential basis for the Court to ‘intervene’ is item 1 – “To assist the conducting of arbitrations.” (i.e. in the absence of an arbitrator and pending the appointment by the Court or by the parties of another arbitrator). However, I am of the opinion that the section does not give the Court the authority to do that which I’m being asked to do – make an order based on the provisions of minutes of settlement (which amend a prior Separation Agreement and Amending Agreement) and the consent of the parties to other terms.
[10] In response to the application before the Court, Ms. Gillen could, had she wished to do so, have applied for a stay of the court proceeding (see section 7 of the Arbitration Act). That Ms. Gillen chose not to pursue an order staying the proceeding does not overcome the issue raised in paragraph 9 above – the apparent lack of jurisdiction of the Court to deal with the matters addressed in the minutes of settlement and in the additional terms of the draft order on consent.
[11] I apologise to the parties for requesting that they take additional steps (refinement of the minutes of settlement, etc.) and now declining to incorporate the terms of the minutes of settlement into an order of the Court. The refinement of the minutes of settlement was not a waste of time and resources. The refinement was required if the minutes of settlement are to be workable in conjunction with the previous two Agreements.
[12] With the parties having reached minutes of settlement they: a) do not require (and, in any event, are not entitled to) the assistance of the Court; and b) are in a position to execute an Amending Agreement as they did in the fall of 2004.
[13] With respect to the specific relief requested on the application, I make no order. It remains open to the parties to agree upon an arbitrator to replace the late Gary Steinberg for the purpose of presiding over any matters which may arise in the future. If the parties are unable to agree upon an arbitrator to replace the late Gary Steinberg they may, on the basis of the application and section 6 of the Arbitrations Act return to the Court for an order appointing an arbitrator.
[14] The ‘other’ terms to which the parties consented are as follows:
Each party shall bear their own costs.
Unless the support Order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support Order shall be paid to the Director, who shall pay them to the person to whom they are owed.
This order bears post-judgment interest at the rate of 2 per cent per year effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
[15] For the reasons set out above, I am unable to make an order on terms 1 through 3 above.
Date: July 31, 2015
Justice S. Corthorn
COURT FILE NO.: FC-09-1991-2
DATE: 2015/07/31
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Louis Desjardins, Applicant
AND
Andrée Gillin, Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Julius Dawn, for the Applicant
Gordon E. Sheiner, for the Respondent
ENDORSEMENT
Justice S. Corthorn
Released: July 31, 2015