David Surowiec v. Trudy Surowiec, 2016 ONSC 1095
LINDSAY COURT FILE NO.: 319/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Surowiec, Applicant
AND:
Trudy Surowiec, Respondent
BEFORE: Gunsolus, J.
COUNSEL: Shawn McNamara, Counsel, for the Applicant
Susan Peel, Counsel, for the Respondent
HEARD: 11 February 2016
ENDORSEMENT
1The applicant, David Surowiec, brings this motion seeking leave to appeal, the arbitration decision of David Tonge, dated November 11, 2015.
2It is the applicant’s position that the arbitrator did not hold a hearing (informal or otherwise) that provided the applicant the opportunity to present his case and to respond to the respondent’s case.
3The respondent has taken the position that the mediation process was undertaken by the arbitrator and when the mediation failed, the arbitrator, based upon the information that he had received during the mediation process, provided his decision in relation to those issues that the parties were unable to come to terms on.
4It is to be noted that mediation was conducted as “Shuttle Mediation” based upon the mediator’s appropriate assessment. At issue is an arbitration process to which the mediator’s assessment does not apply.
5In this matter the parties entered into a mediation/ arbitration agreement pursuant to the Arbitration Act SO, 1991, C17.
6Paragraph 9 provided for the Procedure for Arbitration in circumstances where mediation was to be terminated and the arbitration process commenced. Paragraph 9 allowed, amongst other things, for the arbitrator to determine the date and time arbitration was to occur, in consultation with the parties. It was agreed that the arbitrator could admit into evidence, documents or other information received by him during the mediation phase and the parties consented to the use of any such information in the arbitration process. The only persons that were to be in attendance at the arbitration were to be the applicant, the respondent and the arbitrator. The order and manner of presentation at the arbitration was to be in the sole discretion of the mediator.
7Counsel for both the applicant and the respondent conceded that an arbitration process as contemplated by paragraph 9 was not undertaken. Rather, the arbitrator used the information that he obtained during the mediation process in order to provide his conclusions and the reasons for those conclusions. This is in effect, a motion for leave to appeal, based primarily on process.
8The Family Law Act and the Arbitration Act govern family arbitrations, family arbitration agreements and family arbitration awards. The Family Law Act prevails in the event of any conflict between the two Acts. A party may appeal an award to the Court on a question of law with leave. By virtue of the party’s mediation/ arbitration agreement, this appeal is limited to a question of law. Therefore the standard of review is correctness.1
9A court should not interfere with an arbitration award unless the arbitrator acted on the basis of a wrong principle, disregarded material evidence or misapprehended the evidence.2
10The sole issue for me to determine today is whether or not there was an error of law.
11In an arbitration process, minimum requirements require that the arbitration process:
must treat the parties equally and fairly;
must give each party an opportunity to present a case and respond to the case of the other party;
must afford the parties a procedure in accordance with the Law of Ontario and no other law.
12Natural justice implies that each party must know the case that they have to meet and they must be given a full opportunity to present their case and to respond to the other party’s case.
13It was clear to me from the terms of the mediation/ arbitration agreement entered into by the parties, that the agreement did not mandate the utilization of a court like hearing let alone a process similar to court procedure. Indeed family law arbitrations are not required to mirror the court process and I’m satisfied that, the parties were treated equally and fairly and the arbitrator applied the Law of Ontario and no other law.
14However, there is no evidence, and counsel could provide me with no evidence, that a hearing informal or otherwise was conducted as contemplated by paragraph 9 of the mediation/ arbitration agreement entered into by these parties with the mediator/ arbitrator. There is a question therefore as to whether each party was given an opportunity to present his or her case and to respond to the other party’s case in these circumstances. To the extent that the procedure for arbitration was not followed by the arbitrator in accordance with paragraph 9 of the mediation/ arbitration agreement, this would be an error in law.
15In Hercus v. Hercus3, Madam Justice Templeton stated amongst other things:
“It is said at law that the right to a fair hearing is an independent and unqualified right. Arbitrators must listen fairly to both sides, give parties a fair opportunity to contradict or correct prejudicial statements, not receive evidence from one party behind the back of the other and ensure that the parties know the case they have to meet. An unbiased appearance, in itself is an essential component of procedural fairness.”
16As the arbitrator in this matter did not meet together with both parties as contemplated by paragraph 9 of the mediation/ arbitration agreement, the applicant has taken the position that he was not made aware of all of the aspects of the respondent’s case and therefore was not given an opportunity to respond. Based upon the clear provisions of the mediation/ arbitration agreement, at the very least a process should have been conducted by the arbitrator with both the applicant and the respondent present in order that they could hear each other’s case and respond to the case accordingly.
17An order will therefore issue granting the applicant leave to appeal as requested.
18Having come to this conclusion, I point out that this motion concerns only the issue of whether or not to grant leave to appeal as a question of law. This decision in no way comments upon the decision and reasons of the arbitrator. Granting leave to appeal today means that this process will leave the children, who are the subject of this matter, caught between the positions of each parent. I urge the parties to consider all possible options in relation to coming to a swift resolution in order to alleviate the pressure that clearly is being brought to bear on these children. Perhaps the appointment of the Children’s Lawyers Office, requesting an investigation, would go a long way to allow the parents to, in a less adversarial process, put forth their positions. The parties must realize that the arbitrator in this matter is a very experienced assessor, mediator and arbitrator and prolonging this ligation unnecessarily, could well lead to the same or a similar result. In the end, it will be their children who will lose the opportunity to spend time with each parent, and, to love and be loved by each parent with the knowledge that both parents fully support and encourage their relationship with the other parent.
Gunsolus, J.
Date: 12 February 2016