Court File and Parties

COURT FILE NO.: CV-22-89302 DATE: 2023/12/13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Norman Harry John Clost Applicant

– and –

Laureen Rennie and June Drysdale Respondents

Counsel: Kelli Day, C. Katie Black, and Desneiges Mitchell for the Applicant Carmen M. Baru for the Respondents

HEARD: March 1, 2, April 17, 19, and June 12, 2023

REASONS FOR JUDGMENT

RYAN BELL J.

Overview

[1] This application challenges an arbitrator’s ruling on jurisdiction. The respondents, Laureen Rennie and June Drysdale, allege that their uncle, the applicant Norman Harry John Clost,[^1] signed a lease agreement in 2005. Norm maintains that he did not agree to or sign the alleged lease in 2005 or at all. He claims fraud in its execution.

[2] The alleged lease contains an arbitration clause. In 2020, following a failed real estate transaction, Laureen and June gave notice that they intended to arbitrate a dispute related to the alleged lease. Norm objected. He challenged the validity of the alleged arbitration agreement and the arbitrator’s jurisdiction on the basis that the signature on the alleged lease was a forgery. The parties executed an Agreement and Submission to Arbitration and Appointment of Arbitrator and appointed Richard J. Weiler as “Arbitrator of the Jurisdiction Motion.”

[3] The Arbitrator issued his Ruling on Jurisdiction on April 21, 2022. He found the arbitration clause in the alleged lease “is valid and that there is jurisdiction to conduct an arbitration in this matter.”

[4] Norm applies for a declaration that the alleged lease is invalid and/or void based on fraud, and an order setting aside the Arbitrator’s Ruling. Norm applies under s. 17(8) of the Arbitration Act, 1991,[^2] which provides that where an arbitral tribunal rules on an objection as a preliminary question, a party may apply to the court “to decide the matter”; in other words, s. 17(8) gives rise to a hearing de novo. Norm submits that on the record before the Arbitrator, which the parties have placed before this court, I should find that Laureen and June have failed to meet their evidentiary burden of proving, on the balance of probabilities, that Norm signed the alleged lease.

[5] Laureen and June maintain that s. 17(8) of the Act does not apply. They say the Arbitrator conducted a “stand-alone” arbitration in which the Ruling on Jurisdiction is the award and although the Ruling may be appealed or reviewed (under s. 45 or s. 46 of the Act, respectively), the matter cannot be reheard de novo. They also say that if the hearing before this court is a hearing de novo, then on the evidence, the alleged lease is valid.

[6] In the alternative to his primary position, and in the event Laureen and June succeed on their argument that s. 17(8) of the Act does not apply, Norm seeks leave to appeal the Arbitrator’s Ruling on Jurisdiction. Norm alleges that the Arbitrator erred in law, including by failing to give sufficient reasons “that articulate and reconcile the interplay between the law of credibility and burden of proof.”

[7] The issues I must determine are:

(i) Does s. 17(8) of the Act apply; is this a hearing de novo?

(ii) If so, is the alleged lease valid?

(iii) If s. 17(8) of the Act does not apply, did the Arbitrator err in law?

(iv) Alternatively, should the Arbitrator’s ruling be set aside under s. 46 of the Act?

(v) Should the issue of costs of the jurisdiction motion be remitted to the Arbitrator for determination?

[8] For the following reasons, I conclude that s. 17(8) of the Act applies and this is a hearing de novo. On the totality of the evidence, I am not satisfied that the alleged lease is valid. Accordingly, there is no jurisdiction to conduct an arbitration under the clause contained in the alleged lease. The application is granted, with costs to Norm.

Factual background

[9] Laureen and June are sisters. Their deceased father, Dalton, was one of Norm’s fourteen siblings. When Norm’s father passed away in 1985, Norm and his seven brothers each inherited a one-eighth interest in a cottage property located at 99-100 Clost Lane in Griffith, Ontario.

[10] On August 19, 2005, Norm entered into a series of transactions with his siblings or their estates whereby he acquired a seven-eighths interest in the cottage property. By this time, Dalton had passed away, so Dalton’s three daughters, Laureen, June, and Beverley Dickinson, approved the sale of Dalton’s one-eighth interest to Norm. Norm’s brother Gordon Clost retained his one-eighth interest. As a result of these transactions, Norm and Gordon owned the underlying land at the cottage property. The various cabins and the trailer on the land remained the property of their other family members.

[11] Laureen and June claim that the alleged lease was signed by Norm on August 19, 2005, before the execution of the transfer and assignment agreement and the power of attorney relating to Dalton’s cottage. Norm denies signing the alleged lease in 2005 or at any time.

[12] Norm says that on a Saturday in the summer of 2012, June’s husband, Gary Drysdale, approached him at the cottage and presented him with a lease agreement. Norm decided that he did not want to enter into the proposed lease agreement and he did not sign it; he says that he kept the unsigned document in his briefcase. Gary denies presenting Norm with a proposed lease agreement in 2012; Gary says that he prepared the lease agreement and was present when the document was executed in 2005.

[13] The alleged lease was not referred to again (at least not to Norm) until the summer of 2020.

[14] From 1991 until June 2020, Norm has been responsible for the management of the cottage property, including payment of property taxes, maintenance of the private road and septic system, scheduling of guests, and other general administrative and maintenance duties.

[15] In the spring of 2020, Norm decided he wanted to sell his interest in the cottage property. Eventually, Laureen and June’s children, Scott Drysdale (June’s son), Adam Lillico[^3] (Laureen’s son), and Amy Ste-Marie (Laureen’s daughter) made an offer to purchase the cottage property. Norm signed the agreement of purchase and sale on June 8, 2020; however, the lawyers for the prospective purchasers did not deliver the deposit to Norm’s real estate lawyer within 24 hours of acceptance as required by the terms of the agreement. On June 17, Norm’s real estate lawyer advised that the agreement of purchase and sale was terminated because the deposit was tendered late.

[16] On June 19, 2020, the lawyer for the prospective purchasers “reserve[d] all of their rights pursuant to the lease agreement with Norman Clost Jr., dated July 10, 2012, including the lessees’ first right of refusal to purchase the Property.” The same day, they registered a caution on title to the cottage property. Norm says that he was shocked by the revelations concerning the alleged lease because he never signed the alleged lease and he never granted the prospective purchasers a right of first refusal.

[17] Norm proceeded to sell the cottage property to his son, Norman John Paul Clost (“JP”) and Landlust Barrer on June 26, 2020. Relying on the alleged lease and the alleged right of first refusal, Scott, Mr. Lillico, and Amy then sued JP and Landlust, seeking specific performance. A certificate of pending litigation was obtained and registered on title.

[18] In support of the motion for the CPL, Scott swore an affidavit dated July 31, 2020 that attached what appeared to be a fully executed and witnessed copy of the alleged lease dated August 19, 2005.

[19] A second version of the alleged lease was delivered by Laureen on October 5, 2020 to Samiah Ibrahim, a forensic handwriting expert engaged by Norm to examine his purported signature. Norm also denies signing this version of the alleged lease.

[20] In her November 9, 2020 affidavit, June explained that the two versions of the alleged lease were different because “when the Lease was signed, we signed four original counterparts, one for each signatory.” In her November 20, 2020 affidavit, Laureen admitted to signing, altering, and backdating the alleged lease during the summer of 2020.

Procedural background

[21] On August 18, 2020, Laureen and June provided notice of their intention to commence an arbitration in relation to the sale of the cottage property. On September 9, 2020, Norm contested the jurisdiction of the proposed arbitration on the basis that he never agreed to or executed the alleged lease, which contained an arbitration clause. Norm pled the defence of fraud in the execution of the alleged lease. Norm’s counsel advised that he intended to bring a motion under s. 17 of the Act objecting to the arbitrator’s jurisdiction on the basis of “our client’s position that the signature on the alleged lease is a forgery, that your clients knowingly made a false document, that your clients are putting it forward in the context of the arbitration thereby intending that the document be considered genuine, and that they knew that our client would be prejudiced by treating the document as genuine.”

[22] By written agreement, the parties appointed Mr. Weiler the Arbitrator of “the issue of the existence and validity of the alleged arbitration agreement and the jurisdiction of the arbitrator.” The Arbitrator “accepted said appointment thereby taking up jurisdiction over those disputes exclusively.”[^4]

[23] The record before the Arbitrator was voluminous, and included the affidavits of numerous lay witnesses, the reports of four expert witnesses, and extensive cross-examinations. In the parties’ agreed statement of facts on this application, the parties confirmed their agreement to rely on the entire record that was before the Arbitrator without further cross-examination. This agreement was made without prejudice to Laureen and June’s primary position that s. 17(8) of the Act does not apply.

Issue 1: Does s. 17(8) of the Act apply?

[24] I conclude that s. 17(8) of the Act applies and this is a hearing de novo.

[25] Rulings and objections regarding jurisdiction are addressed in s. 17 of the Act. Section 17 states:

(1) An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement.

(2) If the arbitration agreement forms part of another agreement, it shall, for the purposes of a ruling on jurisdiction, be treated as an independent agreement that may survive even if the main agreement is found to be invalid.

(3) A party who has an objection to the arbitral tribunal’s jurisdiction to conduct the arbitration shall make the objection no later than the beginning of the hearing or, if there is no hearing, no later than the first occasion on which the party submits a statement to the tribunal.

(4) The fact that a party has appointed or participated in the appointment of an arbitrator does not prevent the party from making an objection to jurisdiction.

(5) A party who has an objection that the arbitral tribunal is exceeding its authority shall make the objection as soon as the matter alleged to be beyond the tribunal’s authority is raised during the arbitration.

(6) Despite section 4, if the arbitral tribunal considers the delay justified, a party may make an objection after the time limit referred to in subsection (3) or (5), as the case may be, has expired.

(7) The arbitral tribunal may rule on an objection as a preliminary question or may deal with it in an award.

(8) If the arbitral tribunal rules on an objection as a preliminary question, a party may, within thirty days after receiving notice of the ruling, make an application to the court to decide the matter.

(9) There is no appeal from the court’s decision.

[26] If section 17(8) of the Act applies, the hearing is de novo: Electek Power Services Inc. v. Greenfield Energy Centre Limited Partnership, at para. 21.[^5] In The Russian Federation, Corbett J. explained what the phrase “to decide the matter” means in s. 11(1) of the International Commercial Arbitration Act, 2017,[^6] a provision which is the same as s. 17(8) of the Act:

The court is “to decide the matter.” It is not “to review the tribunal’s decision.” “The matter”, referenced in both art. 16(1) of the Model Law and s.11(1) of the International Commercial Arbitration Act, 2017 is the issue of the tribunal’s jurisdiction. This is clear language conferring original jurisdiction on the court to adjudicate the question of the tribunal’s jurisdiction. This language is not qualified by a privative clause or terms of reference for the application. The court’s task is entirely described by the phrase “decide the matter.”[^7]

[27] Section 17(8) confers original jurisdiction on this court to adjudicate the question of the Arbitrator’s jurisdiction and the associated objection as to the existence or validity of the arbitration agreement (as contemplated by s. 17(1) of the Act). As the Court of Appeal for Ontario stated in Secure Solutions Inc. v. Smiths Detection Toronto Ltd., at para. 4: “[i]f there is no arbitration provision contracted for at the relevant time, that ends the matter.”[^8]

[28] Norm’s counsel wrote to counsel for Laureen and June to confirm Norm’s intention to bring a motion pursuant to s. 17, “objecting to the arbitrator’s jurisdiction.” The parties’ intention to proceed under s. 17 of the Act is expressly referenced in para. 1 of the Agreement and Submission to Arbitration which states that the parties “agree that the issue of the existence and validity of the alleged arbitration agreement and the jurisdiction of the Arbitrator shall be decided by the Arbitrator by way of motion pursuant to s. 17 of the [Act].”

[29] Section 17(7) distinguishes between a ruling and an award: “[t]he arbitral tribunal may rule on an objection as a preliminary question or may deal with it in an award.” An “award” is an arbitrator’s ultimate decision on the merits of a dispute: 1107051 Ontario Ltd. v. GG Kingspa Enterprises Limited Partnership, at para. 31.[^9] By contrast, the Arbitrator’s ruling was of a preliminary nature. Indeed, the Arbitrator himself described the motion as a “preliminary jurisdictional motion pursuant to s. 17(1)” of the Act.[^10] Noting that his jurisdiction was limited to ruling on the validity of the arbitration clause, the Arbitrator expressly declined to rule on other issues raised in argument before him.[^11]

[30] Laureen and June submit that there were two arbitration agreements: (i) the arbitration agreement in the alleged lease; and (ii) the parties’ Agreement and Submission to Arbitration. They say the proceeding before the Arbitrator was a “complete, stand-alone arbitration in which the Ruling is the award.”

[31] With respect, Laureen and June’s submission cannot be reconciled with the statutory framework, the Agreement and Submission to Arbitration, and the Arbitrator’s own Ruling. Section 17 of the Act distinguishes between a ruling and an award. The Arbitrator ruled on the preliminary question of jurisdiction, not on the merits of the underlying dispute and did, “in that connection” rule on Norm’s objection with respect to the existence or validity of the alleged lease: Act, s. 17(1). The position taken by Laureen and June would effectively read s. 17(8) out of the Act.

[32] The Agreement and Submission to Arbitration sets out the parties’ agreement to have the Arbitrator decide the issue of the existence and validity of the alleged arbitration agreement and the jurisdiction of the Arbitrator “by way of motion pursuant to section 17 of the Arbitration Act, 1991” – that is, by way of preliminary motion. The Agreement and Submission to Arbitration refers to Norm’s objection that a binding arbitration agreement exists, again invoking the language of s. 17(1) of the Act. The parties’ intention as to the manner of proceeding was also confirmed expressly by the Arbitrator who described the motion as a preliminary jurisdictional motion pursuant to s. 17(1) of the Act.

[33] The overriding concern in the interpretation of contracts is to determine the parties’ intent and the scope of their understanding; to do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract: Sattva Capital Corp. v. Creston Moly Corp., at para. 47.[^12] The words of the Agreement and Submission to Arbitration make clear that the proceeding before the Arbitrator was a preliminary jurisdictional motion under s. 17(1) of the Act. The Arbitrator issued his ruling on jurisdiction and Norm has applied to the court under s. 17(8) to “decide the matter.” The hearing before this court is a hearing de novo; in other words, a “normal application under the Rules of Civil Procedure.”[^13]

Issue 2: Is the alleged lease valid?

[34] The issue of jurisdiction turns on whether the alleged lease is valid: if it is invalid, there is no arbitration agreement. I begin my analysis by setting out the applicable legal principles in cases where forgery is alleged, followed by the legal principles that govern my assessment of the evidence. I then analyse the evidence of the lay and expert witnesses.

(i) Applicable legal principles where forgery is alleged

[35] In cases of potential forgery, the burden is on the party seeking to authenticate a document to prove that it was signed by the other party, on a balance of probabilities: Bank of Montreal v. Karimian, at para. 12;[^14] Somerville National Leasing and Rentals Ltd. v. Vassileva, at para. 11.[^15] Laureen and June are required to adduce “sufficiently clear, convincing and cogent evidence” that Norm signed the alleged lease in order to discharge their legal burden: F.H. v. McDougall, at para. 46.[^16]

[36] The respondents seemingly acknowledge that the burden of proof lies on the party seeking to authenticate a document but submit that the issue of forgery “is not Norm’s case.” With respect, it is. That is precisely the objection taken by Norm to the validity of the lease.

[37] Laureen and June rely on the decision of Cullin J. in 2089322 Ontario Corporation v. Desroches.[^17] In my view, this case does not assist the respondents. One of the issues before the court in 2089322 Ontario was whether the respondent should be granted interim possession of the business premises. The applicant was in possession of the premises pursuant to an interim injunction previously granted by Koke J. In granting the interim injunction, Koke J. accepted a joint venture agreement as authentic on face. On appeal, the Court of Appeal agreed that this was the appropriate approach on a motion for interim injunctive relief. Justice Cullin followed the same approach, because “[t]o do otherwise would require the court to accept the allegations of fraud and forgery regarding the execution of the JVA; in my view it would be wholly inappropriate to accept such controversial allegations in the absence of a full hearing.”

[38] This is a hearing de novo, and not a motion for interim relief. I am required to make findings of fact and credibility that go to the core issue in the application – whether Norm signed the alleged lease. Norm alleges fraud in connection with his alleged signature on the document. The burden of proving the authenticity of the alleged lease on a balance of probabilities rests with Laureen and June.

(ii) Legal principles governing the assessment of the evidence

[39] The factors the court is to consider in assessing the veracity of the testimony of witnesses in the context of the evidence as a whole were summarized by Vella J. in Tsitsos v. Poka.[^18] These factors include:

(i) the internal consistency of the testimony;

(ii) the presence of external evidence that supports or refutes the witness’ testimony;

(iii) factors that warrant drawing an adverse inference against the witness;

(iv) the extent to which the witness was forthright and candid or, conversely, evasive and non-responsive in the course of their testimony;

(v) the extent to which the witness appeared to have selective memory; and

(vi) consideration of whether the version of events testified to “makes sense” within the surrounding circumstances.[^19]

[40] In assessing the credibility and reliability of the affidavit evidence, I considered the following factors set out in Gray v. Brathwaite, at para. 9:

(i) the presence or absence of details supporting conclusory assertions;

(ii) artful drafting which shields equivocation;

(iii) use of language in an affidavit which is inappropriate to the particular witness;

(iv) indications that the deponent has not read the affidavit;

(v) affidavits which lack the best evidence available;

(vi) lack of precision and factual errors;

(vii) omission of significant facts which should have been addressed; and

(viii) disguised hearsay.[^20]

(iii) Assessment of the evidence of the lay witnesses

(a) Preliminary issue: Laureen’s supplementary affidavit sworn April 5, 2022

[41] Laureen and June submitted that if the court application was a hearing de novo, I should accept into evidence the supplementary affidavit of Laureen sworn April 5, 2022. The supplementary affidavit was delivered after Laureen was cross-examined. The Arbitrator denied Laureen and June’s request to admit the supplementary affidavit into evidence. I, too, declined to admit the affidavit into evidence, with my reasons to be provided in these reasons for judgment.

[42] Rule 39.02(2) does not apply. Rule 39.02(2) permits a party who has cross-examined on an affidavit delivered by an adverse party to subsequently deliver an affidavit for use at the hearing of a motion with leave or on consent. In this case, Laureen was cross-examined. The respondents seek to file a supplementary affidavit to address what occurred on Laureen’s own cross-examination. It is not responding to something raised by Norm. I agree with the comment expressed by Grace J. in Fanshawe College v. AU Optronics: “If affiants were permitted to file further affidavits following cross-examination, when would the evidentiary record ever be complete? It would be almost impossible to say.”[^21] In addition, the parties agreed to put before this court the evidentiary record that was before the Arbitrator. That record did not include Laureen’s supplementary affidavit sworn April 5, 2022. For these reasons, I declined to admit the affidavit into evidence.

(b) Norm’s evidence

[43] Norm swore two affidavits: the first dated November 2, 2020, and the second dated January 15, 2021. Norm has consistently denied ever having signed the alleged lease. In his November 2 affidavit, Norm denies that the signature appearing on the copy of the alleged lease attached to Scott’s July 31, 2020 affidavit is his. Norm also denies that the signature on the copy of the alleged lease provided to Ms. Ibrahim is his. He states that there are visual differences between the two signatures.

[44] Norm states that in the summer of 2012, Gary approached him at the cottage and presented him with a lease agreement that Gary asked him to sign. After reviewing the document in detail, Norm decided he did not want to sign the document and he did not do so. Norm says that he placed the unsigned document in his briefcase and that Gary never followed up with him again. No one asked Norm about the document or raised it in any fashion until the summer of 2020. Norm kept the blank copy of the lease given to him by Gary which corroborates Norm’s recollection of events. I also note that Norm referred to the 2012 date before he knew that June initially wrote July 2012 on her copy of the alleged lease, and before he knew that Laureen applied “white out” to the 2012 date because she “didn’t want it to be apparent that the date had been changed” as she admitted on cross-examination.

[45] Norm was not seriously impeached on cross-examination. His evidence remained consistent throughout and his version of events did not change. He did not guess when he did not know the answer; conversely, when he was certain, he provided those details. For example, regarding his meeting with Gary in 2012, Norm stated that June and Gary were both present, that he put the alleged lease in his briefcase, and he “knew” it was a Saturday when they met.

[46] Laureen and June say that there are significant reliability issues with Norm’s evidence. I disagree. For example, Laureen and June point to Norm’s “avowed animosity” towards the prospective purchasers – Scott, Mr. Lillico, and Amy – and his “marked preference” for his own son. Norm’s attitudes towards his nephews, niece, and son are of little relevance to the central issue in this case: whether Norm signed the lease agreement.

[47] Laureen and June submit that the request to inspect served by Norm was somehow improper because it was “made in the wrong proceeding.” Again, I disagree. I am also not prepared to infer, as the respondents’ invite me to do, that Norm’s delay in raising the issue is inconsistent with his position that the signatures on the alleged lease documents are not his. First, I note that the certificate of pending litigation, obtained based on Scott’s July 31, 2020 affidavit, was registered after the sale of the cottage property. Second, Norm’s request to inspect the document is consistent with his evidence that he did not sign the alleged lease in 2005 or at all. Third, it does not rest with Laureen and June to advance such a submission given the evolving nature of their evidence as I will discuss.

[48] Norm’s frank admission on cross-examination that he had stopped paying municipal taxes and passed on his share of those taxes to the other cottage owners without disclosure is also of tangential relevance. Similarly, Norm’s apparent ignorance until 2020 that he was part owner of a private road does not reflect adversely on his reliability in relation to the core events. In that regard, Norm’s evidence remained consistent and withstood vigorous cross-examination.

[49] There is external evidence that supports Norm’s testimony. It does not make sense that, having completed the purchase transactions from six of his siblings in the summer of 2005, he would then encumber his interest with a 50-year lease, including a right of first refusal for a rent of $1 per year. In addition, the document referred to as the “Kealey/Clost Agreement” entered into in 2006 contains provisions that I find are inconsistent with Norm having executed the alleged lease. For example, the Kealey/Clost Agreement contains a grant of Dalton’s cottage to their families to have access for the remainder of their life and for their children. If quiet enjoyment had already been granted in the alleged lease, there would be no need for this provision. The maintenance provisions in the Kealey/Clost Agreement are much less detailed than those in the alleged lease. Finally, the Kealey/Clost Agreement contains provisions dealing with the potential future sale of Dalton’s cottage. There would be no need for these provisions given the provision in the alleged lease that if the lessees decide to sell Dalton’s Cottage, Norm agrees to purchase the building at fair market value.

[50] Finally, Laureen and June’s submission that all the respondents’ witnesses say that Norm did sign the alleged lease in August 2005 is not correct. At this point I turn to the respondents’ lay witnesses.

(c) Laureen and June’s evidence

[51] It is useful to consider Laureen and June’s evidence together for the principal reason that Laureen admitted on cross-examination that June’s November 9, 2020 affidavit was originally intended to be the only affidavit filed by the respondents. In contrast to Norm’s evidence on the core issue, Laureen and June’s evidence was internally inconsistent and evolved over time. I agree with Norm’s characterization that their evidence was “revisionist."

[52] In her November 9, 2020 affidavit, June states that on August 19, 2005, Norm signed the alleged lease “along with myself and Laureen.” Then, the transfer agreement and power of attorney were signed “by Norm, myself, Bev and Laureen. All documents were witnessed by Adam Clost.” June explained why the two copies of the alleged lease referred to in Norm’s November 2, 2020 affidavit are different. She states – for the first time – that “when the Lease was signed, we signed four original counterparts, one for each signatory.” June scanned her counterpart and explained that Laureen found her counterpart while moving to a new home.

[53] June expressly states in her November 9, 2020 affidavit that she asked Laureen to review her affidavit. June states that “[s]he [Laureen] has advised me that she did not identify any inaccuracy therein.” But when Laureen was cross-examined, she originally denied reviewing June’s affidavit; Laureen later changed her evidence.

[54] Following the Arbitrator’s order permitting Norm to retain an expert on the subject of ink dating, Laureen and June provided additional affidavits. In her November 27, 2020 affidavit, June states that she was the source of the incorrect information that the alleged lease was signed on July 10, 2012. She says she reminded Scott of the alleged lease when responsibilities for Dalton’s cottage were being transferred to Scott, Mr. Lillico, and Amy in late 2018 or early 2019. When June found her copy of the alleged lease in mid to late June 2020, she noticed that the date had not been filled in. She incorrectly identified the wrong visit by her sister Beverley for her calculation as to the date she filled in, being July 10, 2012.

[55] In her November 27, 2020 affidavit, June maintains that the alleged lease was signed by Norm at the same time the transfer agreement and power of attorney documentation were signed: “[They] are dated August 19, 2005 and I have no reason to believe that that date is wrong.” June further explained that her calculation was wrong because they did not sign the other documents until after Norm had signed the alleged lease: “[h]is agreement to the Lease was our condition to sign his documents. This was the one time we had both the leverage and reason to get Norm to sign a lease.” June adopts the statements contained in Laureen’s affidavit that they signed June’s “original Lease” and revised the date in the summer of 2020, when Laureen found her original. June states “regardless of the fact that Laureen, Adam Clost and I added our signatures in 2020, Norm did sign the Lease in 2005, in the presence of Adam Clost.”

[56] I turn to Laureen’s November 27, 2020 affidavit. In it, Laureen states that the alleged lease was signed by Norm at the same time as the transfer and power of attorney documents, that is, on August 19, 2005. Laureen believes there were four originals of the alleged lease signed by Norm. One was “fully signed, dated and witnessed and given to Norm.” Norm signed all of the originals on August 19, 2005. Laureen describes the signing meeting as “short and hectic.” In the rush, June and Laureen did not fully execute their originals, nor did Adam witness those originals.

[57] In late June 2020, June and Gary came over to Laureen’s home. June brought her original of the alleged lease, signed by Norm, but without the other signatures. It was dated July 10, 2012. Laureen immediately thought it was the wrong date as that date appeared to be too recent. Laureen states there was no doubt “for any of us” that the alleged lease was signed by Norm on the same day as the transfer agreement and power of attorney. June and Laureen signed June’s original and Laureen made a copy. Laureen used white out to delete the incorrect date on June’s copy of the alleged lease and inserted the correct date. Laureen then made a copy of the revised copy. A digital copy of that document was provided to Scott for his use on the motion for the CPL.

[58] Laureen located her original of the alleged lease the weekend of August 14, 2020. Like June’s, Laureen’s original was signed by Norm only. Laureen dated hers August 19, 2005, June and Laureen signed it, and Adam witnessed it.

[59] Laureen and June’s evidence on the core events did not withstand cross-examination. There are significant internal and external inconsistencies. I have already referred to the fact that on cross-examination, Laureen originally denied reviewing June’s November 9, 2020 affidavit. She then proceeded to change her evidence. On cross-examination, June admitted that she did not sign the alleged lease at the signing meeting on August 19, 2005, contrary to the statement contained in her first affidavit. This, despite deposing in her first affidavit that she remembers signing the alleged lease sitting in the gazebo. The respondents’ submission that June’s admission on cross-examination simply means she did not sign her copy of the alleged lease that day strains credulity. In the same vein, counsel’s suggestion that Laureen and June “forgot” to sign the alleged lease on August 19, 2005 is inconsistent with the testimony that they chose not to sign it.

[60] I also note that June’s statement in her November 9, 2020 affidavit that the alleged lease was signed by her, Laureen, and Adam in 2005 is contradicted by Adam’s testimony on cross-examination. Adam admitted that he only signed the alleged lease in 2020 because Laureen and June asked him to and he could not remember if Norm signed the alleged lease in 2005. Adam’s evidence itself has shortcomings to which I will turn shortly.

[61] June’s failure to disclose in her first affidavit that she participated with Laureen in erasing the July 10, 2012 date and applying correction fluid to her original of the alleged lease is a serious omission that reflects adversely on June’s credibility.

[62] It is internally contradictory for June to suggest, as she does in her November 9, 2020 affidavit that it “became evident that Norm was planning to deny the authenticity of the Lease and request access to one of our wet-ink counterparts.” Norm first communicated his position regarding the alleged lease in mid-August 2020. It does not make sense for June and Laureen to think in July 2020 that Norm would request access to one of their wet-ink counterparts if their recollection of the 2005 signing meeting was that Norm left the table with a fully signed copy of the alleged lease. That was Laureen’s testimony on cross-examination.

[63] Laureen was cross-examined on her 2020 alterations to the alleged lease:

Q. 334 And then why did you make a revised copy of the copy?

A. Probably because I didn’t want the whiteout to show.

Q. 336 Can we agree that you used whiteout on the original so that it would be undetectable that the date had been changed? You didn’t want it to be apparent that the date had been changed, is that fair?

A. No, I didn’t want it to be apparent that the date had been changed.

[64] Laureen was also cross-examined on the circumstances surrounding Adam attaching his signature as witness to the alleged lease in 2020. Laureen testified that she could not remember telling him that she and June had just put their signatures on the document a few days earlier. And then she made the following admission:

Q. 58 So, then how would Adam have known that that was the case [that their signatures were from a couple of days before]?

A. If I mentioned to Adam that it was blank when I found it, like again, I do not remember those specifics. [emphasis added]

[65] Laureen’s admission that the alleged lease was blank when she found it is consistent with Norm’s version of events and is inconsistent with Laureen and June’s evidence that Norm signed the alleged lease on August 19, 2005. I give no weight whatsoever to the submission by respondents’ counsel that Laureen did not refer to the alleged lease as “fully blank” when she found it. With respect, a document is either blank or it is not.

[66] On cross-examination, Laureen acknowledged that although she knew on November 9, 2020 that the copy of the alleged lease had been altered and backdated, she did not tell June to include this fact in her first affidavit. This is a serious omission of a significant material fact that ought to have been addressed. In attempting to excuse her conduct in altering the document Laureen agreed the document “had been altered, yes, but signed by Norm.” Her excuse is contrary to her admission that “it was blank when I found it.”

[67] I find it implausible that Laureen could describe the details about the signing meeting on August 19, 2005 but she was unable to remember much more recent events. She claims that at the signing meeting in 2005, everyone was standing at the table in the gazebo where the documents were allegedly signed and she claims to remember where everyone was situated and what they were doing. By contrast, Laureen was unable to remember whether she had seen a copy of Adam’s affidavit before she swore her own in 2020 or whether in November 2020 she met with June in person and if anyone was there when they discussed the contents of her November 27 affidavit. Nor could Laureen recall whether they signed Laureen’s version of the alleged lease together or if she, Laureen, had signed the document before attending June’s house. And, in any event, her description of the details of the signing meeting is entirely negated by the admission that the alleged lease was blank when she found it.

[68] Laureen and June’s changing versions of events and the inconsistencies in their evidence (both internal and external) compel the finding that they wanted to hide the fact that their copies of the alleged lease were not signed by them or by Adam in 2005. They withheld information, including from Adam. Adam testified that all Laureen told him in 2020 was “this document was executed by everyone in 2005 but we forgot to get you to witness our copies.” On Laureen and June’s own evidence, this statement to Adam was untrue.

[69] In addition, June originally wrote July 2012 on her copy of the alleged lease. Scott deposed that in May or early June of 2020, his mother – June – advised him that the date of the lease was 2012. Laureen applied correction fluid to the 2012 date because, as she admitted on cross-examination, she did not want it to be apparent that the date had been changed. The July 2012 date is clearly visible underneath the correction fluid.

[70] Laureen and June submit that their position that the alleged lease is valid is supported by Norm’s performance of the alleged lease until June 2020. I reject this submission. First, I accept Norm’s evidence that after Gary approached him with a form of lease document in the summer of 2012, the alleged lease was not raised with Norm until the summer of 2020. Second, this argument fails to account for the existence and terms of the 2006 Kealey/Clost agreement which I have previously discussed.

[71] On the whole of the evidence, I find Laureen and June displayed a deliberate disregard for the truth. On the central issue, neither is a credible witness.

(d) Adam’s evidence

[72] Adam is the son of Norm’s brother Gordan who remains a one-eighth owner of the cottage property. The parties agree that Adam witnessed the transfer and assignment agreements that were executed on August 19, 2005. In his affidavit, Adam deposes that he saw Norm, Laureen, and June sign the lease agreement on August 19, 2005 and “[t]he signatures shown as the witness on the lease agreement and the purchase agreement are mine.”

[73] Adam’s credibility is significantly undermined by the admissions and acknowledgements made by him on cross-examination. First, he admitted that he added his signatures to versions of the alleged lease in the summer of 2020 – a fact omitted from his affidavit. Second, he acknowledged he had no independent recollection of witnessing the execution of the alleged lease in 2005 and admitted that he did not remember if Norm had signed the alleged lease in 2005. I note that later in the cross-examination, Adam changed his testimony and claimed that he remembered the signing in 2005 “so that’s why I was comfortable in signing those new documents.” Third, he admitted on cross-examination that before swearing his affidavit, Laureen and June told him that everyone signed the various versions of the alleged lease in 2005 but he forgot to add his witness signatures. Adam omitted to state in his affidavit that he relied on his aunts’ representations that all of the signatures were added to the alleged lease in 2005 save for his.

[74] Adam acknowledged on cross-examination that, had he been told that the alleged lease was blank when Laureen found it, he would have questioned whether it was appropriate for him to do what he was being asked to do – add his witness signature.

[75] Finally, I find that Adam was evasive when answering questions about white out and backdating of the alleged lease, repeatedly answering that he did not recall.

(e) Gary’s evidence

[76] Gary swore an affidavit dated November 9, 2020. Gary deposes that he provided Norm with a blank version of the alleged lease in 2005, not in 2012 as alleged by Norm. Gary states that he prepared the alleged lease because “he was concerned that later on, Norm might ignore or attempt to deny the cottage ownership by Dalton’s children. I wanted to ensure that the family tie to the Estate Land was protected, should Norm decide to sell his share in the future.” This explanation conflicts with that provided by his spouse, June, in her affidavit of the same date: Laureen and June wanted a “commitment in writing” that Norm would never sell the property.

[77] Gary claims to have a detailed recollection of Norm signing the alleged lease in 2005. He says that he took his computer and printer to the cottage and printed out a draft of the alleged lease for Norm to review. Gary further states that Norm did not require any changes and signed it that day. Gary’s testimony that Norm signed the alleged lease in 2005 is inconsistent with Laureen’s admission that the alleged lease was blank when she found it.

[78] Gary was evasive on cross-examination. For example, when he was asked whether he was present when Laureen, June, and Adam signed their counterparts of the alleged lease in 2020, Gary answered “I believe I may have been.” When asked where the signing occurred, Gary responded “I don’t recollect” and when asked whether he specifically remembered anything about the meeting, he answered “not really.” As a final example, when Gary was asked if he remembered whether Laureen and June added their signatures at the same time, Gary couched his answer, stating: “As near as I can recollect there may have been a signing of one document at one time and possibly the other document at another time.” This evasiveness and vague recollection of events that occurred a few months before his cross-examination stand in stark contrast to Gary’s detailed recollection of the signing meeting in August 2005. Gary’s evasiveness in relation to key events undermines his credibility.

(f) Scott’s evidence

[79] Scott swore an affidavit on July 31, 2020 in support of his (together with Mr. Lillico and Amy’s) motion for a CPL. He also swore an affidavit on November 27, 2020. While his first affidavit would lead the reader to believe that Scott could attest to the veracity of the alleged lease, Scott acknowledges in his later affidavit that he was not present when the alleged lease was allegedly signed in 2005. He deposes “I have no independent knowledge of the date when the Lease was signed, and can only rely on information from my parents [June and Gary], aunt Laureen and Adam Clost.” Scott’s evidence is of no assistance in determining the validity of the alleged lease.

(g) Conclusion regarding the lay witnesses

[80] In summary, I find Norm a credible and reliable witness. On the core issue, neither Laureen for June is credible. I do not believe them. Their evidence was revisionist and they displayed a deliberate disregard for the truth. The respondents’ submission that there is “ample evidence” to support there being a fully executed copy of the alleged lease following the August 19, 2005 signing meeting is without merit. The respondents’ own evidence contradicts this assertion.

(iv) Assessment of the evidence of the expert witnesses

[81] There is no issue regarding the admissibility of the expert opinion evidence given the parties’ agreement to rely on the entire record that was before the Arbitrator.

(a) The handwriting experts

[82] Norm relies on the forensic document examination opinion evidence of Ms. Ibrahim and Marc Gaudreau. Ms. Ibrahim swore affidavits dated October 14, 2020 and August 30, 2021. Mr. Gaudreau’s forensic document examination affidavit was sworn February 12, 2021. Mr. Gaudreau also has expertise in ink dating.[^22] Ms. Ibrahim and Mr. Gaudreau work together and peer review each other’s work.

[83] Laureen and June rely on the forensic document examination opinion evidence of Jennifer Naso. Ms. Naso swore an affidavit dated May 27, 2021.

[84] The chronology of when Laureen and June provided the versions of the alleged lease to the experts is important to put in context the information available to Ms. Ibrahim when she prepared her first report in October 2020. Laureen’s version of the alleged lease was provided to Ms. Ibrahim on October 5, 2020. As of that date, Laureen and June had not disclosed that there were multiple counterparts of the alleged lease. Scott’s July 31, 2020 affidavit refers to the alleged lease in the singular. Ms. Ibrahim finalized her October 14, 2020 expert report based solely on her examination of Laureen’s alleged counterpart – a document that Laureen admitted was blank when she found it.

[85] The affidavits served by Laureen and June on November 9, 2020 – Adam’s, sworn August 18, 2020, June’s, sworn November 9, 2020, and Gary’s, sworn November 9, 2020 – claim for the first time that four original counterparts were signed in 2005. Then, in her affidavit of November 27, 2020, Laureen disclosed that different documents were provided to Scott for use on the CPL motion and to Ms. Ibrahim on October 5, 2020.

[86] On November 11, 2020, Norm advised that he would also retain an ink dating expert. Laureen and June were then ordered to produce “[a]ll wet ink versions of the alleged lease agreement, dated August 19, 2005, represented by the Proposed Plaintiffs as being an original by Laureen Rennie.” Norm retained Mr. Gaudreau to conduct both a handwriting comparison and ink analysis of the signatures.

[87] In her initial expert report, Ms. Ibrahim compared the alleged Norm Clost signature found in Laureen’s version of the alleged lease (referred to as Q1) as against admitted original signatures of Norm from 2001 to 2006. Ms. Ibrahim used macroscopic and microscopic analysis of specimens against the questioned material by observing similarities and divergences. Ms. Ibrahim did not have June’s version of the alleged lease, nor did she have other photocopies of the alleged lease.

[88] In Ms. Ibrahim’s opinion, Q1 was “executed with fairly rapid speed, and ink line redirections requiring both fine finger movement and large movements to execute.” She described Q1 to be a complex signature. Ms. Ibrahim examined the known specimen signatures to determine the “natural range of variation” in the execution of Norm’s signature. Ms. Ibrahim provided detailed lists of similarities and divergences between Q1 to the known samples. Divergences were noted in the size and length of the initial “N”, “both in the upstroke and the descender which extends far below the baseline ending in a smooth hook-shape that was not evidenced in the specimen material.”

[89] Ms. Ibrahim concluded that “there is a significant concordance with the features resulting in observations being assessed as finding of significant similarities, and this combination of similarities, together with some divergences forms the basis of my conclusion.” She opined that Q1 was “probably written” by the writer of the specimen material.

[90] Mr. Gaudreau’s analysis focused on Q2(a), identified as the wet ink original belonging to June. Based on the visual observation of Q2(a), he undertook a more complete examination and comparison against the specimen material. Mr. Gaudreau identified divergences between Q2(a) and the specimen signatures:

The images in Figure 11 below show areas of interest in the comparison. These areas of the signature reveal possible retouching or pen lifts and hesitations and are indicated in the images below with red arrows. While these features can be associated with simulation activity, the specimen material displays sufficient variation such that it cannot preclude this writer being the author of the Q2(a) signature. The findings indicate that there is equal likelihood that this signature is the product of the specimen writer or of another writer. [emphasis added]

[91] In preparing her report, Ms. Naso had June’s version of the alleged lease with the correction fluid, identified as Q3(b), and Q4(c), being a “copy of Q2, bearing handwritten ink entries on page, and witness signatures from Q2, dated August 19, 2005.” These documents were not examined by Ms. Naso. Ms. Naso conducted a comparison between questioned signatures Q1(d) and Q2(a) and the known comparison signatures. She did not address the divergences identified by Ms. Ibrahim in Q1. Ms. Naso opined that “based on the evidence submitted, it is highly probable that Norman Clost Jr., wrote the questioned “Norman Clost Jr.” signatures appearing on Exhibits Q1(d) and Q2(a).”

[92] Norm relies on R. v. Rockwood as to the importance of peer review in handwriting analysis.[^23] Ms. Ibrahim and Mr. Gaudreau peer reviewed each other’s work; Ms. Naso’s opinion was not peer reviewed. Laureen and June submit that peer review is not required and that, in any event, because Ms. Ibrahim and Mr. Gaudreau are common law spouses, their review of each other’s work cannot be said to be truly independent. That said, I need not consider the issue of peer review further because of the far more significant shortcomings with Ms. Naso’s evidence.

[93] Ms. Ibrahim and Mr. Gaudreau’s evidence withstood cross-examination. Ms. Naso’s evidence did not. For example, Ms. Naso initially agreed on cross-examination that she was asked to examine and provide an opinion regarding the signatures and to review and provide comments on the reports of Mr. Gaudreau and Ms. Ibrahim. When Ms. Naso was then asked why did not do so, she changed her testimony, stating that she was not asked to do so. She attempted to distance herself from her instruction letter. Ms. Naso then stated on cross-examination that she proceeded on the basis of a telephone call with counsel for the respondents that “focused on my examination and not really the rebuttal of those Expert Reports.”

[94] In addition, Ms. Naso was asked about what she identified in her report as “gooping.” She explained that “these areas appear to be the result of pen defects and no intentional patching or overwriting.” Ms. Naso initially refused to acknowledge that it was possible for the “gooping” to have been caused by a pen stop or hesitation. She then agreed that “impossible” was a strong word and that “anything was possible.” Ms. Naso did not include this possible alternative explanation in her report.

[95] I find it inexplicable that Ms. Naso had available to her versions of the alleged lease that she did not examine. Ms. Naso acknowledged on cross-examination that it would have increased the reliability of her opinion had she done so. She also admitted on cross-examination that she was expressly instructed by counsel for the respondents to only examine Q1(d) and Q2(a):

Q. 307 And so it is your evidence that you had these documents available to you, had you been instructed to conduct those examinations, but you were instructed not to?

A. Yes. As far as I know, they were not relevant to my participation in this Examination.

Q. 308. And the relevance is as determined by Ms. Baru – Right? – in her Instructions.

A. Yes. I was told that the two documents that I listed at Q1(d) and Q2(a) were the ones that needed to be examined.

[96] These matters seriously undermine Ms. Naso’s credibility as well as the reliability of her opinion.

[97] Having regard to the frailties of Ms. Naso’s evidence, the limitations on Ms. Ibrahim’s opinion – the responsibility for which rests with Laureen and June – and Mr. Gaudreau’s “equal likelihood” opinion, I conclude that in relation to this evidence, Laureen and June have failed to put forward clear, cogent, and persuasive evidence that the signature on the alleged lease is Norm’s.

(b) The ink dating expert evidence

[98] I find that the ink dating expert evidence contradicts the narrative advanced by Laureen and June that Norm signed the alleged lease in 2005. While ink dating cannot determine precisely when a signature was placed on a document, it can provide information about the ink’s relative “freshness” by measuring the solvent in ink (2-phenoxyethanol or “2-PE”) in nanograms per microliter. This is because as soon as the signatures were placed on the versions of the alleged lease, the solvent in the ink started to evaporate.

[99] Mr. Gaudreau was retained by Norm to provide expert opinion evidence in determining whether the ink in the “Norm Clost” signatures could have been placed on the alleged lease in 2005. Mr. Gaudreau tested the signatures on Q1(d) and Q2(a). These were the versions of the alleged lease in the possession of Laureen and June. Based on his analysis, Mr. Gaudreau concluded that the ink in the “Norm Clost” signatures contained solvent in an amount inconsistent with documents created 15 years prior to his testing in February 2021. In his opinion, the signatures were “highly probably not from 2005, or even 2012, as indicated in the various scenarios offered.” He opined that the age of the ink in the “Norm Clost” signatures was less than three or four years old, again, as at the time of testing.

[100] Laureen and June retained Gerald Laporte to respond to Mr. Gaudreau’s report. Mr. Laporte is of the opinion that ink dating is of no assistance in this case because of alleged contamination.

[101] The Solvent Loss Ratio (“SLR”) method is one analytical method used for ink dating. Both Mr. Gaudreau and Mr. Laporte agree that the SLR method is generally accepted in the scientific community for dating ballpoint pen inks. The SLR method relies on gas chromatography/mass spectrometry. The gas chromatography/mass spectrometry does not provide the absolute values of 2-PE; instead, it provides peaks that assist in understanding the abundance of 2-PE. In order to obtain actual values, the data needs to be normalized. By comparing the absolute amount of 2-PE in an ink sample to a known data set generated over the course of five years by the Canadian Border Services Agency’s laboratory, Mr. Gaudreau expressed an opinion about whether there is a likelihood that the ink is not its alleged age. The “ink aging curve” referred to by Mr. Gaudreau is a line placed above all of the data generated from this known data set. As explained by Mr. Gaudreau, the various data points under the ink aging curve constitute a cumulative and representative data set of inks that were monitored over five years. When a scientist tests the absolute value of 2-PE in an ink, they can plot the result on the graph and express an opinion about the ink’s purported age.

[102] Mr. Laporte asserts that an ink aging curve is inherently unreliable. However, he himself has never done this type of experimentation and he admits that the idea of an ink aging curve has been discussed in many forums for many years. CBSA’s unpublished data upon which Mr. Gaudreau relied was provided. Although the data is unpublished, this does not render the Government’s results unreliable. I reject, as speculative, Mr. Laporte’s assertion that an accurate ink aging curve cannot be produced.

[103] Significantly, Mr. Laporte’s reports did not disclose that he tested the unheated samples of the “Norm Clost” signatures in the gas chromatograph/mass spectrometry and obtained results. Nor did he disclose in his reports that based on his test results, he agrees that there is a “high” abundance of 2-PE in the “Norm Clost” signature ink for an ink purportedly placed on the paper 15 years earlier. And he failed to disclose that in Q2(a), he found an abundance of 2-PE in the signature of over one million counts – an abundance that he has not seen in a signature that is 15 years old. This information all emerged on Mr. Laporte’s cross-examination.

[104] Mr. Laporte explained the high abundance of 2-PE in the “Norm Clost” signature on the basis that it is more likely than not that the document was contaminated, rendering meaningful testing impossible. Mr. Laporte ceased all further chemical analysis of the documents as a result of the alleged contamination. However, Mr. Laporte admitted on cross-examination that he did not normalize his data and never calculated the concentration of the 2-PE that he detected in his paper blanks; instead, he made an “estimate.” Mr. Laporte speculated that a household cleaner could have caused contamination; however, there is no physical evidence of any such contamination, the abundance of 2-PE in the ink is 50 times greater than in the allegedly contaminated paper beside it, and there is no plausible explanation for how both documents became so similarly “contaminated.” Even the respondents acknowledge that the cause of any contamination amounts to pure speculation.

[105] According to Mr. Gaudreau, finding 2-PE in the area directly adjacent to the ink line would be expected for recently applied ink containing 2-PE. In Mr. Gaudreau’s opinion, finding 2-PE this close to the signature is not from contamination but instead, is more likely due to the migration of ink solvent away from the ink stroke. In addition, the presence of 2-PE in paper blanks beside the signature can also result from incidental contact with fresh ink such as “smearing.” This can occur where there are multiple signatories to the document. It does not render the results of the testing invalid.

[106] The omissions from Mr. Laporte’s reports are significant. I find his “contamination” explanation to be speculative and his failure to address reasonable alternative explanations, including migration, troubling. On cross-examination he was, at times, evasive. By contrast, Mr. Gaudreau’s evidence was clear, consistent, and intelligible. For these reasons, I prefer Mr. Gaudreau’s opinion that the “Norm Clost” signatures were “highly probably” not affixed to the alleged lease in 2005 or even 2012, and that the age of the ink in the signatures was less than three or four years old at the time of testing in 2021.

(v) Conclusion on the validity of the alleged lease

[107] On the whole of the evidence, Laureen and June have fallen far short of proving, on the balance of probabilities, that Norm executed the alleged lease on August 19, 2005. To the contrary, I accept Norm’s evidence that he did not sign the copies of the alleged lease and I find that the signatures on the alleged lease are not his. I therefore find the alleged lease invalid, including the arbitration clause. Accordingly, there is no jurisdiction to conduct the proposed arbitration.

Issue 3: If s. 17(8) does not apply, did the arbitrator err in law?

[108] Given my determination that the application is a hearing de novo under s. 17(8) of the Act, I need not consider this issue. I do note that s. 45(1) of the Act, which provides for an appeal, with leave, is predicated on there being an award. As I have found, the Arbitrator’s Ruling on Jurisdiction was not an award within the meaning of the Act.

Issue 4: Alternatively, should the Arbitrator’s ruling be set aside under s. 46 of the Act?

[109] Given my determination that the application is a hearing de novo under s. 17(8) of the Act, I also need not consider this issue. Like s. 45(1) of the Act, the grounds on which the court may set aside an arbitral award under s. 46(1) are predicated on there being an award. The Arbitrator’s Ruling on Jurisdiction was not an award.

Issue 5: Costs of the jurisdiction motion before the Arbitrator

[110] At Norm’s request, the Arbitrator stayed the determination of the costs of the preliminary motion on jurisdiction pending the hearing of this application pursuant to s. 17(8) of the Act. Norm now seeks costs of that motion; Laureen and June ask that the matter be remitted to the Arbitrator to determine costs.

[111] In Electek Power Services Inc. v. Greenfield Energy Centre Limited Partnership,[^24] Electek brought an application pursuant to s. 17(8) of the Act. The court application was a hearing de novo in which Electek sought an order setting aside a preliminary question decision by a panel of arbitrators that decided they had jurisdiction to proceed with the arbitration. Justice Perell granted the application, holding that the arbitrators had erred in assuming jurisdiction of the dispute. Justice Perell awarded Electek costs of the arbitration hearing and the court application.

[112] There is no question that this court has jurisdiction to rule on the costs of the motion before the Arbitrator given that this is a hearing de novo and the court has the jurisdiction “to decide the matter”; that would necessarily include the issue of costs. Subject to the parties reaching an agreement, I will be required to determine costs of the court application. I am now fully familiar with the record that was before the Arbitrator. Remitting the issue of costs to the Arbitrator would not result in any efficiencies. Accordingly, I will determine the costs of the motion before the Arbitrator in accordance with the timetable set out below.

Conclusion

[113] The application is granted, with costs to the applicant. I declare the alleged lease invalid because the “Norm Clost” signature is not the signature of the applicant. The Arbitrator’s preliminary ruling on jurisdiction dated April 21, 2022 is set aside, with costs of the jurisdiction motion to Norm.

[114] In the event the parties are unable to agree on costs of the motion before the Arbitrator and/or costs of the application, they may make written submissions limited to a maximum of ten pages (five pages each for the motion and the application), excluding relevant attachments. Norm shall deliver his costs submissions by January 3, 2024. Laureen and June shall deliver their responding costs submissions by January 24, 2024. There shall be no right of reply. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Justice R. Ryan Bell

Released: December 13, 2023

[^1]: For simplicity, I will refer to the parties and the affiants by their first names. [^2]: S.O. 1991, c. 17. [^3]: I refer to Adam Lillico as Mr. Lillico to distinguish between Mr. Lillico and Adam Clost, an affiant. [^4]: Ruling on Jurisdiction, para. 6. [^5]: 2022 ONSC 894, citing Hornepayne First Nation v. Ontario First Nations (2008) Ltd., 2021 ONSC 5534; The Russian Federation v. Luxtona Limited, 2021 ONSC 4604; Lululemon Athletica Canada Inc. v. Industrial Colour Productions Inc., 2021 BCCA 428. [^6]: S.O. 2017, c. 2, Sch. 5. [^7]: The Russian Federation, at para. 22. [^8]: 2011 ONCA 337. [^9]: 2022 ONSC 1847. See also Iris Technologies Inc. v. Rogers Communications Canada Inc., 2022 ONCA 634, at para. 7. [^10]: Ruling on Jurisdiction, para. 1. See also para. 3 of the Ruling on Jurisdiction. [^11]: Ruling on Jurisdiction, para. 84. [^12]: 2014 SCC 53, [2014] 2 S.C.R. 633. [^13]: Electek, at paras. 19-23. [^14]: 2003 ONSC 40827. [^15]: 2019 ONSC 2693. [^16]: 2008 SCC 53, [2008] 3 S.C.R. 41. [^17]: 2021 ONSC 3364. [^18]: 2021 ONSC 3418. [^19]: Tsitsos, at para. 21. [^20]: 2017 ONSC 1696, cited in Tsitsos, at para. 22. [^21]: 2015 ONSC 2046, at para. 43. [^22]: I deal with Mr. Gaudreau’s ink dating opinion below. [^23]: [2004] N.J. No. 132, at para. 15. [^24]: 2022 ONSC 2437, at para. 2.