COURT FILE NO.: FS-19-172-00
DATE: 20200629
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sonya Hristovski
Appellant
- and -
William Hristovski
Respondent
M. Stangarone and A. Dror, for the Appellant
S. Grant and M. Lawson, for the Respondent
HEARD: June 22, 2020 via zoom
REASONS FOR JUDGMENT
[Appeal from Arbitration Endorsement Award by Alfred A. Mamo dated July 21, 2019]
VAN MELLE, j.
[1] The appellant Sonya Hristovski seeks to set aside an Arbitration Endorsement Award made by Alfred A. Mamo dated July 21, 2019. The Endorsement Award followed a motion for disclosure whereby Sonya sought to have William produce all the disclosure requested by her expert, Steve Z. Ranot, by way of letter dated April 29, 2019.
[2] Sonya asks this court to set aside the Arbitration Endorsement Award and make an order that all items save (eee) in the letter of Mr. Ranot be ordered produced and that William provide an updated and sworn Financial Statement with supporting documentation for all the values listed.
Background
[3] Sonya and William commenced cohabitation in 1999, married in 2000 and separated on September 18, 2014. There are three children of the marriage who have their primary residence with Sonya. In addition Sonya has an adult daughter from her first marriage and William has an adult daughter from a previous relationship.
[4] Sonya commenced an Application in November 2014 to set aside a Marriage Contract that she and William entered into on June 16, 2000. In the Application, she also sought equalization, child support and spousal support. The parties agreed to move to mediation-arbitration with Alfred Mamo in March 2017. By order of Justice Woollcombe dated May 25, 2016, the issue of the validity of the Marriage Contract was severed from the other issues.
[5] The parties signed a mediation/arbitration agreement with Mr. Mamo on March 17, 2017. In August 2017 Mr. Mamo heard a single issue arbitration about the validity of the Marriage Contract. On December 6, 2017 Mr. Mamo released a decision whereby he held that the contract was valid. In his decision, he noted that the decision was confined to the validity of the contract and did not deal with whether or not the spousal support provision of the contract should be set aside based on the principles in Miglin v. Miglin or under the Family Law Act.
[6] At present William pays Sonya child and spousal support pursuant to a temporary consent order from 2016 based on William’s 2014 declared income of $677,000.
Appellant’s position
[7] Sonya takes the position that Mr. Mamo erred in denying her expert, Mr. Ranot the disclosure he was requesting in order to accurately determine William’s income for support purposes. She says that Mr. Mamo erred in characterizing Mr. Ranot’s retainer as being to complete a “Limited Critique Report” as he was retained to complete his own analysis of William’s income for support purposes.
[8] She says that Mr. Mamo was overly concerned with preserving the September 23, 2019 arbitration date at the expense of Sonya’s right to a fair hearing in accordance with section 19 of the Arbitration Act.
[9] Sonya submits that her appeal is governed by Rule 38(4) of the Family Law Rules and Rule 62.01 of the Rules of Civil Procedure. She says that section 45 of the Arbitration Act provides that a party may appeal arbitral award on a question of law, fact or mixed fact and law if the arbitration agreement so provides. She says that pursuant to the arbitration agreement, she is permitted to appeal from any arbitral award on issues of law, fact or mixed law and fact, without leave.
[10] Sonya submits that Mr. Mamo made a grave mistake and error in assuming that Mr. Ranot was preparing a Limited Critique report and that she was denied access to information that she required, thereby being deprived of her right to natural justice. She submits as well that Mr. Mamo had a duty to ensure procedural fairness.
Respondent’s Position
[11] William submits that he produced yearly income reports from his expert SB Partners, in June 2017 and in September 2018. He says that by November 2018 he had answered the production requests from Mr. Ranot.
[12] William takes the position that Sonya’s appeal should be dismissed as there is no merit to it. He says that he has made all the required disclosure and that this is yet another attempt by Sonya to delay the hearing date.
[13] William submits that the appeal should be dismissed for lack of jurisdiction.
Analysis
[14] The parties’ arbitration agreement sets out their rights of appeal:
The parties shall have the right to review the Arbitration Award in accordance with s. 46 of the Arbitration Act and such right to appeal the Award on a question of law, with leave, as provided in s. 45 of the Arbitration Act and the Family Statue Law Amendment Act.
In addition to the appeal rights provided in s. 45(1) of the Arbitration Act, a party may appeal any Award. Such appeal shall be on (check where appropriate):
X a question of law (without leave);
X a question of fact;
X a question of mixed fact and law.
[15] Although Mr. Mamo titles his decision “Arbitration Endorsement Award”, it is clear that it is an interlocutory decision. It is procedural in nature and does not dispose of the disputes between the parties. As well, Sonya in her Notice of Appeal acknowledges that the Award was a temporary order.
[16] The motion for disclosure before Mr. Mamo was in respect to Mr. Ranot’s letter of April 29, 2019 attaching a list of requested disclosure entitled “FIFTH PRODUCTION LETTER”. In the letter, Mr. Ranot references new requests for disclosure and refers as well to the Fourth Production Letter from October 17, 2017. The motion sought an order for disclosure of approximately 33 items.
[17] Mr. Mamo dealt with the requests carefully. He gave considered reasons for either allowing the request or denying the request. He had been involved with this arbitration since March 2017. He was in the best position to determine which disclosure requests were relevant and which were not.
[18] I agree with the appellant that the issue of disclosure is a very important one and that it is a significant problem in family law cases when the required disclosure is not made. However, here Mr. Mamo found that much disclosure had already been made. The parties separated in 2014. The validity of the marriage contract was determined in December 2017. Mr. Mamo felt that considering all the circumstances, the required disclosure had been made and it was time to get on with the arbitration itself.
[19] The wording in the Mediation/Arbitration Agreement is identical to the wording in the arbitration agreement in the case of Hutchinson v. Mullin, 2019 ONSC 6209. In that case Justice Lemon quoted Justice McGee with approval, in Mull v. Mull, 2018 ONSC 2427 where she said:
11 The court's jurisdiction to intervene in an arbitration process is limited. The modern approach sees arbitrations as autonomous, self-contained, and self-sufficient processes within which parties have agreed to resolve their dispute through the services of an arbitrator, and not by the courts.
12 In keeping with that modern approach, there are no appeals from interlocutory Orders. Similarly, procedural decisions, such as the interim production of disclosure are immune from review under the Arbitration Act.
13 There are sound policy reasons for courts not intervening in interlocutory Arbitration Awards: it can undermine the purposes of an arbitration process, making it less useful to disputants, and it could constitute a serious reproach to the ability of our system of arbitration to serve the needs of its users.
[20] Justice Lemon went on to consider whether or not he could hear an appeal from an interim procedural order. Taking into account Justice McGee’s decision in Mull and applying those considerations to the case before him, he said he could not.
[21] I agree with the line of reasoning in Mull and Milligan and find that I have no jurisdiction to deal with this matter.
[22] I mention here that although not addressed in either party’s factum, the question of whether or not leave was required was raised during argument. Given that I find that I have no jurisdiction, I make no comment on the issue of leave.
Result
[23] In the result, the appeal is dismissed. The parties were able to agree that the successful party would receive costs of $15,000.00 all inclusive. William will therefore have his costs of $15,000.00.
Van Melle, J.
Released: June 29, 2020
COURT FILE NO.: FS-19-172-00
DATE: 20200629
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sonya Hristovski
Appellant
- and –
William Hristovski
Respondent
REASONS FOR JUDGMENT
Van Melle J.
Released: June 29, 2020