MILTON COURT FILE NO.: FS-19-00042740-000 DATE: 20241217 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Karen Kininsberg, Applicant/Respondent on Appeal AND: Joshua Samuel Meerapfel, Respondent/Appellant on Appeal

BEFORE: Justice E. Ria Tzimas

COUNSEL: CODAS, Stephen J. & STRATHOPOLOUS, Sarah (scodas@epsteincole.com / sstrathopolous@epsteincole.com), Counsel for the Applicant/Respondent on Appeal SHARPE, Bruno (bsharpe@galarneauassoc.com), Counsel for the Respondent/Appellant on Appeal

HEARD: In writing.

ENDORSEMENT

INTRODUCTION

[1] The Appellant, (the Respondent to the Application, hereinafter referred to as the "Appellant"), seeks leave to appeal the explanation provided in an email by the Arbitrator, Daniel Melamed, (the Arbitrator), to his Arbitration Award of December 22, 2023. He alleges that the Arbitrator erred in law in his requirement that the Appellant pay the costs of translating documents from French to English. The Appellant also contends that the Arbitrator's treatment of the language issue and the Appellant's right to litigate in French reflects a bias against the Appellant.

[2] The specific communication of July 8, 2024, states the following: "It is the responsibility of the party producing the document(s) to translate and pay for the translations. This requirement is whether the production is part of their disclosure or a request from the other side that is required to be produced. So, Mr. Meerapfel must pay for the translations. This is of course subject to reapportionment during costs submissions." At page 6 of Schedule A to the Arbitration Award of December 22, 2023, the Arbitrator noted "I require certified translation of all documents produced and utilized for any purpose in this arbitration unless otherwise agreed by counsel or Awarded by me."

[3] The Respondent to the Appeal, (the Applicant to the Application and hereinafter referred to as the "Respondent"), opposes leave and asks that the motion be dismissed with costs. She raises several arguments in support of her position:

(i) the motion for leave to appeal is out of time;

(ii) the right to appeal has been misstated;

(iii) the Appellant previously consented to providing translations of his documents;

(iv) the Arbitrator did not make any error of law; and

(v) there is no evidence of bias by the Arbitrator.

[4] For the reasons that follow, the motion for leave is dismissed with costs in favour of the Respondent.

PRELIMINARY REMARKS

[5] The specific motion for leave to appeal was filed with the court on August 26, 2024. The motion did not come to my attention until November 28, 2024 when the Appellant inquired about the status of his leave motion. In the Appellant’s materials there is reference to a possible cross-motion by the Arbitrator, with the further suggestion that the two motions be heard together.

[6] No cross-motion has been filed by the Arbitrator. The motion for leave was brought in writing. Both parties filed very comprehensive submissions, obviating the need for an oral hearing.

FACTS

[7] The history of this application is documented in my endorsement of October 15, 2024, see Kininsberg v. Meerapfel, 2024 ONSC 5712, at paras. 8-24. For the purposes of this motion, the following additional facts are relevant to my analysis and findings.

[8] The parties agree that they entered into a binding Arbitration Agreement on January 25, 2021. They appointed Mr. Daniel Melamed, (the Arbitrator), to address parenting and support issues. The Arbitration was originally scheduled to take place in October 2023. Because of difficulties with disclosure, it was adjourned to March 2024 and then again to September 2024.

[9] At the Arbitration Management Conference of July 11, 2023, the need for translated documents and the associated costs was discussed. The parties agreed that the Appellant would assume those costs. Reporting on that attendance, the Arbitrator noted the following:

The documents that are in French (or any other language) will be translated. However, I understand that many of the items have a repetitive element to the items (ie banking records). The goal is for the records to be translated efficiently, thus where the translation of one page that fully illuminates the translation of others that is all that is needed. If there are concerns, then I may be spoken to. An example would be that a series of business financial statements over the years may have the exact same set up and categories each year. Thus, only one year with the same columns may need translations. However notes in each year may be the same or different. Clearly any different notes will have to be translated. The purpose is simply to ensure that I can understand the documents being proffered as evidence.

In accordance with that directive, the Appellant's disclosure included translations of the financial statements for two of his businesses.

[10] In October 2023 the Respondent brought a motion before the Arbitrator for additional disclosure. In my review of the record before the Arbitrator, neither the need for the translation of certain documents nor the associated responsibility and costs was raised by the parties for the Adjudicator's consideration and adjudication. In his responding Affidavit, the Appellant did not object to providing translated documents. He confirmed that he had retained a professional translator and he raised no concerns over the associated costs.

[11] The Arbitrator released his Arbitration Award on the parties' disclosure requirements in his Arbitration Award of December 22, 2023. In Schedule "A", the Arbitrator identified certain disclosure that required certified translations. He was silent on the associated translation costs. In his discussion of the reasons for his conclusions, he said: "The motion before me is brought by Ms. Karen Kininsberg ("Karen") to request for disclosure pertaining to the determination of Joshua's income." The language of the documents and the translation costs were not an issue.

ANALYSIS

[12] The Appellant seeks leave to appeal the Arbitrator's explanation of July 8, 2024 concerning the costs associated with the translation of certain documents from French to English. The first question for my consideration is whether the Appellant has a right of appeal of the Arbitrator’s explanation note of July 8, 2024. If there is a right of appeal, the next question to answer is whether the requested leave should be granted.

[13] Before leave may be granted, there must be a right of appeal. On a motion for leave the court is not to doubt the correctness of the arbitrator’s award. The court must consider whether a question of law is raised that is capable of being appealed, see Aronowicz v. Aronowicz, 2007 ONSC 1885, 84 O.R. (3d) 428. This inquiry is a function of court’s gatekeeping obligations, which are especially pronounced in the proposed review of an arbitration award.

[14] The Supreme Court of Canada has stated that a narrow scope of appellate review in family matters, in general, promotes finality: Ojo v. Mason, 2013 ONSC 1240, at paras. 19-24, Van de Perre v. Edwards, 2001 SCC 60, at paras. 8-16 and Veneris v. Koh Veneris, 2018 ONSC 4164. In Petersoo v. Petersoo, 2019 ONCA 624, the Court of Appeal for Ontario, quoting another one of its decisions, Alectra Utilities Commission v. Solar Power Network, 2019 ONCA 254, at para. 35-37 noted that appeals from private arbitration decisions are neither required nor routine and courts perform a gatekeeping role in applications for leave to appeal family law awards. Court are not to interfere lightly in results of private arbitrators.”

[15] The Appellant’s motion for leave to appeal fails at this first level of inquiry. For the reasons that follow, there is no foundation to the proposed appeal and therefore there no basis for any appeal, with or without leave.

[16] To begin with, the impugned communication was not an Arbitration Award. The email communication explained the Arbitrator's reference to the need for certified translations in Schedule "A" of the Arbitration Award of December 22, 2023. As already noted, the December Award required the Appellant to undertake additional disclosure. The Arbitrator was not asked to consider whether the additional documents had to be translated or the associated costs.

[17] The Appellant did not seek leave to appeal the award. Without such an appeal there is no foundation to the leave motion before me. There is no right of appeal of an explanation note. Had the Appellant sought to appeal the December Award, leaving aside the issue of whether an interlocutory award could be appealed, if that award could be appealed, the explanation note might have sheltered under that appeal. But several months later, there is still no motion for leave to appeal the award.

[18] Second, the Arbitrator cannot be said to have erred in his answer to a question that was never put to him for his consideration and decision. The Appellant did not ask the Arbitrator to decide on whether the additional disclosure had to be translated at all, and if so, who would be responsible for those costs. In keeping with what was before the Arbitrator, the Award is silent on why certain documents had to be translated or who would pay for the associated costs. Having regard for the preceding translation practices and directions, the reference to certified translations in Schedule "A" of the Award was in keeping with them.

[19] It was not until June 28, 2024, six months following the Arbitration Award of December 22, 2023, that the translations of their disclosure and the associated costs were brought to the Arbitrator’s attention. As I read the record, the Arbitrator did not hear arguments for or against the required translations and the associated costs. Rather, he was asked to address who would pay for the costs of the translation of documents only in July of 2024 and he responded accordingly.

[20] Third, the Appellant does not have an appellate pathway for the proposed appeal, to allow for the further consideration of whether leave to appeal ought to be granted. The Appellant purports to cast a wide right of appeal, with references to Rule 38 of the Family Law Rules, O. Reg. 114/99. However, the Appellant ignores two relevant points. First, if he were to go down the path of the Rule 38 requirements, subrule 38(46) does not allow for the appeal of interlocutory awards. Only final arbitration awards may be appealed. Disclosure orders are interlocutory and procedural in nature, see Informica v. CGI Information Systems, 2009 ONCA 642, Mantella v. Mantella, 2009 ONCA 194, and Higgins v. Higgins, 2007 ONCA 663. An appeal of Arbitrator’s explanation note is therefore not permitted.

[21] The Appellant’s submissions also ignore the full parameters of the Arbitration Agreement of January 25, 2021. At paragraphs 14.1 through 14.3, the parties specifically limited an appeal from an interim or interlocutory award to only questions of law. For ease of reference the three paragraphs are reproduced below:

14.1 The parties shall have the right to review an interim/interlocutory Arbitration Award in accordance with s.46 of the Arbitration Act, 1991, and shall have the right to appeal an interim/ interlocutory Award on a question of law, with leave, as provided by s.45(1) of the Arbitration Act, 1991 and the Family Law Statute Amendment Act.

14.2 The parties agree to limit their appeal routes from interim / interlocutory Awards due to the nature of the arbitration process and have specifically considered and rejected the more expansive appeal routes available to them pursuant to sections 45 (2) and (3).

14.3 For the purposes of this provision, the test for leave to appeal from an interim / interlocutory Arbitration Award shall be as set out in section 45(1) of the Arbitration Act, 1991, namely that leave to appeal on a question of law shall only be granted if the court 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.

[22] The Appellant's framing of the question of "who pays for translations where both parties are bilingual", reflects an attempt to present the issue as a question of law for the purposes of obtaining leave. But that framing suggests a deliberate attempt to conceal the fact that no such question of law was put before the Arbitrator.

[23] A question of law and an error of law is one where a motion judge or an arbitrator, gets the law wrong. Establishing an error of law is a high threshold. Courts have cautioned judges to be careful about determining that issue is an error of law. Especially where parties have intentionally restricted their appeal rights by way of an arbitration agreement, courts must be careful to ensure that the proposed ground of appeal is properly characterized and does not effectively widen the terms of the arbitration agreement, see Housen v. Nicolaisen, 2002 SCC 33, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, and Haas v. Gunasekaram, 2016 ONCA 744.

[24] Leaving aside for a moment my finding that this question was never put to the Arbitrator and therefore he could not have made an error over a question that was not put to him, the errors attributed to the Arbitrator are not error(s) of law. The Appellant does not suggest that the Arbitrator got the law wrong. There were no arguments before the Arbitrator that the Appellant, as a francophone, and therefore, as of right, did not have to pay for the translation of the French documents. Instead, the Appellant complains that the Arbitrator failed to take into account his inability to pay for the translations and that his ruling exceeded the limits of reasonableness. These suggested errors are quintessentially factual errors. The furthest one could take the Appellant’s submissions on the type of error by the Arbitrator’s findings would be to describe it as an error of mixed fact and law. The parties' Arbitration Agreement expressly prohibits an appeal for an error of mixed fact and law. There is therefore no pathway to an appeal for leave to be granted.

[25] Fourth, insofar as the Appellant tries to leverage the requirements of the Courts of Justice Act, R.S.O. 1990, c. C.43 as a possible pathway to an appeal, the CJA applies to all acts that affect or relate to the public processes brought before the courts and the administration of justice. In contrast to a proceeding before the courts, an arbitration is a private process rooted in statute and governed by the terms of the applicable Arbitration Agreement.

[26] In the context of an arbitration award, the requirements of the CJA come into play only if the parties seek to appeal an arbitral award within the courts. The appeal of an award moves it from the private to the public sphere of the courts. Once in appellate territory, the parties are no longer free to design the adjudication process and must follow the requirements of the CJA, and in the context of family law awards, the Family Law Rules. If the CJA were to trump the terms of an arbitration agreement, it would undermine the very purpose of designing a private dispute resolution or adjudication process.

[27] Consistent with the freedom of the parties to design their own process, the parties in this case signed an Arbitration in English, they selected an Arbitrator who does not speak French, they retained English-speaking counsel and English-speaking accountants and experts, and for four years they conducted the arbitration process in English. The parties could have, selected a bilingual arbitrator, turned their minds to developing a bilingual process, and prescribed terms of reference for their engagement with documents, which they would have known were in French. They did none of that. To superimpose the requirements of the CJA onto a private agreement would effectively interfere with the arbitration process.

[28] But even if the requirements of the CJA were somehow, referentially incorporated into the parties' Arbitration Agreement, s.126 of the CJA, which speaks to the use of French and the translation of documents, translation obligations are limited to the translation of pleadings or other documents filed by a party, and a process issued in or giving rise to the proceeding. There is nothing in s.126 that speaks to the cost obligations associated with the translation of disclosure documents.

[29] In the context of a public process, such as the courts, it makes sense that the court would have to provide for the translation of the pleadings or process documents. But in the context of a private process, there is no analogous obligation on the arbitrator to pay for translation costs. Absent directions on this subject within an Arbitration Agreement, the subject of costs would necessarily fall on one or both of the parties to the arbitration, with the possibility that they be further reconciled.

[30] These observations bring me to a further reason for which the Appellant's leave motion is flawed. Even if the Appellant had asked the Arbitrator to address a question of law, for leave to appeal to be granted, the Appellant would have to satisfy the requirements of 14.3 of the Arbitration Agreement, which effectively incorporate the requirements of s.45(1)(a) of the Arbitration Act, 1991.

[31] The first requirement touches on the importance to the parties of the matters at stake in the arbitration and whether they justify an appeal. The costs of translation of the Appellant's documents could not possibly be determinative of the matters at stake in the arbitration, namely, parenting and support obligations. Disclosure is the real matter in dispute. The Arbitrator identified the correct legal test for disclosure. He considered the principles of relevance and proportionality and explained his reasons for the more expansive disclosure obligations that he ordered.

[32] As for the costs of translation, although certified translations might increase those costs, that requirement must be read together with the Arbitrator’s previous direction in July of 2023, that spoke to selective translations and related efficiencies. Nothing in the record suggests that the Appellant sought to clarify the distinction between certified translations or otherwise.

[33] But perhaps the most important consideration in this overall discourse is the observation that the Arbitrator left the door wide open for the translation costs to be reviewed in a cost award at some point in the future. It is troubling that the Applicant would obscure that last detail by suggesting that he would be the one to be solely responsible for those costs, when that is clearly not the case.

[34] Inasmuch as the Arbitrator required the Appellant to front the costs of the translation with the prospect that there may be a future costs reconciliation, that decision was entirely consistent with the general recognition that disclosure costs are typically borne by the party with the obligation to disclose his or her documents. Such costs may be recovered as part of an award of costs, as the case may be, see Ciuff v. Gales, 2014 ONSC 4756, and Endale v. Parker, 2022 ONSC 2008. Courts have also concluded that document disclosure obligations include document translation, even when both parties understood the language of the documents to be translated, see for example, J.A. v. M.K., 2022 ONSC 3632 at para. 48, affirmed in Aslezova v. Khanine, 2023 ONCA 153. In short, the translation costs associated with the Appellant’s disclosure obligations pale in comparison to the issues at stake in the arbitration.

[35] The second requirement of s.45(1) asks whether the determination of the question of law at issue will significantly affect the rights of the parties. Although there is no question of law at issue, for the sake of completeness, the Appellant's bald statement that his obligations to pay for the costs of translation would affect significantly his rights in dispute is both incredible and insufficient to satisfy this test. Against the substantial costs associated with four years of litigation to date, $100,000 or so in translation costs is a small fraction of the parties’ overall costs. There is simply no foundation to the Appellant’s suggestion that the translation costs would have any impact on the parties’ rights.

[36] In the result, even if there were a pathway to an appeal, the Appellant cannot satisfy the requirements of s.45(1)(a), as referentially incorporated in the parties' Arbitration Agreement, to allow for leave to appeal the Arbitrator's email explanation to be granted.

[37] Finally, given the Appellant's allegations of bias by the Arbitrator, that allegation is without any foundation and represents instead one more attempt to discredit the Arbitrator and the Arbitration process. There is nothing in the record to suggest that the Arbitrator treated the parties unequally or unfairly, or showed bias. While I appreciate that describing one of Canada's official languages as "foreign" may have been unfortunate, I come back to the overriding finding that the parties, which means the Appellant and the Respondent, selected an Arbitrator who did not speak French. Against that reality, it is truly rich on the Appellant's part to be critical of the Arbitrator.

CONCLUSION

[38] In the result, the motion for leave to appeal the Arbitrator's email explanation concerning the translation costs associated with the Appellant's disclosure obligations is dismissed with costs in favour of the Respondent.

[39] Unless the parties can agree on costs, the Respondent shall have until January 6, 2025 to make costs submissions and the Appellant shall have until January 20, 2025. The submissions shall be limited to two pages, double-spaced, in addition to the associated bill of costs from the Respondent.

Justice E. Ria Tzimas Date: December 17, 2024