ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRENDA ROSENBERG Appellant
MICHAEL RANKIN, for the Appellant
- and -
NORMAN JEFFREY YANOFSKY Respondent
RON PARITZKY, for the Respondent
HEARD: Ottawa, September 26, 2019
DECISION
Desormeau, j.
Overview
1Following a 37-year marriage which ended in 2006, and six years of negotiations, Ms. Rosenberg and Mr. Yanofsky signed a separation agreement dated August 15, 2012. The separation agreement (“Agreement”) notionally settled all outstanding issues between the parties, including equalization and spousal support. In the Agreement, the parties meticulously set out steps to be taken on the issue of spousal support to provide for an annual recalculation of income for Mr. Yanofsky to avoid double dipping and set out specific Net Disposable Income (NDI) distribution. The Agreement stipulated that income streams arising from “previously equalized property” are to be excluded in the annual support calculations. The Agreement does not define “previously equalized property”.
2Following the signing of the Agreement, the parties were unable to agree to what “previously equalized property” meant, which led the parties to the dispute resolution mechanism provided for in same. It took until 2018 for the parties to attend arbitration. The Arbitrator, Carol Cochrane, released her decision on September 10, 2018.
3The Appellant, Ms. Rosenberg, advanced that the Arbitrator erred in her legal interpretation of “previously equalized property”.
4The Arbitration Agreement provided for appeals on the Award based on a question of law (without leave), a question of fact, and/or a question of mixed fact and law. The parties also have a right to make application to the court to set aside the award in accordance with section 46 of the Arbitration Act, 1991.
5For reasons that follow, the Arbitrator’s award is hereby confirmed, and the appeal is dismissed.
Standard for Appellate Review
6An appeal is not a re-trial of a case. As such, consideration must be given to the appropriate standard of review applicable to the questions at issue on appeal.
7The decision of an arbitrator deserves as much deference on appeal as does a decision of a trial judge: Palmer v. Palmer, 2010 ONSC 1565 (Ont. S.C.J.) at para. 3 (cited in Reati v. Racz, 2016 ONSC 1967, at para. 28)
8In reaching an award, an arbitrator sits in the same position as a judge in a lower court when a decision is appealed to a higher court, and for a decision to be overturned on appeal, the appellate court must find that the reasons amount to an error law and that the decision is not correct, or that a palpable and overriding error was made on a question of mixed fact and law: Gray v. Brusby, 2008 CarswellOnt 4045 (Ont. S.C.J.) at para. 27, and Palmer, supra, at para. 5, cited in Reati v. Racz, 2016 ONSC 1967, at para. 29.
9Reati v. Racz, at para. 30, provides a helpful summary of the principles found in Housen v. Nikolaisen:
In Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.), the Supreme Court of Canada discussed in detail the standard of appellate review. The following principles emerged from that case:
a) an appellate court should not interfere with a trial judge's reasons unless there is palpable and overriding error; stated another way, an appellate court is prohibited from reviewing a trial judge's decision if there is evidence upon which the trial judge could have relied to reach that decision (para. 1);
b) the role of appellate court judges is to review the reasons in light of the arguments of the parties and relevant evidence, and then to uphold the decision unless a palpable error leading to the wrong result has been made by the trial judge (para. 4);
c) on a pure question of law, the standard of review is that of correctness (para. 8);
d) the standard of review for findings of fact is such that findings are not to be reversed unless the trial judge has made a "palpable and overriding" error (para. 11);
e) appellate courts must treat a trial judge's findings of fact with great deference, this rule being based principally on the assumption that the trier of fact is in a privileged position to assess the credibility of witnesses' testimony (para. 12);
f) a court of appeal is clearly not entitled to interfere merely because it takes a different view of the evidence; the finding of facts and the drawing of evidentiary conclusions from the facts is the province of the trial judge, not the Court of Appeal (para. 24);
g) the standard of review for factual inference is the same as for findings of fact — there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge — that of palpable and overriding error (para. 25);
h) a question of mixed fact and law involves the application of a legal standard to a set of facts; where a decision-maker applies the wrong law to a set of facts, then this will constitute an error of law subject to the standard of correctness (para. 27); and
i) matters of mixed fact and law lie along a spectrum; where a legal principle is not readily extricable so as to characterize the error as an error of law subject to the standard of correctness, then the matter is a matter of mixed fact and law subject to the more stringent standard of palpable and overriding error (paras. 36-37).
10A palpable error is one that is plainly seen: Housen. Failing palpable and overriding error in the findings or inferences of facts, deference is granted to the trial judge or arbitrator.
11The Supreme Court of Canada clarified that “questions of law” refers to the determination of what is the correct legal standard or test to employ in a particular case: Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 (S.C.C.), at para. 35. Examples of errors in law can include application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness: Housen, supra, at para. 36. In the context of commercial arbitration, where appeals are restricted to questions of law, the standard of review will be reasonableness unless the question is one that would attract the correctness standard, such as constitutional questions or questions of law of central importance to the legal system as a whole and outside the adjudicator’s expertise: Creston Moly Corp. v. Sattva Capital Corp, 2014 SCC 53, at para. 106. (Also see Piller Investments Limited v. 1594342 Ontario Limited, 2018 ONSC 5874, at para. 16)
12As set out in Creston Moly Corp., historically, determining parties’ legal rights and obligations under written contract are questions of law. Canadian courts, however, in the interpretation of contracts, have evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding”: Creston Moly Corp. v. Sattva Capital Corp, at para. 47. (Also see J.W. v. Canada (Attorney General), 2019 SCC 20 (S.C.C.).)
13The Court should not interfere with an arbitrator’s award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence, or misapprehended the evidence: O’Connell v. Awada, 2019 ONSC 273, at para. 9, citing with approval Robinson v. Robinson, [2000] O.J. No. 3299 (Ont. S.C.J.), at para. 5.
14The failure to discuss a relevant factor in depth, or even at all, is not itself a sufficient basis for an appellate court to reconsider the evidence: Housen, at para. 39. “[A]n omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.” Housen, at para. 39, citing Van de Perre v. Edwards, 2001 SCC 60 at para. 15.
15The court in Housen affirmed that the scope of appellant review is narrowly defined and dictated that the appellant court should not find the trial judge to have misapprehended or ignored evidence or came to the wrong conclusion simply because the appellant court disagrees in some inferences drawn or would emphasize different portions of the evidence: Housen, at para. 56. A difference of opinion between the inferences to be drawn from the evidence and proper weight to be placed on particular facets of the evidence is not a justifiable reason for the appellant court to re-assess the evidence, particularly where there is no error in law. The determination of weight to give to evidence is to be left to the trier of fact, particularly where conflicted evidence is presented. (See Housen, at para. 59)
16Absent proof that an omission in reasons is due to a misapprehension or neglect of the evidence, then the court can presume that the trial judge reviewed the evidence in its entirety and based its factual findings on this review: Housen at para. 72. Moreover, just because a trial judge does not discuss a certain point or particular evidence in depth is not sufficient grounds for appellate interference: Housen, ibid.
17As set out in Southam, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., at para. 36.
Discussion – Grounds of Appeal
18Ms. Rosenberg advanced that the Arbitrator erred in her legal interpretation of the parties’ separation agreement including the way the term “previously equalized property” was to be considered in determining spousal support under the Agreement. Ms. Rosenberg also argued that the Arbitrator’s determination on the first issue was unsupported by the evidence, and her reasons were unclear and inadequate, particularly regarding Mr. Martel’s evidence, and the Arbitrator’s assertion of “actuarially sound principles” which were not articulated in the evidence nor in her reasons for decision.
19Ms. Rosenberg advanced that a plain reading of the Agreement and the applicable terms to be applied under the provisions of the Family Law Act require the Tribunal to exclude the net value of the previously equalized income streams to avoid “double dipping”. This includes the value of the equalized contingent tax liability of the asset previously equalized: the pension, severance and retirement assets. By failing to use the net value, Mr. Yanofsky received a double credit for the tax component to his previously equalized income stream: the benefit he received in the equalization of the net family property under the Family Law Act and the one he will receive in determining net disposable income for spousal support purposes under the Agreement. Ms. Rosenberg alleged that this offends the “double dipping” principle set out in the Agreement and in the leading jurisprudence, resulting in manifest unfairness to her.
20Further, Ms. Rosenberg advanced that failing to consider the equalized contingent tax liabilities would lead to a result that Ms. Rosenberg would receive less spousal support under the terms of the separation agreement. It was advanced that by lowering the Respondent’s income by allowing for the deduction of the gross value of the previously equalized income streams, resulted in a lower support payable to Ms. Rosenberg to reach the 48% threshold.
21Mr. Yanofsky suggested Ms. Rosenberg’s appeal is based on the Arbitrator not accepting Ms. Rosenberg’s calculations over the actuarial calculations prepared by Mr. Martel. As set out in the Agreement, both parties agreed that Mr. Martel would be the actuary who would perform the calculation of equalized and un-equalized portions of the income stream from Mr. Yanofsky’s pension.
22At the hearing, the Arbitrator had the benefit of written briefs by both parties, cross-examination, re-examination of not only the parties but Mr. Guy Martel, and cogent submissions by counsel. In her Award, the Arbitrator provided a summary of the background evidence, including an overview of the relevant terms of the separation agreement.
23In the Abirritation Award, Ms. Cochrane reviewed the evidence, including the evidence from Ms. Rosenberg and Mr. Guy Martel. Their evidence was at odds with each other.
24Ms. Cochrane noted the following:
Pursuant to paragraph 7.1 of the separation agreement, spousal support is paid by Mr. Yanofsky in such amount as to provide him with 52% of the parties’ net disposable income (NDI) and to provide Ms. Rosenberg with 48% of their NDI.
Pursuant to paragraph 7.2 of the separation agreement, to avoid double-dipping, income streams arising from the value of previously equalized property under the Family Law Act are not to be considered for purposes of determining the amount of spousal support payable.
25Further, she noted that the Agreement incorporated the Net Family Property (“NFP”) Worksheet and included what equalization payment was due from Mr. Yanofsky to Ms. Rosenberg, the assets and contingent tax liabilities contained therein.
26Ms. Cochrane indicated that Ms. Rosenberg identified a sub-issue for determination, which was how the contingent tax liability reflected in the NFP worksheet was to be recognized and addressed in determining income as contemplated in paragraph 7.2 of the Agreement. Ms. Rosenberg’s position was that the Agreement required exclusions from income of previously equalized assets be calculated on a net basis to reflect the contingent tax liability associated with those assets.
27Ms. Cochrane noted, from Ms. Rosenberg’s perspective, paragraph 7.2 of the Separation Agreement was to be interpreted and applied based on “previously equalized property” being accorded the same meaning as “net family property” found in subsections 4(1) and 4(1.1) of the Family Law Act.
“4(1) In this Part,
‘net family property’ means the value of the property, except properly described in subsection (2), that a spouse owns on the valuation date, after deducting,
(a) The spouse’ debts and other liabilities…
4.(1.1) The liabilities referred to in clauses (a) and (b) of the definition of “net family property” in subsection (1) include any applicable contingent tax liabilities in respect of the property.”
28Further, Ms. Rosenberg’s position, at page 5 of the Award was:
The equalized portion of the gross asset minus the associated equalized portion of its contingent tax must be deducted from Line 150 income in calculating Mr. Yanofsky’s spousal support payment obligation. In Ms. Rosenberg’s submission, the deduction of the contingent tax liability must be recognized in the calculations undertaken at the time of the annual adjustment as she effectively paid half the tax on the value of the pension at valuation date by reason of the contingent tax liability being factored in to the equalization calculation. To not recognize that contingent tax liability, Ms. Rosenberg contends would penalize her financially as it would effectively provide to Mr. Yanofsky a double benefit as the contingent tax liability reduced his net family property at the time the equalization calculation was undertaken.
29Mr. Yanofsky’s position at the Arbitration was that Ms. Rosenberg’s position overcomplicated the situation. The parties agreed by the terms of the Agreement that Mr. Guy Martel would calculate the equalized and unequalized portions of the income stream from Mr. Yanofsky’s pension and to rely upon Mr. Martel’s opinion. Mr. Martel’s opinion, as expressed in his letters produced at the hearing and as affirmed in his viva voce evidence, is that the gross equalized portion of the pension income is to be deducted from the gross pension received, with no adjustment for contingent tax liability calculated at the time the equalization payment was determined.
30Ms. Cochrane went on to analyze the terms of the separation agreement. She pointed out that considerable care and attention were provided to paragraphs 7, 8 and 9 by both parties and their counsel. A central feature of the support adjustment regime was the parties’ commitment to avoid “double dipping” so that a determination of a party’s income in a given year would exclude previously equalized property. In her Award, Ms. Cochrane went into careful detail regarding the disclosure obligations, information exchange requirements, the preliminary amounts payable, the adjustment requirements, the tax consequences and the report to Canada Revenue Agency.
31At page 7 of her Award, Ms. Cochrane reached the now central issue, the interpretation and application of paragraph 7.2 of the Agreement, and “previously equalized property”. She noted that salient to paragraph 7.2 of the Agreement were the financial assets set out in the NFP worksheet:
a. Mr. Yanofsky’s lump sum severance entitlement in the amount of $48,723.34, with a contingent tax liability of $15,174.94;
b. The value of Mr. Yanofsky’s government pension in the amount of $680,855.00, with its contingent tax liability calculated at the rate of 23.8% in the amount of $162,043.49; and
c. Ms. Rosenberg’s registered retirement accounts in the combined amount of $363,492.09, with a contingent tax liability calculated at 22%, or $79,968.24.
32Ms. Cochrane addressed how the equalization payment was made by Mr. Yanofsky to Ms. Rosenberg. She then confirmed the terms of the Agreement which included a commitment by both parties to retain Guy Martel, actuary, or a substitute, to perform the calculation of the equalized versus unequaled portions of the income stream from Mr. Yanofsky’s pension.
33At pages 7 and 8 of the Award, Ms. Cochrane stated the following:
Ms. Rosenberg is a Chartered Professional Accountant as is very astute with matters relating to tax calculations and accounting principles. Her knowledge allowed her to reverse-engineer the Divorcemate software relied upon by most lawyers and Family Court judges so as to allow her to produce her own calculations created in Microsoft Excel, equivalent to those produced through the Diorcemate software.
Ms. Rosenberg takes the position that the reference in paragraph 7.2 of the Separation Agreement which identifies “previously equalized property” dictates that consideration must be given to equalized assets net of their contingent tax liabilities. Her submission is that that approach is consistent with the definitions found in s.4 of the Family Law Act in which “net family property” is defined to mean the value of all property after deducting any applicable debts and other liabilities.
Ms. Rosenberg’s position is that the equalized portion of the gross asset minus the associated equalized portion of its notional tax are to be deducted from Line 150 income in addressing the spousal support calculation. From her perspective, excluding the value of the equalized tax liability from the support calculation would result in a double benefit to Mr. Yanofsky. If the equalized contingent tax liability is ignored and only the equalized gross asset is now deducted, she posits that Mr. Yanofsky’s income and NDI will be lower and her support entitlement would be unfairly and inappropriately reduced.
Mr. Yanofsky relies upon the calculation and methodology adopted by Guy Martel as the basis for his position that it is the gross amount of the income source that is to be deducted for support purposes; not the net amount after consideration of the contingent tax liability that was considered at the time of the equalization. Mr. Martel provided a number of letters addressing, explaining and justifying his approach to the calculation.
In a nutshell, the difference in approach between Mr. Martel and Ms. Rosenberg is that Mr. Martel undertakes his calculations by deducting the gross amount of the valuation date asset from the gross amount of income in the taxation year in question to determine the unequalized income to be considered and available for support calculation purposes whereas Ms. Rosenberg takes the view that it is only the net figure (gross value of that valuation date asset less the contingent tax liability relied upon at the time of the equalization calculation) that is to be deducted.
34Ms. Cochrane concluded: “I agree with the approach and methodology adopted by Mr. Martel and find that it is wholly consistent with the provisions of the parties’ Separation Agreement of August 15, 2012.” She then stated:
Paragraph 7.2 of the Separation Agreement refers to the “value of previously equalized property”. It does not refer to “the net value of previously equalized property”; nor “the value of previously equalized property, net of tax considerations”. The Agreement refers to “previously equalized property”. (emphasis in original)
“Property” is defined under s.4 of the Family Law Act as any interest, present or future, vested or contingent, in real or personal property. It does not include in its definition debts and other liabilities. A party’s debts and other liabilities are only considered in calculating each party’s “net family property.”
In order to be fair to both parties, apples must be compared to apples and oranges to oranges. Combining the two provides a distorted result. Ms. Rosenberg takes the position that net dollars should be deducted from gross dollars. That is not sound practice and is not what was contemplated under paragraph 7.2 of the Separation Agreement.
35Ms. Cochrane then provided an illustration, somewhat like the evidence provided by Mr. Martel at the Arbitration. She indicated that comparing apples to apples and oranges to oranges, the results would be consistent. Conversely, she found that the approach suggested by Ms. Rosenberg would produce her a greater quantum of support but is not consistent with the actuarially sound principles as per Mr. Martel’s evidence nor it is in accordance with the parties’ separation agreement.
36Ms. Cochrane concluded that deducting gross dollars from gross dollars is to be applied to both the severance pay received by Mr. Yanofsky in 2013 and to his pension income stream as realized by him commencing in 2015. She referred to Mr. Martel’s calculations produced at page 109 of Exhibit 2 (Tab “C”). She applied the same methodology regarding Mr. Yanofsky’s pension, whereby the gross amount of the pension, as indexed, is to be deducted from the gross pension amount actually received by Mr. Yanofsky in the taxation year in question. She again referred to Mr. Martel’s evidence which was contained in a letter dated January 5, 2018. Finally, she stated, “[t]he parties, and their counsel, recognized the expertise of Guy Martel to calculate the equalized and unequalized portions of Mr. Yanofsky’s income stream realized from his pension. They can, and should, rely upon that expertise.”
Sufficiency, Adequacy and Clarity of Reasons
37The first issue I will address is that of sufficiency, adequacy and clarity of reasons by Ms. Cochrane to rely on Mr. Martel’s evidence, and Ms. Cochrane’s statement that Ms. Rosenberg’s approach is not consistent with actuarially sound principles as per Mr. Martel’s evidence.
38Mr. Guy Martel was the expert contemplated and named in the Agreement. Mr. Martel’s evidence was outlined at page 8, and his opinion was noted: “as expressed in his letters produced at the hearing and as affirmed in his viva voce evidence, is that the gross equalized portion of the pension income is to be deducted from the gross pension received, with no adjustment for contingent tax liability calculated at the time the equalization payment was determined”.
39As set out in the Award, and as provided in the evidence before Ms. Cochrane, Mr. Martel provided several letters addressing, explaining and justifying his approach to the calculation. He was cross examined at length regarding his conclusions. In cross examination, Ms. Rosenberg’s position was put to Mr. Martel at the Arbitration. Mr. Martel’s evidence was that Ms. Rosenberg’s suggested deduction of contingent tax liability does not make sense from an actuarial point of view. He stated that a report with the calculation as suggested by Ms. Rosenberg would be incorrect.
40The competing opinion was that of Ms. Rosenberg, a Chartered Professional Accountant. She was admittedly not an actuary.
41I have considered R. v. Sheppard 2002 SCC 26, and the duty to provide reasons that are sufficiently intelligible to permit appellant review of the correctness of the decision. It is an error in law for the trial judge not to provide an explanation of their reasons. Abella J., writing for a unanimous court in N.L.N.U. noted that the purpose of reasons, when they are required, is to demonstrate justification, transparency and intelligibility (see Myers v. Vickar, 2012 ONSC 5004, at para. 82 citing with approval N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] S.C.J. No. 62 (S.C.C.), at para. 1). Abella J. also stated “[r]easons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.”: N.L.N.U., supra, at para. 16.
42In this case, having reviewed all the evidence and Ms. Cochrane’s Arbitration Award, I note that Ms. Cochrane was writing for the parties, not the court. I find that the Arbitrator has provided sufficient reasons to demonstrate justification, transparency and intelligibility.
43Moreover, as set out in Housen, at para. 72, absent proof that an omission in reasons is due to a misapprehension or neglect of the evidence, then the court can presume that the trial judge reviewed the evidence in its entirety and based its factual findings on this review. Applicable to this case, and stated in Housen, just because a trial judge does not discuss a certain point or evidence in depth is not sufficient grounds for appellate interference.
44Although Ms. Cochrane did not discuss specifically what she found to be “actuarially sound principles”, as discussed above, the evidence was before the Arbitrator for her consideration. It was well within the Arbitrator’s purview, in weighing conflicting evidence, to place the weight she deemed appropriate to the evidence to reach her conclusions. I find on the evidentiary record that it was open to the Arbitrator to make the above finding, and that there is no basis, on appeal, to interfere with that finding. The Arbitrator made no error in principle, nor any palpable or overriding error, nor did she misapprehend the evidence. Furthermore, I find that the Arbitrator’s conclusions were sufficiently clear and adequate, and properly supported in the evidence before her.
Interpretation of the Agreement
45I turn now to the Arbitrator’s interpretation of the parties’ Agreement.
46Ms. Cochrane found as a fact that the methodology adopted by Mr. Martel was wholly consistent with the provisions of the parties’ separation agreement of August 15, 2012. She found as a fact the term “previously equalized property” does not include debts and liabilities. She found as a fact that net dollars should not be deducted from gross dollars as it is not sound practice and is not what was contemplated under paragraph 7.2 of the separation agreement.
47Ms. Cochrane found that the approach suggested by Ms. Rosenberg would produce her a greater quantum of support but was not consistent with the actuarially sound principles as per Mr. Martel’s evidence, nor was it in accordance with the parties’ separation agreement.
48Ms. Cochrane concluded that deducting gross dollars from gross dollars was to be applied to both the severance pay received by Mr. Yanofsky in 2013 and to his pension income stream as realized by him commencing in 2015.
49Questions of law are to be reviewed for correctness. In this case, the Arbitrator was tasked to provide an interpretation as to the correct definition of “previously equalized property” in the parties’ separation agreement. The Agreement is, at its root, a contractual settlement of the family law claims. The overriding concern is the intention of the parties and the scope of their understanding, which is inherently fact specific. I find therefore that this issue falls more within a question of mixed fact and law, and is subject to the more stringent standard of palpable and overriding error.
50The proposition advanced by Ms. Rosenberg was that Ms. Cochrane did not expound on, or correctly consider the word “equalized” in “previously equalized property”. As set out in Housen, just because Ms. Cochrane did not discuss the word “equalized” is not evidence that she committed any sort of error. I find as a fact that she turned her mind to the issue in reviewing the appropriate sections of the Family Law Act.
51At the appeal, both counsel conceded that they were unsuccessful in locating a case which discussed or defined “previously equalized property”. This court has no evidence regarding any legal definition or principal for “previously equalized property”. It may very well be a term invented by the lawyers who drafted the separation agreement. Unfortunately, as set out in the evidence, the lawyer who assisted Ms. Rosenberg in the drafting of the separation agreement is now deceased, and unable to shed light onto the issue. As such, it was ultimately to the Arbitrator to interpret the separation agreement.
52Despite the Appellant’s assertions, I am not persuaded that the arbitrator’s determination is incorrect or an error in law. The court has no evidence of a properly applicable legal principal regarding the words “previously equalized property”.
53Moreover, based on the evidence before the court, I am not persuaded that the Arbitrator made any error in her interpretation of “previously equalized property” from the Agreement.
54Turning now to the standard of review for findings of facts, which is such that findings are not to be reversed unless the trial judge has made a "palpable and overriding" error. Ms. Cochrane’s findings of fact are to be given great deference, as she was in a privileged position to assess the credibility of witnesses' testimony.
55I find that the Arbitrator made no error in principle, nor any palpable or overriding error, nor did she misapprehend the evidence. I am not prepared to interfere with the determinations rendered by her.
Conclusion
56For reasons set out above, I dismiss the appeal on all grounds.
57If the parties cannot otherwise agree on the issue of costs, they shall each provide, in electronic format, brief written submissions of no more than 3 pages, plus bill of costs, offers to settle and case law. Mr. Yanofsky has 20 days from the release of this Judgment. Ms. Rosenberg shall have 10 days thereafter to respond, and Mr. Yanofsky has a further 5 days after the response is served to reply, if so required.
Justice Hélène C. Desormeau
Released: November 29, 2019