COURT FILE NO.: CV-22-88458 DATE: 2023/03/14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Greg Burwell, The Burwell Family Trust, and 8442568 Canada Inc., Applicant – and – Marta Wozniak, Respondent

COUNSEL: Anne Tardif, James Plotkin and Miriam Vale Peters, for the Applicant Geoffrey Cullwick and Ronald Prehogan, for the Respondent

HEARD: December 13, 2022

AMENDED REASONS FOR DECISION

The text of the original decision was amended on March 14, 2023, and the description of the amendment is appended.

Justice K.A. Jensen

Introduction

[1] This is an appeal of a decision rendered by Arbitrator Rohan Bansie on January 1, 2022. The appellant, Greg Burwell (“Greg”) appeals the Arbitrator’s award pursuant to s. 45 of the Arbitration Act, 1991, (“the Act” or “the Arbitration Act”) and asks this Court to review the Arbitrator's jurisdictional decision pursuant to s. 46(1) 3 of the Act.

[2] On January 1, 2022, the Arbitrator issued a decision in which he found that the Respondent, Marta Wozniak (“Marta”), was the beneficial owner of 50% of Greg’s shares in a company he helped create called Fusebill. The Arbitrator found that when Fusebill was sold in March 2021, Marta was entitled to 50% of all amounts payable with respect to Greg’s Fusebill shares (collectively referred to as “the Personal Shares”).

[3] The Arbitrator based his conclusion on his finding that an email sent by Greg on October 18, 2011 (“the October 18 email”) to Marta, created an express trust in which Greg granted Marta the beneficial interest in 50% of all the Personal Shares. The Arbitrator found that the October 18 email constituted a promise that was formalized by the subsequent establishment of a family trust (“the Burwell Family Trust”) in December of 2011. The Burwell Family Trust subscribed for and was issued shares in Fusebill, but these shares were not Greg’s Personal Shares. Rather, they were what is referred to as the Trust Shares.

[4] For the reasons that follow, I have granted leave for Greg to appeal the Arbitrator’s award on a question of law. I find that the Arbitrator erred in law by permitting the October 18 email to overwhelm the terms of the Burwell Family Trust. The Arbitrator essentially created a new trust based on the October 18 email, the terms of which conflicted with the Burwell Family Trust agreement. I find that there was only one trust – the Burwell Family Trust. As a beneficiary of the Burwell Family Trust, Marta has a beneficial interest in the Trust Shares. The October 18 email did not create a valid trust granting Marta a 50% beneficial interest in Greg’s Personal Shares.

[5] Given that the parties did not argue the issue of proprietary estoppel before me, I am remitting this issue to the Arbitrator. The Arbitrator should also make the appropriate final disposition, taking into account my decision with respect to the trust issue.

Factual Background

[6] Greg and Marta were in a conjugal relationship from about September 2010 until December 2013.

[7] In June of 2011, Greg started a company called Fusebill Inc. with his friend Tyler Eyamie (“Tyler”). The company provided a software platform to help companies manage their subscriber-based billing systems for recurring transactions. Greg’s role was primarily the technical lead, while Tyler focused on sales and the business aspects of the enterprise. Marta did some work to assist in getting the company going. She was not financially compensated for her work.

[8] When Fusebill was incorporated in June of 2011, Greg and Tyler each subscribed for and were issued 4.5 million Class ‘A’ Common Shares in the company. Greg’s shares and those he subsequently obtained, are referred to collectively as the Personal Shares, or Greg’s Personal Shares. In September 2011, Greg worked with a lawyer to set up a family trust, which is referred to as the Burwell Family Trust.

The October 18 Email

[9] The couple had a tumultuous three-year relationship that resulted in periods of separation. During one such period of separation in 2011, Greg wrote the October 18 email in which he stated that he was prepared to “fight” for the relationship and Marta. The following is an excerpt from this important email:

“If you can ever find it [in] your beautiful soul to forgive me and move forward, I vow to you the following ... this is my actions list:

• I will cease communication with my dealers
• I will submit to random drug testing ...
• I will see my therapist/sponsor and continue to see them so I keep my issue in check
• I will attend couples therapy ...
• I will divulge our financial status to you in its entirety, and share visibility/control of my accounts & credit cards to help you feel financially secure
• (this one is in progress) I am appointing you the sole beneficiary of the family trust which will hold all Fusebill shares, with you being the sole beneficiary you are entitled to 50% of the holdings if I am alive, if not you are entitled to 100%, once we sign this document 50% of the 4.5 million shares of Fusebill are yours regardless of what happens. You are right, you have been by my side for this and until today I didn't realize how much of a rock you were for me, so I consider you to be my cofounder. So you have earned it.” (emphasis added)
• I will set up a joint account with you where we can pay the bills and our everyday living
• I would like to understand the debt you have so I can help you get rid of it
• I will support all of this with a will and the legal trust documents ...
• I promise to keep my promises and be truthful about everything. [Emphasis in the original]

I want to do everything in my power to get you back to who you were, this is who I fell in love with, and I ruined that. I understand that you need to do a lot of that on your own and I support this, but I am here for anything you need.”

The Burwell Family Trust

[10] Marta and Greg reconciled after the October 18 email was sent, and she moved back into the home that they shared. Greg and Marta then worked together on completing the Burwell Family Trust.

[11] Pursuant to the Burwell Family Trust, Tyler settled (created) the Family Trust by transferring $20 to Greg and Marta, who were appointed co-trustees of the Trust. The Family Trust’s subject matter consisted of this $20, plus whatever property might be subsequently transferred to the trustees to be held in trust. The beneficiaries were Greg, Marta, their future children, and several other family members. The trust was discretionary, meaning that the Burwell Family Trust Agreement did not specify each beneficiary’s interest in the Trust property. Instead, each beneficiary’s interest was subject to the trustees’ discretion.

[12] On December 16, 2011, Greg and Marta signed the document creating the Burwell Family Trust. On December 23, 2011, the trust subscribed for 4.5 million Class ‘A’ Common Shares of Fusebill (“the Trust Shares”).

Greg Did Not Transfer His Personal Shares to the Trust

[13] As noted above, when Fusebill was incorporated in June of 2011, Greg and Tyler each subscribed for and were issued 4.5 million Class ‘A’ Common Shares in the company. Subsequently, on April 24, 2012, Greg subscribed for a further 231,525 Class A Common Shares of Fusebill. Greg did not transfer his Personal Shares to the Burwell Family Trust. Rather, as we shall see below, he transferred his Personal Shares to his personal holding company.

The Reorganization of Fusebill

[14] On March 7, 2013, Fusebill underwent a re-organization, which resulted in the conversion of the shares. The shares that were issued to Greg on June 11, 2011 (4.5 million Class ‘A’ Common Shares) and on April 24, 2012 (231,525 Class ‘A’ Common Shares) were converted to 1,737,203 Class ‘A’ Common Shares. The shares that were issued to the Burwell Family Trust (4.5 million Class ‘A’ Common Shares) were converted to 450,000 Class A Common Shares (hereinafter the “Trust Shares”). This conversion is not in dispute in the present proceedings.

[15] Greg then transferred his 1,737,203 Personal Shares to his personal holding corporation, 8442568 Canada Inc. (“844”).

The End of Greg and Marta’s Relationship

[16] On or about January 1, 2014, Marta and Greg’s relationship ended and Marta moved out of the property they shared. An agreement was reached with respect to the sale of the home they shared, their vehicles and some chattels.

[17] Greg and Marta did not have any further communication until Greg asked Marta to resign as a trustee to the Burwell Family Trust in the Fall of 2019. Marta refused to do so.

The Interim and Escrow Agreement

[18] On or about February 11, 2021, Greg emailed Marta to advise her that Fusebill was going to be sold. He urged her to resign as trustee and said that there was little value left in the shares that were held in the Burwell Family Trust. Marta asserted a 50% interest in both the Personal Shares and the Trust Shares. These shares are collectively referred to as the “Burwell Shares” or “the Fusebill Shares”. Greg disputed Marta’s claim.

[19] The impasse created by the positions taken by Greg and Marta could have jeopardized the closing of the transaction. Therefore, Marta and Greg entered into an Interim Agreement and Escrow Agreement, which provided that 50% of the proceeds of the sale of the Burwell Shares would be held in trust by a law firm after closing until the parties settled Marta’s claim or a decision was issued in the mediation-arbitration procedure. The parties agreed that, upon closing of the transaction, the sum of $380,879.88 USD would be withheld by the law firm, pursuant to the Escrow Agreement.

[20] The wording of the Interim Agreement is as follows:

AND WHEREAS Marta claims that 844 holds 50% of the Burwell Shares in trust for her (the “Claim”), and Greg and 844 dispute the Claim;

AND WHEREAS in order to allow the sale of the Burwell Shares to proceed under the Fusebill Agreement, the parties have agreed that 50% of all amounts to be paid to 844 with respect to the Burwell Shares under the Fusebill Agreement will be placed in a separate escrow account in US currency for the purposes of this dispute (the “Escrow Account”) with LaBarge Weinstein LLP (“LW”) pursuant to the terms of an Escrow Agreement between the parties hereto “Escrow Agreement”) pending resolution of the disputed Claim; (emphasis added)

[21] The Escrow Agreement, dated March 11, 2021, provides as follows:

On the date hereof, in connection with the execution and delivery of the Trust’s signature page to the Purchase Agreement, the Parties have entered into the Interim Agreement (the “Interim Agreement”) pursuant to which, among other things, the Parties agreed that 50% of the proceeds of sale for the shares of 844, which, following a pre-closing tax reorganization, shall include the shares of the Trust, less any escrow or other holdbacks pursuant to the Purchase Agreement (the “Escrow Amount”], together with any amounts payable in respect of the shares held by 844 as and when paid pursuant to the Purchase Agreement, shall be held in trust by the Escrow Agent in accordance with this Agreement pending a determination or settlement of the dispute as outlined in clause 6 of the Interim Agreement. (emphasis added)

[22] Pursuant to the Escrow Agreement, the law firm of LaBarge Weinstein is holding $380,879.88 USD in escrow (the “Escrowed Funds”) pending the result of this matter. Roughly $303,440 USD of the total Escrowed Funds is attributable to the 844 Shares and roughly $77,439 USD is attributable to the Trust Shares.

The Share Purchase and Contribution Agreement

[23] On March 11, 2021, Fusebill was sold pursuant to a share purchase and contribution agreement (“SPCA”).

[24] Immediately prior to the closing of the sale, the Burwell Family Trust transferred all of its Fusebill Shares to 844, in exchange for shares in 844. All of the Fusebill Shares were sold to the Purchaser.

[25] The “Purchase Price” for the sale of Fusebill was structured in the SPCA as follows:

1.2 Purchase Price. (a) The aggregate consideration payable by (i) Parent in respect of the Rollover Notes, is the Rollover Consideration, and (ii) Purchaser, in respect of the Shares, is the Cash Purchase Price, subject to adjustment pursuant to Section 1.2(b) and Section 1.3 (from which the Adjustment Escrow Amount and the Indemnity Escrow Amount shall be paid to the Escrow Agent in accordance with Section 1.2(d)).

[26] Thus, the SPCA set out two transactions making up the total payout for the purchase of Fusebill: (i) the purchaser (“Purchaser”) would purchase all Fusebill Shares from Fusebill’s 35 shareholders (“the Cash Purchase Price”), and (ii) the Parent company (“Parent”) would purchase two non-interest bearing notes (“the Notes”), from each of Greg and Tyler’s personal corporations. The SPCA specified that the Notes were to be issued by Fusebill on the closing date, as dividends, to Greg and Tyler’s personal corporations “to facilitate the mechanism of the payments agreed to be paid to the Founders” (SPCA, page 199).

[27] With regard to the mechanism of the payments for the Notes, the SPCA again provided two vehicles for the conveyance of that consideration: (i) The first note would be settled in cash. (ii) The second note, defined as the “Rollover Note”, was sold by the personal corporations of Tyler and Greg to the Parent company in exchange for 2.4 million Parent Units (defined in the SPCA as “the Rollover Consideration”). Thus, Fusebill’s founders (Greg and Tyler) each received equity in the Parent company, through their personal corporations as part of the payment for the sale of Fusebill.

The Arbitrator's Decision

The Jurisdiction Decision

[28] Marta initially claimed 50% of the price paid for the Burwell Shares. She then amended her claim to seek 50% of all further amounts required to be paid to the Family Trust and 844 pursuant to the SPCA. This amounted to a claim for 50% of the second transaction under the SPCA, which involved the Rollover Notes and equity in the Purchaser Parent Company.

[29] Greg moved to strike out the amendments, arguing they fell outside the scope of Marta’s Claim. The Arbitrator heard and dismissed the motion on September 9, 2021. At Greg’s request, the Arbitrator provided written reasons for his decision on January 12, 2022.

[30] In his Decision on the motion, the Arbitrator examined the Interim Agreement, the Escrow Agreement and the Irrevocable Payment Direction to determine the scope of his jurisdiction. The wording of these agreements led the Arbitrator to conclude that what was in issue in the arbitration was whether Marta was entitled to “50% of ‘all amounts’ paid in relation to the subject shares” (paragraph 24 of the Decision on the Motion, delivered orally on September 9, 2021 (“the Motion Decision”)). The Arbitrator considered the Rollover Consideration to be payment in relation to the Burwell Shares, even though part of the consideration consisted of equity in the Parent Company.

[31] Therefore, the Arbitrator allowed the motion to amend the application and ordered Greg to produce information regarding the amounts paid in relation to all aspects of the SPCA.

The Limitations Act Issue

[32] During the arbitration, Greg argued that Marta ought to have been aware of the number of shares he held in Fusebill between June and July 2014, when they were discussing the division of their joint property. She did not, at that time, advance a claim for a 50% ownership or interest in them. Therefore, Greg argued, she was barred from doing so in 2021. Essentially, he argued that because she did not bring the claim within two years of June 2014, she was barred by the Limitations Act, 2000, S.O. 2002, c. 24, Sched. B from bringing the claim in 2021.

[33] The Arbitrator found that “[l]ooking at the totality of the situation, in 2014 there was a disclosure of the shares owned by Greg,” but “Marta had a document that promised her a 50% ownership of his Fusebill shares ‘regardless of what happens ... you have earned it’” (paragraph 60 of the Decision). Therefore, he held at paragraph 61 of the Decision:

…while Marta had known for several years that she had an interest in the shares, it was not until the weeks leading up to the closing of the Fusebill sale that she became aware of a potential claim consequential to Greg’s denial of her ownership interest. Her claim is not statue barred.

The Merits Award

[34] On January 1, 2022, the Arbitrator delivered his award on the merits. He found that Marta was entitled to 50% of the Burwell Shares and 50% of the Rollover Consideration. In reaching this conclusion, he held that Greg’s October 18 email constituted a valid declaration of an express trust.

[35] The Arbitrator stated that the creation of an express trust requires three certainties: certainty of object, certainty of intention, and certainty of subject matter.

[36] With respect to the first certainty – the object of the trust – the Arbitrator held that Marta Wozniak was the object of the October 18 email.

[37] With respect to the second certainty – intention – the Arbitrator held that an objective consideration of the totality of the circumstances led to the conclusion that Greg’s intention in the October 18 email was to create a trust that would provide Marta with 50% of all Fusebill shares. At paragraph 46 of the Decision, the Arbitrator stated that when Greg wrote the October 18 email, he was in the process of establishing “a family trust which will hold all Fusebill shares” (quote from the October 18 email, found at paragraph 46 of the Decision). Therefore, the Arbitrator found that the October 18 email created certainty of intention to create a family trust that would hold all Fusebill shares, and that Marta would unconditionally be entitled to 50% of those shares. Finally, the Arbitrator found that Greg intended to formalize this intention with a trust document.

[38] With respect to the third certainty – the subject matter of the trust – the Arbitrator stated that for a trust to be valid, the property or assets which it is to contain must be identifiable. The Arbitrator found that as a result of a corporate reorganization in March of 2013, some uncertainty with respect to the subject matter of the trust was created. That is, the 4.5 million Trust Shares became 450,000 shares and Greg’s Personal Shares became 1,737,203 shares (paragraph 51 of the Decision). However, he stated that any uncertainty created by this situation was cured by continuing to consider “the contextual framework and the surrounding circumstances as informed by the Supreme Court in Sattva” (paragraph 52 of the Decision). The Arbitrator decided that the certainty of the subject matter of the trust was clarified by the October 18 email, which the Arbitrator paraphrased in this way: “Greg intended for Marta to have 50% of the Fusebill shares that he owned regardless of what happens” (paragraph 52 of the Decision).

[39] The Arbitrator concluded that the October 18 email had created a trust. He stated at paragraph 53 of the Decision:

In light of the factual matrix and conceptual framework pertaining to Greg and Marta’s relationship in October 2011, I find that Greg’s email of October 18, 2011 had certainty of object, certainty of intention and certainty of subject matter. Thus, it created an express trust in favour of Marta.

[40] The Arbitrator classified the trust as a “bare” or “simple” trust on the basis that “the subject matter of the trust, Fusebill shares, did not require any active duties other than to hold them” (paragraph 54 of the Decision).

[41] The Arbitrator found that the Burwell Family Trust Agreement, with some modifications, formalized Greg’s promises and intentions. The Arbitrator stated that Greg had initiated the process of formulating the Burwell Family Trust with his lawyer prior to their separation of October 17, 2011. He held that although Marta had some input into the content of the final trust agreement that was signed in December 2011, it was Greg who completed the process of creating the Burwell Family Trust, to formalize the promise he made in his October 18 email.

[42] The Arbitrator held that the Rollover Consideration (the equity in the Parent Company) constituted part of the purchase price. He based this conclusion on the Recitals in the SPCA which stipulated that the “Purchase Price” for Fusebill was the aggregate consideration payable to Greg and Tyler by the Parent Company in both cash and equity.

[43] Consequently, the Arbitrator found that Marta was legally entitled to 50% of the Rollover Consideration paid to 844, as well as the cash consideration paid for the shares.

The Arbitrator's Conclusion and Disposition

[44] The Arbitrator found that Greg created an express trust in favour of Marta, and as such her claim was allowed. Consequently, he found that Marta was legally entitled to 50% of all amounts paid to 844 by the Purchaser for the Burwell shares. This included the Rollover Consideration (the equity in the Parent Company), which he found constituted part of the consideration. The Arbitrator held that the Rollover shares were a unique element of the consideration, which was part of the share purchase price. Marta's entitlement was therefore 600,000 of the 1,200,000 units paid, or $600,000.00 USD of $1,200,000.00 USD.

[45] The Arbitrator also concluded that Marta was legally entitled to 50% of the Holdback funds that were to be paid to 844 in the future. These funds represented unpaid amounts from the Purchaser owing to 844 for the Fusebill shares in which Marta had a 50% interest.

[46] Finally, the Arbitrator found that Marta was legally entitled to 100% of the funds that were held in escrow by LaBarge Weinstein LLP. He ordered that LaBarge Weinstein LLP release all of such funds, which was expected to total $380,879.88 USD, plus accrued interest, to Marta or her lawyers, as directed.

Issues

[47] The issues raised in the present case are as follows:

1. Should Greg be granted leave to appeal questions of law in the award?
2. What are the applicable standards of review?
3. Should the Arbitrator's Decision with respect to his jurisdiction in this matter be set aside?
4. Should the Arbitrator's Decision with respect to the Limitations Act, 2002, be set aside?
5. Should the Arbitrator's Decision with respect to the trust issue be set aside?

Leave

[48] Parties to an arbitration agreement are free to specify whether and to what extent they may appeal an award. If the agreement is silent, the default under the Arbitration Act, 1991, S.O. 1991, c. 17 is a right to appeal on questions of law only, with leave.

[49] Section 45(1) of the Arbitration Act provides the criteria to consider in granting leave on questions of law:

(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and

(b) determination of the question of law at issue will significantly affect the rights of the parties

[50] In this case, the agreement permitted the parties to appeal as of right on issues of fact and mixed fact and law, but leave was required for questions of law.

[51] Greg argues that it is inconsistent to allow appeals as of right on questions of mixed fact and law, but to require leave to appeal a question of law. Therefore, he argues that the leave requirement should be ruled ineffective.

[52] If, however, leave is required, Greg argues that the test for leave to appeal questions of law is met for the following reasons:

The total amount awarded to Marta was CAN $1,502,856.23.64 This is an objectively significant sum for almost any individual. It also represents a very significant portion of what Greg earned from selling the company that he spent more than 10 years growing from the ground up.

On the second criterion, should the court agree with Greg that the Arbitrator made any of the alleged legal errors, there will be a significant impact on the parties' legal rights.

[53] Marta does not dispute that Greg has satisfied the first criterion from section 45 of the Arbitration Act because the matters at stake are sufficiently important to the parties to justify an appeal. However, Marta does not agree that the second criterion is met, because she states, the alleged errors of law, if proven, will not significantly affect the parties’ rights in the arbitration and will not “decisively alter the outcome”.

[54] I find that the present case does in fact involve a question of law and therefore, leave to appeal the Arbitrator’s decision is required. As will be further explained below, the Arbitrator allowed the October 18 email to overwhelm the words of the Burwell Family Trust agreement and in so doing, effectively created a new agreement. According to Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633 at paras. 57 and 64, this constitutes an error of law. Furthermore, the Arbitrator failed to take the Burwell Family Trust Agreement into account in applying the legal requirements for the creation of a trust.

[55] I find that the test for leave has been met. In view of the relatively large monetary amount in dispute as well as the impact of the challenge to the Arbitrator’s decision on the parties’ interests in this case, I find that leave to appeal is warranted (Sattva, at para. 41).

Standard of Review

[56] Greg appeals the Arbitrator's award pursuant to s. 45 of the Arbitration Act. He also seeks a review of the Arbitrator's jurisdictional decision pursuant to s. 46(1)3 of the Arbitration Act.

[57] Section 45 of the Arbitration Act provides a right to appeal an arbitration award on questions of mixed fact and law or fact alone, and with leave of the court on questions of law.

[58] Greg argues that since the Supreme Court of Canada's decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2014] 4 S.C.R. 653, the Ontario Court of Appeal and the Ontario Superior Court have held that the appellate standards of review apply to appeals of arbitral awards. For example, at paragraph 14 of Travelers Insurance Company of Canada v. CAA Insurance Company, 2020 ONCA 382, 151 O.R. (3d) 78, the Ontario Court of Appeal stated:

Because this is a statutory appeal that raises questions of law, including questions of statutory interpretation, the standard of correctness applies: Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] S.C.J. No. 65, 2019 SCC 65, at paras. 37, 53. (emphasis added)

[59] However, in Travellers Insurance Company, the Court of Appeal did not engage in a detailed analysis of the law on the standard of review, post-Vavilov because it was not, strictly speaking, necessary for the Court’s determination. The Court found that the arbitrator made several serious legal errors that were considered constitutional, jurisdictional and exceptional, in respect of which deference was not due. The Court noted that the standard of correctness has always applied to such questions of law.

[60] Marta submits that the standard of review on all questions of law continues to be reasonableness. She relies on Sattva and Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688 for the proposition that the standard of review for arbitrators’ decisions is still reasonableness, notwithstanding the Supreme Court’s statements in Vavilov. She states that the Supreme Court of Canada in the 2021 decision in Wastech Services Ltd. v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, 454 D.L.R. (4th) 1 explicitly declined to extend the appellate standards of review to appeals of commercial arbitration awards and noted that the Court in Vavilov intentionally did not mention either Sattva or Teal Cedar Products in its decision.

[61] Furthermore, writing for the majority in Wastech, Kasirer J. stated that his lack of comment on the appropriate standard of review for commercial arbitration decisions should not be interpreted to mean that he agreed with the view of the minority. The minority's view was that the standard of appellate review, articulated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 applied to commercial arbitration decisions.

[62] Marta submits that since the Court of Appeal refused to comment on the standard of review with respect to commercial arbitrations in Ontario First Nations (2008) Limited Partnership v Ontario Lottery and Gaming Corporation, 2021 ONCA 592, this court should also refuse to do so. In another recent Ontario Court of Appeal decision in Tall Ships Development Inc. v. Brockville (City), 2022 ONCA 861, the Court of Appeal once again declined to comment on the standard of review for commercial arbitrations, but implicitly affirmed the approach set out in Sattva and Teal Cedar Products.

[63] I find it unnecessary to address the thorny issue of whether Vavilov has changed the standard of review analysis. Therefore, I am following the Ontario Court of Appeal's instructions in Ontario First Nations, at paragraph 38, wherein the court stated that courts should generally refrain from deciding issues of law that are unnecessary to the resolution of an appeal (Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, at para. 6).

[64] With respect to the first issue of the Arbitrator’s jurisdiction, I find that even on the most stringent standard of review for jurisdictional issues – correctness – the Arbitrator’s conclusion that he had jurisdiction to consider whether Marta could claim half of the Rollover Consideration is unimpeachable.

[65] On the issue of whether Marta’s claim fell outside of the two-year discoverability rule under the Limitations Act, 2002, I find that this issue involves a question of mixed fact and law. Therefore, either the appellate standard of review applies, which is palpable and overriding error, or the standard of reasonableness applies. The two standards of review are in fact, quite similar.

[66] As the Supreme Court stated in H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at paras. 55-56, the term “palpable error” captures the same meaning as “clearly wrong”, “ unreasonable ” or “unsupported by the evidence” (emphasis added). Therefore, the question before me is whether the Arbitrator’s conclusions with respect to the Limitations Act is unreasonable.

[67] With respect to the final question regarding the creation of a trust, I find that this is a question of law. I am cognizant of the Supreme Court’s caution in Sattva that courts should be very hesitant to find errors of law in the context of contractual interpretations by arbitrators. The Court has signaled that deference is owed to arbitrators in the commercial context to avoid repeated recourse to the courts, which the arbitration system is designed to avoid. In the words of the Supreme Court:

As mentioned above, the goal of contractual interpretation, to ascertain the objective intentions of the parties, is inherently fact specific. The close relationship between the selection and application of principles of contractual interpretation and the construction ultimately given to the instrument means that the circumstances in which a question of law can be extricated from the interpretation process will be rare. In the absence of a legal error of the type described above, no appeal lies under the Arbitration Act from an arbitrator’s interpretation of a contract. (Sattva, at paragraph 55) (emphasis added)

[68] Nonetheless, the Supreme Court stated at paragraph 53 of Sattva, that it may be possible to identify an extricable question of law from what was initially characterized as a question of mixed fact and law. Examples of legal errors made in the course of contractual interpretation include:

…the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor (King, at para. 21).

[69] In Canada (Director of Investigation and Research) v Southam Inc, [1997] 1 S.C.R. 748, at para. 39, the Supreme Court illustrated how an error on a question of mixed fact and law can amount to a pure error of law subject to the correctness standard:

. . . if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.

[70] In Evans v Teamsters Local Union No 31, 2008 SCC 20 at paragraph 47, the Supreme Court of Canada stated that the failure to consider relevant evidence is an error of law.

[71] It is also an error of law to permit the factual matrix to overwhelm the words of a contract: Sattva, at para 57; Kilitzoglou v. Curé, 2018 ONCA 891, at para 41.

[72] In the present case, it is my respectful view that the Arbitrator incorrectly ignored the written Burwell Family Trust agreement and used the evidence of the surrounding circumstances, including the October 18 email, to overwhelm the words of the agreement. These errors constitute errors of law.

[73] If the appellate standard of review applies to errors of law, the trust issue would be reviewed on a standard of correctness: Housen v. Nikolaisen, at para. 8. However, if the standard of review for arbitral decisions has been changed as a result of Vavilov, then the standard of review is reasonableness, unless the question is constitutional or of central importance to the legal system as a whole and outside the adjudicator’s expertise (Sattva, at para 106).

[74] As will be explained in greater detail below, I find that regardless of which standard applies – correctness or reasonableness – the Arbitrator’s Decision with regard to the trust issue cannot stand. With the greatest of respect to the Arbitrator, who did a masterful job of parsing out the facts in the present case, I find that the Decision on the trust issue to be both incorrect in law, and unreasonable. Therefore, I am varying the Arbitrator’s decision.

The Arbitrator’s Jurisdiction

[75] Greg argues that the Arbitrator exceeded his jurisdiction when he ruled that Marta was entitled to half the Rollover Consideration. According to Greg, Clause 6 of the Interim Agreement set the scope of the Arbitrator’s authority as limited to whether “... 844 holds 50% of the Burwell Shares in trust for [Marta] (the “Claim”)”.

[76] Greg therefore argues that the arbitration’s scope was limited to Marta’s Claim, defined as 50% of the Burwell Shares, or 50% of all amounts paid for or in respect of the Burwell Shares (further defined as the “Escrowed Funds”). Greg states that the claim for the Rollover Consideration fell outside that scope because the Rollover Consideration was not paid for, or in respect of, the Burwell Shares. Rather, it was paid in consideration for the Rollover Notes. The “Rollover Notes” were issued by Fusebill to Greg and Tyler’s personal corporations.

[77] The Parent then issued the Rollover Consideration, 2.4 million Parent Units, to Greg and Tyler’s in consideration for the Rollover Notes. Greg argues that the Arbitrator erroneously conflated the additional consideration paid to Greg’s corporation, 844, under the SPCA with the price paid for the Burwell Shares. The Interim Agreement recorded that “the parties have agreed that 50% of all amounts to be paid to 844 with respect to the Burwell Shares under the [SPCA] (the “Escrowed Funds”) will be placed in a separate escrow account ... (the “Escrow Account”)”. The Arbitrator erred by failing to distinguish between amounts paid with respect to the Shares and amounts paid with respect to the Rollover Notes.

[78] Greg’s arguments conflate the issue of whether the Arbitrator made a correct decision with whether the Arbitrator correctly determined that he had jurisdiction to make a decision with respect to the Rollover Consideration.

[79] Citing the Ontario Court of Appeal’s decision in Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254, 145 O.R. (3d) 481 at paras 25-27, the Ontario Superior Court of Justice recently stated that subsection 46(1)3 of the Arbitration Act, which deals with the scope of an arbitration, does not authorize the court to review the substance of an arbitrator’s award. The jurisdictional issue is not determined by asking whether the arbitrator made a correct decision, but by asking whether the arbitrator had the authority to make the inquiry they made (The Tire Pit Inc. v. Augend 6285 Yonge Village Properties Ltd., 2022 ONSC 6763, at para. 25).

[80] Therefore, the issue is not whether the Arbitrator correctly determined that Marta was entitled to 50% of the Rollover Consideration, but whether the Arbitrator had the jurisdiction to consider this issue. Arbitrators are not permitted to expand an arbitration to add matters falling outside the parties’ agreement: TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144 at paragraph 69.

[81] In my view, the Arbitrator correctly determined the scope of his jurisdiction by carefully examining the Interim Agreement, the Escrow Agreement and the Irrevocable Payment Direction. The Interim Agreement stated that Marta claimed that Greg’s holding company, 844, held 50% of the Burwell Shares (the Trust Shares and Greg's Personal Shares) in trust for her and that the parties had agreed that 50% of all amounts to be paid to 844 with respect to the Burwell Shares under the SPCA would be placed in a separate escrow account.

[82] The Escrow Agreement states that the funds in escrow shall include, among other items, 50% of “ any amounts payable in respect of the shares held by 844 as and when paid pursuant to the purchase agreement” (paragraph C of the Escrow Agreement).

[83] The Irrevocable Payment Direction directs “the amount of $380,879.88 representing 50% of all amounts to be paid in respect of the shares held by 844 less any escrow or holdback” to be placed in escrow. Marta claimed that $380,879.88 was less than 50% of “all amounts to be paid in respect of the shares”.

[84] Greg argues that the Rollover Consideration, paid to his holding company, 844, was not “an amount to be paid in respect of the shares”, but rather it was consideration paid for in respect of the Rollover Notes. The Rollover Notes were issued by Fusebill to Greg and Tyler’s personal corporations. The Rollover Consideration was not in fact an amount of money. Instead, it was equity in the Parent Corporation that has a notional value of $2.4 million. Therefore, according to Greg, the Arbitrator did not have jurisdiction to deal with this part of the transaction because the parties had agreed only to include “amounts paid in respect of the Burwell Shares” in the scope of the arbitration.

[85] I agree with Marta that Greg’s argument incorrectly assumes that Marta’s claim is limited to the purchase price paid for the shares. Instead, Marta’s claim is for 50% of all amounts paid to 844 with respect to the Personal Shares under the Purchase Agreement, which includes the purchase price paid for those shares, dividends paid on those shares and all other amounts paid in with respect to those shares. The Rollover Notes were issued to 844 as a dividend on the Personal Shares. As a result, the Rollover Consideration paid to 844 in consideration for the Rollover Notes constitutes “amounts paid to 844” with respect to the Personal Shares under the Purchase Agreement and the Arbitrator correctly found that he had jurisdiction to include the Rollover Consideration in the scope of the matter before him. It follows that if the Arbitrator’s conclusion with respect to the scope of the arbitration was correct, it was also reasonable.

The Limitations Act, 2002

[86] Section 4 of the Limitations Act, 2002 requires that all claims be started within two years from the date on which the claim was discovered. The Arbitrator determined that Marta’s cause of action arose in early 2021, when Greg communicated that he was denying her entitlement to Greg’s Personal Shares.

[87] Greg argues that the Arbitrator made an error in law by failing to apply the correct test for discoverability pursuant to s. 5 of the Limitations Act, 2002. I disagree. I think the Arbitrator applied the correct test.

[88] Section 5(1)(a) of the Limitations Act, 2002 required the Arbitrator to determine when Marta knew four things: (i) that the loss occurred, (ii) that the loss was caused by an act or omission, (iii) that the act or omission was Greg’s, and (iv) that, having regard to the nature of the loss, a proceeding would be an appropriate means to remedy it. Section 5(1)(b) then requires the Arbitrator to determine when a “reasonable person” first ought to have known these four elements. Marta’s claim was discovered on the earlier of these two dates. The claimant must act with due diligence to pursue a claim: s. 5(2) of the Limitations Act, 2002.

[89] Greg asserts that the Arbitrator erred in failing to determine when a reasonable person with Marta’s abilities and in her circumstances ought to have known Greg would not honour his alleged obligation as trustee, as required by s. 5(1)(b). Greg states that there were a number of earlier events that would have alerted a reasonable person to the possibility that Greg was not honouring his obligation, including the following:

1. Marta signed the Burwell Family Trust Agreement in December 2011. The Trust Agreement is fundamentally inconsistent with Marta’s Claim that she has a 50% interest in the Burwell Shares since it does not include Greg’s Personal Shares and provides for multiple beneficiaries; and,
2. Following their separation in 2014, Greg (through his lawyer) stated that his Personal Shares were “owned by a numbered company of which he is the sole shareholder and director”. Greg’s assertion of ownership, separate from the Family Trust should have alerted to Marta that her view of the situation and Greg’s view were different.

[90] In my view, the Arbitrator set out the correct test to be followed and then applied the test to the particular facts of this case. The Arbitrator cited Clarke v. Sun Life Assurance Company of Canada, 2020 ONCA 11, 149 O.R. (3d) 433 regarding the appropriate approach to the discoverability rule. In that case, the Court of Appeal overturned the trial judge’s finding on the limitation defence because she failed to make the required findings of fact to ground her decision. The Court specifically admonished the trial judge for failing to conduct the analysis from the perspective of a reasonable person (Clarke, para. 16). However, the Court refused to exercise its fact-finding powers under section 134(4) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to determine whether the two-year limitation applied, finding that a better record was needed to make a decision on the matter. The Court ordered that it proceed to trial where the limitations issue would be determined.

[91] A determination under section 5 of the Limitations Act, 2002 is a heavily fact-driven exercise. The Arbitrator had the benefit of hearing all the parties’ evidence and is entitled to a fair degree of deference on this largely fact-driven exercise. While I might have been inclined to find that Marta should have realized that she might have a claim when she signed the Burwell Family Trust Agreement since it conflicted with the promise made by Greg in the October 18 email, a deferential stance towards the Arbitrator’s conclusion compels me to refrain from intervening on this issue.

[92] Furthermore, while the Arbitrator did not specifically mention the objective component of the test (that is, whether a reasonable person in Marta's shoes would have discovered the claim at an earlier point in time), I find that this does not render his decision unreasonable or tainted by a palpable or overriding error. As stated by the Supreme Court of Canada in Housen, “the 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).

The Arbitrator’s Decision About the Trust(s)

[93] In his decision on the merits, the Arbitrator’s first question was whether Greg’s October 18, 2011 email should be categorized as a gift by declaration of trust, thus creating an express trust, or whether the promises made therein were intended simply to “appease” Marta and “diffuse the situation”, because “that’s what she wanted to hear” (paragraph 41 of the Decision). In so doing, the Arbitrator made it clear that the focus of his analysis was the October 18 email. Unfortunately, as we shall see, this led him to disregard the Burwell Family Trust Agreement.

[94] Although the Arbitrator set out the appropriate law regarding the creation of express trusts, he then proceeded to apply that law only to the October 18 email. Citing two leading Ontario Court of Appeal cases on the law of trusts, Angus v. Port Hope (Municipality) 2017 ONCA 566, and Rubner v. Bistricer 2019 ONCA 733, the Arbitrator set out the criteria and his findings with regard to an express trust in the following terms at paragraphs 43-50 of the arbitral award:

[43] Certainty of object requires an absence of any ambiguity as to who is the beneficiary of the trust: Rubner, Ibid and Hussaini v. Crowe Soberman Inc. 2019 ONSC 642. Clearly Marta Wozniak is the object of the email. (paragraph 43 of the Award

[44] The question regarding Certainty of intention is one of fact. The analysis requires consideration of the totality of the circumstances. A formal transfer of property or technical language is not necessary to constitute a trust. (paragraph 44 of the Award)

[46] Within the earlier mentioned contextual framework of the October 18, 2011 email, among other items, Greg told Marta that, he had commenced the process "(this one is in progress)" of establishing a "family trust which will hold all Fusebill shares", and that"[She was] entitled to 50% of the holdings if [He was] alive". Furthermore, he intended to legalize or otherwise formalize his intention "once we sign this document". He clearly stated that there were no conditions attached to his intention, "yours regardless of what happens", Finally, Greg let Marta know that he was doing this because "[She had] been by my side for this and until today I didn't realize how much of a rock you were for me, so I consider you to be my cofounder. So you have earned it." (paragraph 46)

[49] Certainty of subject matter requires that in order for a trust to be valid the property or assets which it is to contain must be identifiable, Port Hope, ibid and Rubner, ibid. 50. (paragraph 49 of Award)

[50] In the often referred to email, Greg makes it clear that Marta is to have a 50% beneficial interest in all Fusebill shares held by the trust. He went on the state that Marta would be entitled to "50% of the holdings if I am alive, if not you are entitled to 100%, once we sign this document 50% of the 4.5 million shares". That makes the subject matter identifiable. (paragraph 50 of the Award; emphasis added throughout)

[95] The Arbitrator held that although the certainty of the subject matter of the trust was perhaps less clear because of the corporate reorganization in March 2013 that diluted the share value, the October 18 email resolved any lack of certainty. The Arbitrator paraphrased the October 18 email, saying: “Greg intended for Marta to have 50% of the Fusebill shares that he owned, ‘yours regardless of what happens;”" (paragraph 52) Therefore, he held that there was certainty of subject matter – all of Greg’s Personal Shares.

[96] At paragraph 49 of the Decision, the Arbitrator made a crucial finding that makes it clear he considered the Burwell Family Trust and the express trust created on the basis of the October 18 email to be one and the same. He stated:

I do not accept Greg’s proposition that the email was part of the negotiations between he and Marta in the development of the Burwell Family Trust. While the evidence is that Marta had some input into the content of the trust agreement, clearly this was something that Greg had initiated with his lawyer prior to their separation of October 17, 2011 and set out his intention as part of the email of October 18, 2011. The trust agreement, with some modifications, formalized Greg’s promises and intentions. (emphasis added)

[97] In my view, it is implicit in the Arbitrator’s statement above that he found the October 18 email and the Burwell Family Trust to constitute one trust.

[98] However, in her factum, Marta argues that the Trust created by the October 18 email (which the Arbitrator said was settled by Greg over the Personal Shares totaling 2,187,203 shares of Fusebill) was separate and distinct from the Family Trust (which was created by the Family Trust Agreement and settled by Greg’s business partner over 450,000 shares of Fusebill). Marta asserts in her factum that the Trust and the Burwell Family Trust can and do co-exist.

[99] I reject this argument on the basis of the Arbitrator’s own reasons. At paragraph 48 he stated that the “trust agreement, with some modifications, formalized Greg’s promises and intentions” in the October 18 email. According to the Merriam Webster dictionary “formalize” means: to give a certain or definite form to; to make formal; to give formal status or approval to. Therefore, the Burwell Family Trust Agreement, according to the Arbitrator, was created to give a definite form to Greg’s intentions in the October 18 email. The Arbitrator did not state that the Burwell Family Trust was a separate trust from the bare trust created by the October 18 email. Given that the Arbitrator has not stated that there are two separate trusts, he could not ignore the inconsistencies between the October 18 email and the Burwell Family Trust document. They are part of the same factual matrix and must be interpreted accordingly.

[100] Marta seems to recognize that there is one trust, comprised of a promise and then the fulfillment of that promise through the creation of the trust, because at paragraph 45 of her factum, she states:

Here, the Arbitrator found that Greg’s actions in bringing about the creation of the Family Trust constituted delivery on his promise in the Email to give Marta 50% of Greg’s Shares and completed the “gift by declaration of trust”.

[101] Indeed, Marta acknowledges that Greg’s promise in the October 18 email would not have been legally enforceable without the delivery of the subject matter of the promise. The law is clear that regardless of intention, a promise to give a future gift does not create an effective gift at law. An effective gift requires delivery of the subject matter of the trust: Rubner v. Bistricer, at para. 46; Teixeira v. Markgraf Estate, 2017 ONCA 819, 137 O.R. (3d) 641 at paras. 38, 40-44.

[102] It is unclear whether the Arbitrator considered the signing of the Burwell Family Trust Agreement to constitute the conveyance of the subject matter of the “trust” created by the October 18 email. His statement that the Burwell Family Trust, with some modifications, formalized Greg’s promise seems to suggest that. However, what was delivered or conveyed to the Burwell Family Trust Agreement was not the subject matter that the Arbitrator identified in paragraph 52 of his Decision – 50% of Greg’s Personal Shares. Rather, the subject matter of the Burwell Family Trust Agreement consisted of 4.5 million Trust Shares, which were obtained through a subscription made on behalf of the Burwell Family Trust; they were not Greg’s Personal Shares. Thus, there is a conflict between the Arbitrator’s interpretation of the subject matter that was promised in the October 18 email and the subject matter of the Burwell Family Trust. That conflict renders uncertain the subject matter of the trust, which the Arbitrator found was created by the October 18 email.

[103] Moreover, the Arbitrator ignored the internal inconsistencies within the October 18 email. Those internal inconsistencies cast further doubt on the three certainties required to find an express trust. For example, in the October 18 email, Greg states that the family trust will hold “all Fusebill shares”. Yet, in the same sentence he states: “once, we sign this document 50% of the 4.5 million shares of Fusebill are yours”. It is unclear from this sentence whether Greg meant that the subject matter of the Burwell Family Trust would be the 4.5 million Personal Shares he was granted upon the incorporation of Fusebill, or the 4.5 million Trust Shares to which the Burwell Family Trust subscribed. In addition, Greg would seem to have contradicted himself in the October 18 email when he stated that Marta was entitled to 50% of the 4.5 million shares “no matter what happens” and then in the same sentence he said she would be entitled to 100% of the shares if he dies. These inconsistencies effectively undermine the certainty of the subject matter of the trust created by the October 18 email.

[104] There are other material inconsistencies between the October 18 email and the written terms of the Burwell Family Trust Agreement that the Arbitrator did not consider. For example, the Trust Agreement appoints Greg and Marta as co-trustees, whereas the email contemplates Greg as the sole trustee. Contrary to the email, the Trust Agreement identifies a number of additional beneficiaries, including Greg, Greg and Marta’s future children, and other family members, and leaves their interest (if any) at the co-trustees’ discretion. The Arbitrator did not resolve the inconsistencies between what he called a “bare” or “simple” trust created by the October 18 email, and the discretionary trust that was established through the Burwell Family Trust Agreement. These inconsistencies undermine the trust created by the Arbitrator on the basis of the October 18 email with respect to all three aspects of the test for the creation of a trust – intention, object and subject matter of the trust.

[105] While the Arbitrator's failure to consider the inconsistencies I have outlined above may be considered errors of mixed fact and law and as such, subject to a more deferential standard of review, it is the Arbitrator's focus on the October 18 email and his inattention to the Burwell Family Trust that give rise to the more problematic errors of law.

[106] The Arbitrator's focus on the October 18 email led him down the wrong legal path. In fact, the October 18 email is more properly viewed as part of the factual matrix surrounding the creation of the Burwell Family Trust. The law is clear that when there is a written agreement, as in the present case, the factual matrix may be used to clarify the parties’ intentions as expressed in the written agreement, but it cannot be used to contradict the intention expressed in the written agreement, create an ambiguity which otherwise does not exist in the written document, or have the effect of making a new agreement. Ultimately, the words of the agreement are paramount: The Canada Trust Company v. Browne, 2012 ONCA 862 at para. 71.

[107] It is an error of law to permit the surrounding circumstances to overwhelm the words of an agreement: Kilitzoglue v. Curé, 2018 ONCA 891, at para 41. As the Supreme Court stated at paragraph 57 of Sattva:

While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 101 B.C.A.C. 62).

[108] I find that the Arbitrator’s emphasis on the October 18 email, which was part of the surrounding circumstances of the Burwell Family Trust Agreement, led him to create a new agreement, based on the email. This was not only inconsistent with his conclusion that the Burwell Family Trust constituted the formalization of the promise made in the October 18 email, it was also an impermissible use of the surrounding circumstances (as stated in Sattva) to interpret the Burwell Family Trust. The express provisions of the Burwell Family Trust Agreement could not be varied, contradicted or overwhelmed by Greg’s October 18 email. In so doing, the Arbitrator made a decision that was both incorrect in law and unreasonable.

[109] Therefore, I am varying the Arbitrator’s decision, pursuant to s. 45(5) of the Arbitration Act. I am replacing the Arbitrator’s decision regarding the trust with the following: there is only one trust in this case, which is the Burwell Family Trust. Pursuant to the Burwell Family Trust Agreement, Marta has a beneficial interest in the Trust Shares, along with other beneficiaries. Being a discretionary trust, the proportion of that beneficial interest is to be determined by the Trustees, Marta and Greg. The October 18 email did not create an express trust granting Marta a 50% beneficial interest in Greg’s Personal Shares.

[110] Before the Arbitrator, Marta argued that the equitable doctrine of proprietary estoppel applied to the promise Greg made in the October 18 email. However, the Arbitrator held that it was unnecessary to determine that issue, given his conclusion that the October 18 email created an express trust in favour of Marta. Before this court, Marta argued that if the Arbitrator’s decision with respect to the trust is set aside or varied by this court, the Arbitrator should be given an opportunity to make a determination regarding the issue of proprietary estoppel. I agree. That issue was not presented to this court. As a result, it is an outstanding issue that remains to be determined by the Arbitrator. For that reason, I remit the matter to the Arbitrator for a decision on the issue of proprietary estoppel. The Arbitrator should also provide a final disposition, taking into account the court’s conclusion with respect to the Burwell Family Trust Agreement and the October 18 email.

[111] The Arbitrator is to render his decision on the issue of proprietary estoppel and the final disposition in this matter within two months of the date of the present decision. If the Arbitrator is unable to do so within two months, the parties may return to this court for directions.

Costs

[112] Success on the appeal was divided, but Greg has enjoyed the greater measure of success. Therefore, he is presumptively entitled to an award of costs. If the parties are not able to agree on costs, they may make submissions to me on that issue, within thirty days of the date of this award. The submissions are not to exceed five pages, not including the costs outline.

Justice K.A. Jensen Released: March 13, 2023

COURT FILE NO.: CV-22-88458 DATE: 2023/03/14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Greg Burwell, The Burwell Family Trust, and 8442568 Canada Inc., Plaintiffs

• and - Marta Wozniak, Defendant

REASONS FOR DECISION

Justice K. Jensen Released: March 13, 2023

APPENDIX

March 13, 2023: In the title of proceedings on page 1, the spelling of the name Myriam Vale Peters was corrected to read Miriam Vale Peters.

March 13, 2023: In the title of proceedings on page 1 and on the back page, The Burwell Family Trust, and 8442568 Canada Inc. were added as Plaintiffs.