Court File and Parties

COURT FILE NO.: FC-19-464 DATE: 2024/09/13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Lori Lane Bournon Applicant – and – Jeffrey Scott Bournon Respondent

COUNSEL: J. Irvine, for the Applicant Appearing in person, for the Respondent

HEARD: July 26, 2024

REASONS FOR RULING

THE HONOURABLE JUSTICE A.D. HILLIARD

Overview

[1] The Respondent, Mr. Bournon, brought a motion for leave to appeal the interim arbitral awards of Arbitrator Donald A. McIntyre from February 1, 2024 and June 25, 2019. He is also seeking orders to set aside those arbitral awards, for the Arbitrator to recuse himself, to nullify or invalidate the Mediation/Arbitration Agreement of August 22, 2018 and to nullify or invalidate the cost awards made by the Arbitrator on June 25, 2019 and February 1, 2024 respectively.

[2] In response, the Applicant, Ms. Bournon, brought a motion requesting that Mr. Bournon’s motion be dismissed and seeking an order permitting her to proceed on an uncontested basis with a request to enforce the February 2024 arbitral award.

[3] Both motions were heard together.

[4] For the reasons that follow, Mr. Bournon’s motion is dismissed and Ms. Bournon’s motion is granted.

Background

[5] The parties were married on February 14, 1998. They separated permanently as of May 1, 2017.

[6] On August 22, 2018, the parties entered into a Mediation/Arbitration Agreement, which provided for a joint retainer of Donald McIntyre as Arbitrator. Certificates of Independent Legal Advice are attached to that agreement for both Mr. and Ms. Bournon.

[7] At the time the Agreement was signed, Mr. Bournon was represented by Tracy Miller.

[8] The Mediation/Arbitration Agreement includes provisions waiving the parties’ rights to appeal interim awards on questions of fact or on question or mixed fact and law. It also specifically references section 45 (1) of the Arbitration Act, 1991, S.O. 1991, c. 17 in setting out the test for leave to appeal.

[9] The parties engaged in mediation as per the terms of the Agreement but were unsuccessful in reaching an agreement. A pre-arbitration conference was then held on February 5, 2019, at which time arbitration was scheduled for December 9, 2019. At the time of the conference, Mr. Bournon did not have a lawyer assisting him, having previously terminated his retainer with Ms. Miller.

[10] In March 2019, Mr. Bournon hired new counsel – Glenda McLeod.

[11] Ms. Bournon then brought a motion before the Arbitrator for interim spousal support and other relief. That motion was heard on June 19, 2019. Both parties were assisted by counsel at the motion hearing.

[12] The Arbitrator released his decision on June 25, 2019. Among other relief granted, Ms. Bournon was awarded interim spousal support and child support. On consent, with the assistance of counsel, Mr. Bournon consented to the interim Arbitral Award being made into a temporary order on September 17, 2019. The temporary order of Piccoli J. included a term that Mr. Bournon pay interim spousal support in the amount of $1,621 monthly and child support for one child monthly in the amount of $1,103.

[13] The decision on costs of the January 2019 motion was released by the Arbitrator on September 20, 2019. Ms Bournon was awarded $23,500 for the motion plus one-half of the fees incurred for the arbitration, resulting in a total costs award of $27,113.74.

[14] Mr. Bournon served a Notice of Appeal in relation to the Interim Arbitral Award and the costs awarded. That appeal was never heard or determined on the merits.

[15] Ms. Bournon then filed a Request to Enforce a Family Arbitration Award in relation to the September 2019 costs award. That matter was heard by Breithaupt Smith J. who, by chambers endorsement dated February 19, 2020, found that the Agreement meets all statutory requirements and the appeal from the costs award of September 20, 2019 was not issued in a timely fashion, was not pursued and was therefore deemed to have been withdrawn.

[16] In October 2023, Ms. Bournon filed another motion through the arbitration process. That motion was heard by the Arbitrator on January 22, 2024. That motion dealt largely with procedural matters, but also included a request regarding the funds held in trust from the sale of the matrimonial home. In response to Ms. Bournon’s motion, Mr. Bournon served his own motion seeking that the Arbitrator recuse himself, refund all fees paid by the parties for mediation and arbitration, declare the Mediation/Arbitration Agreement null and void, and rescind the previous interim awards.

[17] Both motions were heard on January 22, 2024. The Arbitrator granted the relief sought by Ms. Bournon and adjourned Mr. Bournon’s motion until he brought himself in compliance with the Interim Arbitral Award of June 25, 2019 and the Order of Piccoli J. dated September 17, 2019. Costs were awarded to Ms. Bournon in the sum of $14,000 payable forthwith. The Arbitrator also ordered that Mr. Bournon bear the entirety of the costs of the motion appearance on January 22, 2024 as invoiced.

[18] The basis of Mr. Bournon’s appeal is that the Arbitrator demonstrated a reasonable apprehension of bias in both the 2019 and 2024 hearings. Mr. Bournon further argues that he was forced to sign the Mediation/Arbitration Agreement by his then counsel and therefore the agreement should be declared null and void.

[19] Ms. Bournon argues that there is no merit to Mr. Bournon’s appeal and leave should therefore not be granted. She further argues that Mr. Bournon’s flagrant ongoing disregard for the Arbitral Awards and Court Orders should prevent him from further delaying these proceedings.

Analysis

Leave to Appeal

[20] Section 45(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 sets out the test for leave to appeal:

a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,

(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.

[21] Section 47(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 provides that an appeal “shall be commenced within thirty days” after the award. The only exception to this time limitation is, as set out in section 47(2), if corruption or fraud are alleged.

[22] Mr. Bournon is well past the limitation period on his request for leave to appeal the interim award from June 2019. There is nothing in the Act that provides a residual discretion for a Court to extend the limitation period for bringing a leave motion. Therefore, Mr. Bournon is statute barred from seeking leave to appeal the arbitral award from June 2019 and that request will therefore be dismissed.

[23] With respect to the request for leave to appeal the February 1, 2024 award, leave to appeal may only be granted on a question of law. Nowhere in Mr. Bournon’s material does he indicate what he alleges are the errors in law made by the Arbitrator. As put so succinctly by Kraft J., “[q]uestions of law are questions about what the correct legal test is.” Medjuck v Medjuck, 2024 ONSC 2980 at para 46 [1].

[24] There is nothing before me to indicate what errors of law, if any, were committed by the Arbitrator. Therefore Mr. Bournon has not demonstrated that the issue for which he is seeking leave to appeal is on a question of law. On that basis, leave is denied.

Reasonable Apprehension of Bias

[25] Pursuant to section 13(1) of the Arbitration Act, 1991, S.O. 1991, c. 17, there are only two (2) grounds upon which a party may challenge an arbitrator: (1) circumstances exist that may give rise to a reasonable apprehension of bias; or (2) the arbitrator does not possess the qualifications that the parties have agreed are necessary.

[26] A party may also challenge an Arbitral Award under section 46(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 on the basis of unfair or unequal treatment, or on the basis of a reasonable apprehension of bias [2].

[27] In his decision on an application to remove an arbitrator based on a reasonable apprehension of bias, Jarvis J. reiterated the test set out by the Ontario Court of Appeal:

6 There is no dispute between the parties about the test to be applied in determining either what amounts to a reasonable apprehension of bias or the evidentiary onus on the claimant. In A.M. v. J.M., 2015 ONCA 596, an appeal involving a parenting dispute, the Court of Appeal dealt with both.

The test for reasonable apprehension of bias was recently stated by this court in Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: "Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly". The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge's impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry...

7 These principles equally apply to arbitration proceedings. (citations omitted) Spivak v Hirsch, 2021 ONSC 4307 at para 6 – 7 [3].

[28] I agree with Jarvis J. that the principles enunciated by the Court of Appeal in A.M. apply to applications under the Arbitration Act where there is an allegation of a reasonable apprehension of bias. As per A.M., the onus is on Mr. Bournon to demonstrate that a reasonable and informed person reviewing the transcript of the arbitration would conclude that the Arbitrator did not decide fairly.

[29] In his factum, Mr. Bournon set out the statements made by the Arbitrator which he argues give rise to a finding of reasonable apprehension of bias. I will not go through each and every example provided by Mr. Bournon as not all of the statements raised are capable of his argument.

[30] Some of the statements made by the Arbitrator that Mr. Bournon relies on as demonstrating a reasonable apprehension of bias are made in the context of a back and forth between Arbitrator and counsel during submissions. The phrase, “you are going to have to convince me” or “you will have to convince me” does not demonstrate that the Arbitrator had a closed mind or had pre-determined the case. The language used does suggest that the Arbitrator had some conception of the case prior to the motion hearing, but knowing the facts and the law in advance of argument does not equal having a closed mind or having pre-determined the matter.

[31] Similarly, statements made by the Arbitrator such as “I don’t think you have to go into any of the background” or “there’s no need to make the submissions that I expect you would make to me about your relief” only demonstrate the Arbitrator’s familiarity with the facts of the case and the applicable law. Those types of statements do not give rise to a reasonable apprehension of bias.

[32] The comments made by the Arbitrator about Mr. Bournon’s evidence do not support a finding of bias. The Arbitrator is entitled to assess the evidence and make findings of fact. Commenting on the vitriol demonstrated by Mr. Bournon’s portrayal of Ms. Bournon is not inherently inappropriate nor does it give rise to a reasonable apprehension of bias.

[33] I find that there is nothing in the evidence on the motion that supports a finding that a reasonable person having heard the comments made by the Arbitrator during the motion hearings would conclude that the Arbitrator either consciously or unconsciously did not decide the matter fairly.

[34] Based on my findings, I have concluded that there is no basis to set aside the Awards under section 46 (1) of the Act due to a reasonable apprehension of bias.

[35] Mr. Bournon also argued that the Arbitrator does not have the necessary qualifications. There is no merit to this argument. Mr. McIntyre is a senior family law lawyer and has engaged in the necessary training and ongoing professional development to maintain the required competence to perform family law arbitrations. There is no basis to dismiss the Arbitrator due to a lack of the necessary qualifications.

[36] Therefore, the request for an Order removing the Arbitrator will be dismissed.

Declaration of Invalidity

[37] Section 48(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 deals with declarations of invalidity:

At any stage during or after an arbitration, on the application of a party who has not participated in the arbitration, the court may grant a declaration that the arbitration is invalid because,

(a) a party entered into the arbitration agreement while under a legal incapacity;

(b) the arbitration agreement is invalid or has ceased to exist;

(c) the subject-matter of the dispute is not capable of being the subject of arbitration under Ontario Law; or

(d) the arbitration agreement does not apply to the dispute.

[38] There is no evidence that Mr. Bournon was under a legal incapacity at the time the Mediation/Arbitration Agreement was signed. His allegation that he was coerced into signing the agreement by his then lawyer is not credible in light of all of the other evidence filed on the motion. Even if I were to have found coercion, it would not have resulted in a finding of legal incapacity.

[39] The validity of the Agreement has already been assessed by Breithaupt Smith, J. who found that all of the statutory requirements had been met. There is no basis for me to interfere with the finding of my colleague and I agree with her finding.

[40] The subject matter of the dispute is the financial issues remaining between the parties, including support and property claims. Those are capable of being the subject of arbitration under Ontario Law.

[41] Finally, the Mediation/Arbitration Agreement was entered into for the sole purpose of resolving the outstanding issues between the parties arising out of their separation. There is no basis upon which I could find that the Agreement does not apply to the dispute.

[42] Having found that none of the enumerated grounds in section 48(1) apply, there is no basis upon which I can find the Mediation/Arbitration Agreement invalid. Therefore, this request will also be dismissed.

Costs awards

[43] Costs orders of an arbitrator may be reviewed by the Court on application of a party to the arbitration under section 56(5) of the Arbitration Act, 1991, S.O. 1991, c. 17 [4].

[44] Mr. Bournon did not make any legal arguments as to the basis upon which the costs orders should be reviewed, either in his factum or during oral submissions. The statement in his factum that discussions about costs were conducted outside of the Arbitration hearing and off the record has no evidentiary basis.

[45] Having reviewed the costs decisions of the Arbitrator, there is nothing in the reasons provided that could support a conclusion that an error in law was made. Costs are discretionary and the Arbitrator was best positioned to make the determination on costs after having heard the motions. Although I note that the reasons for the costs awarded on the January 2024 motion were quite brief, particularly when compared to the lengthy and comprehensive reasons provided in 2019, I am not satisfied that the costs awarded were inappropriate in the circumstances.

[46] Consequently, the request for those awards to be nullified or invalidated will be dismissed.

Enforcement of the January 2024 Arbitral Award

[47] In her Notice of Motion, Ms. Bournon seeks leave to proceed with her request for enforcement of the Arbitral Award on an uncontested basis. During argument on the motion, counsel for Ms. Bournon submitted that I can exercise my discretion to make the order for enforcement on this motion, rather than requiring Ms. Bournon to take yet another procedural step. I agree.

[48] There is nothing in the January 2024 Arbitral Award that falls outside of the scope of the Arbitrator’s authority from the Mediation/Arbitration Agreement. Relying and confirming the finding of Breithaupt Smith J. referred to previously, I have also considered that the Agreement meets all the statutory requirements.

[49] Rule 1(8) of the Family Law Rules, O. Reg. 114/99 provides courts with discretion to make any order that may be necessary for a just determination of the matter in the event that a person fails to obey an order in the case.

[50] FLR 2(3) of the Family Law Rules, O. Reg. 114/99 addresses the manner in which family law cases are to be dealt with justly, including saving time and expense and dealing with the case in way that is appropriate to its importance and complexity.

[51] There is ample evidence that Mr. Bournon has flagrantly and willfully disobeyed arbitral awards and court orders. Other than his arguments on the leave to appeal motion, Mr. Bournon raises no valid reason why the January 2024 Arbitral Award should not be enforced by way of court order.

[52] The request for enforcement should not entail additional unnecessary expense or procedural steps, particularly in light of Mr. Bournon’s previous and ongoing disregard for court orders. There is nothing complex about the matter of whether or not a court order should issue enforcing the arbitral award and no further court appearance is necessary. I have before me all the evidence required to make a determination on the issue.

[53] Therefore, I find that there should be an order enforcing the arbitral award of January 2024.

Conclusion

[54] Mr. Bournon has not met the test for any of the relief sought in his Notice of Motion and consequently, his motion will be dismissed in its entirety.

[55] For the reasons set out above, I am satisfied that Ms. Bournon’s motion should be granted, as well as her oral request at the hearing to grant her an Order enforcing the January 2024 Arbitral Award.

[56] The parties may file costs submissions as follows:

1. The Applicant shall file her submissions on costs, no longer than three (3) pages in length, exclusive of Bill of Costs and Offer(s) to Settle, 12-point font, double-spaced, on or before September 23, 2024;

2. The Respondent shall file his responding submissions on costs, no longer than three (3) pages in length, exclusive of Bill of Costs and Offer(s) to Settle, 12-point font, double-spaced, on or before October 4, 2024;

3. Reply by the Applicant no longer than two (2) pages in length, 12-point font, double spaced, on or before October 11, 2024.

[57] Order to go on the motions:

1. The Respondent’s motion is dismissed.

2. Order to go enforcing the Arbitral Award of Arbitrator McIntyre, dated February 1, 2024.

A.D. Hilliard

Released: September 13, 2024

Notes

[1] As put so succinctly by Kraft J., “[q]uestions of law are questions about what the correct legal test is.”

[2] As Mr. Bournon is representing himself on this motion, I have considered his motion as alternatively seeking relief under section 46(1) given his arguments about a reasonable apprehension of bias in relation to the interim arbitral award and the relief sought in relation to setting aside the arbitral awards.

[3] In his decision on an application to remove an arbitrator based on a reasonable apprehension of bias, Jarvis J. reiterated the test set out by the Ontario Court of Appeal.

[4] Although the Notice of Motion sought an Order nullifying or invalidating the costs awards, as Mr. Bournon is representing himself, I have treated his request as an application to review the costs awards under section 56(6).