Court File and Parties
COURT FILE NO.: FS-21-25072 DATE: 20241011 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kavita Maharajh, Applicant AND: Miguel Mathura, Respondent
BEFORE: Mathen J.
COUNSEL: B. Nussbaum, for the Applicant No one appearing for the Respondent
HEARD: October 11, 2024
Endorsement
[1] The Applicant, Ms. Maharajh (“The Applicant”, “Ms. Maharajh”), brought a motion on October 10 to remove an Arbitrator previously retained by the parties under the Arbitration Act, 1991, S.O. 1991, c. 17 (“Arbitration Act”). [By Order of this Court, the Arbitrator received notice of this Motion but is not a party.]
[2] The Respondent, Mr. Mathura (“The Respondent”, “Mr. Mathura”), is currently representing himself. Counsel for Ms. Maharajh confirmed that Mr. Mathura had served no materials for this motion. Mr. Mathura filed nothing with the Court and did not appear.
Background
[3] The parties married on December 29, 2011, and separated on February 22, 2021. There are three children of the marriage under the age of 12.
[4] Ms. Maharajh alleges numerous altercations, some violent. A no contact order has been in place since August 10, 2023.
[5] At a Trial Management Conference on October 16, 2023, a five day-trial was set for March 18, 2024. As the possibility of mediation/arbitration was also canvassed, the endorsement stated that any mediation/arbitration was to be scheduled by the end of 2023.
[6] After numerous delays largely by Mr. Mathura, the parties agreed on an Arbitrator, Judith Nicoll (“the Arbitrator”). The Arbitrator gave dates for January 2024. Timelines were put in place for the parties to engage mediation-arbitration booking on March 7 or 8. The Med/Arb agreement was signed by the parties and the Arbitrator on or around February 15, 2024.
[7] Mediation occurred on March 8 and was unsuccessful. As a precondition to moving to arbitration, the Arbitrator directed the parties to exchange substantive offers to settle. Ms. Maharajh did so on March 19, 2024. To date, Mr. Mathura has not.
[8] The arbitration was never scheduled. Ms. Maharajh deposes that her counsel reached out to the Arbitrator for 5-day arbitration dates on April 2, 2024. Mr. Mathura’s then agent-counsel stated that he wanted to bring a motion for release of proceeds and a VOC report. Ms. Maharajh deposes that the Arbitrator offered to join a conference call to discuss but did not otherwise respond. By May 2024, the two counsel discussed withdrawing from the arbitration. Ms. Maharajh deposes that she did not hear from the Arbitrator for almost the entire month of April.
[9] Mr. Mathura never brought the motions. On May 15, 2024, he notified Ms. Maharajh that he was no longer represented by counsel. Mr. Mathura indicated he was still going ahead with Med/Arb though he found it “odd” that the Arbitrator had not responded to Ms. Maharajh’s communications.
[10] Ms. Maharajh deposes that Mr. Mathura has hindered the Arbitration process and, through delay, is trying to frustrate the resolution of this matter. Ms. Maharajh indicates that she was already losing confidence in the Arbitrator for failing to respond to what Ms. Maharajh viewed as clear “red flags” in Mr. Mathura’s behaviour and communications to and about Ms. Maharajh and her female counsel, which the Arbitrator should have observed.
[11] Ms. Maharajh lists numerous unsuccessful attempts, through counsel, to contact the Arbitrator in April and May 2024.
[12] At a To Be Spoken To appearance on July 2, 2024, the Applicant received leave for this motion. A telephone call from counsel to the Arbitrator on July 18 received no response.
[13] On or about August 12, 2024, Applicant’s counsel wrote to the Arbitrator advising that “Ms. Maharajh has expressed concerns with moving this matter forward in a timely manner, following mediation”. Counsel noted six separate efforts made to contact the Arbitrator between April 2 and July 18, 2024. The Arbitrator was advised that Ms. Maharajh wished “to return to court on this matter due to the lack of response, as well as the costs estimated for arbitration.” Counsel continued:
Ms. Maharajh is the one bearing the prejudice to this delay; she has outstanding claims for equalization, post-separation adjustment expenses, ongoing and retroactive child support & section 7 expenses. She is in desperate need of interim relief. The initial trial was scheduled for March 2024 and a decision would have likely been rendered by now. In accordance with your Retainer Agreement, both parties must consent to withdraw. The other alternative is such that you can withdraw from being their arbitrator and we are seeking your authority to do so. The third alternative, is for the Courts to make an Order removing you as the arbitrator. We have been provided with leave to bring this Motion and are hoping that we would not need to do so. At this time, it would only serve to heighten the financial costs and emotional distress that Ms. Maharajh is experiencing. We trust you understand Ms. Maharajh’s position and welcome your feedback. [emphasis added]
[14] Only after receiving the above-quoted letter did the Arbitrator provide available dates by email. Ms. Maharajh deposes that the Arbitrator did not indicate a reason for the delay.
[15] As a result, Ms. Maharajh lost all trust in the Arbitrator and her counsel asked that the Arbitrator recuse herself. On August 14, 2024, the Arbitrator wrote to both parties seeking their consent to withdraw. After receiving no response from Mr. Mathura, she indicated she would withdraw if she did not hear back by August 23. Mr. Mathura wrote back on August 23 that he does not consent.
[16] Ms. Maharajh notes that the resolution of a matter originally set for trial in March has been subject to inexplicable delay. She deposes that issues have been raised post-mediation all of which are not before this Court nor the Arbitrator because there is no formal next step – no arbitration booked, nor are the parties able to return to court with the contractual obligation outlined in the Med/Arb Agreement. She argues that the ongoing delay is highly prejudicial to her.
Analysis
[17] Under section 15(1) of the Arbitration Act, 1991, S.O. 1991, c. 17:
The court may remove an arbitrator on a party’s application under subsection 13 (6) (challenge) or may do so on a party’s application if the arbitrator becomes unable to perform his or her functions, commits a corrupt or fraudulent act, delays unduly in conducting the arbitration or does not conduct it in accordance with section 19 (equality and fairness) [emphasis added].
[18] The Arbitration Act thus gives this Court the jurisdiction to remove an arbitrator for undue delay.
[19] In considering when delay is “undue”, this Court has stated that mere delay is insufficient to destroy the arbitration. Instead, “[a] party must show more, in the form of some prejudice or actual unfairness that fundamentally undermines the agreement to arbitrate.”: Rosenberg v. Minster, 2014 ONSC 845 at paragraph 58.
[20] I am satisfied on a balance of probabilities that (a) the Arbitrator has unduly delayed the parties’ arbitration; and (b) this has caused prejudice and unfairness to Ms. Maharajh that fundamentally undermines the agreement to arbitrate.
[21] While some of the delay is due to the Respondent, during significant periods the Arbitrator did not respond in a timely manner to counsel’s outreach: the three weeks following counsel’s letter/email of April 29; and the period between May 22 and August 14. I accept counsel’s submission that the Arbitrator never explained her failure to respond.
[22] The Respondent became self-represented in May and has not engaged productively in these proceedings since then.
[23] As a result, the Applicant has lost the opportunity to have this matter settled by way of a trial. Had the initial trial set for March 18 proceeded, the parties likely would have had a decision by now. This itself has caused the Applicant significant prejudice and, I find, is fundamentally unfair.
[24] I am satisfied that the undue delay by the Arbitrator has been prejudicial and fundamentally unfair to Ms. Maharajh. In consequence, Ms. Maharajh is entitled to have the Arbitrator removed by this Court.
[25] I am further satisfied that it is not productive for the Court to select a new Arbitrator. The record shows clearly that the parties cannot work cooperatively to benefit from the “less formal, more expeditious and therefore faster” arbitral process: Rosenberg, supra. The Respondent’s failure to engage in any way in this proceeding shows the futility of continuing with arbitration. Formal court proceedings are required.
[26] Under Rule 1(8) of the Family Law Rules, if a person fails to obey an order, the court may respond by making “any order that it considers necessary for a just determination of the matter.”
[27] I am satisfied on a balance of probabilities that the Respondent failed to comply with timelines set out in previous endorsements regarding the arbitration process. I am further satisfied on a balance of probabilities that the Respondent has failed to act cooperatively and productively throughout these proceedings. His failure to respond to this motion is the latest example.
[28] I am therefore satisfied that the Respondent’s behaviour justifies my exercise of jurisdiction under Rule 1(8) to order the parties to return to the trial management process.
[29] The Applicant’s motion is granted. An order shall issue removing the Arbitrator and, in consequence, terminating the Mediation/Arbitration Agreement dated February 2024. The parties shall return to the trial management process. A trial management conference will be set on the next available date.
[30] Ms. Maharajh seeks full indemnity costs of $4288.91. Mr. Mathura filed no materials and did not appear, making this motion utterly unnecessary. He shall pay full indemnity costs.
Order
[31] In conclusion, I make the following order:
a. Ms. Judith Nicoll shall be removed as the arbitrator for the Applicant, Kavita Maharajh and the Respondent, Miguel Mathura, in accordance with section 15(1) of the Arbitration Act, 1991, S.O. 1991, c. 17.
b. The Mediation/Arbitration Agreement of Ms. Judith Nicoll, the Applicant, and the Respondent dated February 2024 shall be terminated.
c. The Applicant and Respondent shall return to a trial management conference and a trial shall be scheduled on the next available trial sittings.
d. The Respondent shall pay to the Applicant costs of $4288.91 inclusive of disbursements and HST.
e. If required, counsel may forward a Form 25 order to Linda.Bunoza@ontario.ca for my signature.