Court File and Parties

COURT FILE NO.: CV-21-0169-00 (Brampton) DATE: 20210226

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Toronto District School Board, Plaintiff -and- Roofmart Ontario Inc., Defendants

BEFORE: F.L. Myers J.

COUNSEL: Pamela Pengelley, for the Plaintiff
Thomas J. Hanrahan, for the Defendant

READ: February 26, 2021

Endorsement

Relief Requested:

Transfer Venue to Toronto

Disposition:

Motion dismissed.

The school board may deliver cost submissions no later than March 5, 2021. Roofmart may deliver cost submissions no later than March 12, 2021. Both parties shall deliver Costs Outlines. In addition, the parties may deliver copies of any offers to settle on which they rely. Submissions shall be no longer than three pages (not counting the Cost Outlines and offers to settle).

All costs material is to be filed through the Civil Submissions Online portal and shall also be sent to me in searchable PDF format as an attachment to an email to my Judicial Assistant. No case law or statutory material is to be submitted. References to case law and statutory material, if any, shall be embedded in the parties’ submissions as hyperlinks.

Brief Reasons:

[1] The parties are embroiled in a business dispute arising from a fire at a school board property. The school board wants to arbitrate the dispute. Roofmart does not. It denies that the arbitration provision in the agreement between the parties would apply. That is, it denies that an arbitrator has jurisidction over the dispute.

[2] The competence-competence principle requires that, in all but very exceptional cases, the issue of jurisdiction is first to be submitted to the arbitrator for consideration.

[3] Roofmart has commenced a claim in this court against numerous thrid parties against whom it seeks contribution or indemnity in respect fo the school board’s claim. The school board is not a party to that proceeding. However, there is likely overlap between the issues in the arbitration and the claim in this court.

[4] The school board sought Roofmart’s input into the scheduling of its proposed application to appoint an arbitrator in Brampton. It deferred responding and said it would object to the proceeding being heard in Brampton rather than Toronto.

[5] Roofmart has an office in Brampton but nothing else about the dispute between the parties has anything to do with Brampton. All of the connections are to Toronto.

[6] On January 18, 2021, the school board proceeded unilaterally to commence the application in Brampton. It asserted that the matter should be heard urgently.

[7] Daley J. heard a case conference the day after it was commenced. Roofmart objected to the venue. Daley J. seized himself and scheduled the application returnable before himself on March 19, 2021.

[8] According to counsel for Roofmart:

[9] Section 10 of the Arbitration Act. 1991 provides for a quick process to appoint an arbitrator where a party fails to do so within seven days. There is no appeal from the order. Why is that? Because the statute seeks to avoid the very game being played out in this motion. It is inappropriate to try to use procedural steps to hinder a party from a fair hearing on the merits. The jurisdiction question needs to be decided. Unless s. 7 of the statute applies, the issue will be decided first by the arbitrator. There is no legitimate basis to refuse to choose an independent and capable arbitrator to prevent the legal process from proceeding.

[10] There is even less basis to then try to hold up this proceeding by procedural machinations like venue. While the underlying dispute between the parties is wholly Toronto-based, the question of who arbitrates has no natural connection to any venue. Roofmart may want its claim with the school board heard with its Toronto lawsuit against others. That might be an issue for the arbitrator to consider when deciding the jurisdiction question. However, it is decidedly not a strategy to be achieved by employing procedural tactics that delay and hinder the efficient, affordable, and fair consideration of the jurisdiction issue on its merits.

[11] Any judge of this court is equally capable of hearing this matter quickly and making a decision on the identity of the arbitrator. On the list I saw, there are no wrong answers.

[12] It would be a misuse of this court’s resources to engage a second judge in climbing the learning curve already undertaken by Daley J. or to make this application last one day longer or cost one dollar more than already in motion.

[13] This application should never be heard. Counsel are more than up to the task of picking a neutral, independent, experienced, capable arbitrator to guide their clients to a fair resolution process.

[14] I see no basis in Rule 13.1.02 (2)(b) to find that it is either desirable or in the interests of justice to change the venue of this application.

F.L. Myers J.

Date: February 26, 2021