The Joseph Lebovic Charitable Foundation et al. v. Jewish Foundation of Greater Toronto et al.

Court File No.: CV-23-00705099 Date: 2025-09-08 Ontario Superior Court of Justice

Between:

The Joseph Lebovic Charitable Foundation, The Dr. Wolf Lebovic Charitable Foundation, Wolf Lebovic in his capacity as Estate Trustee for the Estate of Joseph Lebovic, and Wolf Lebovic Applicants

– and –

Jewish Foundation of Greater Toronto and Joseph and Wolf Lebovic Jewish Community Campus Respondents

Counsel:

Krista Chaytor and Lia Boritz, for the Applicants

Matthew Gottlieb, Andrew Winton, and Xin Lu (Crystal) Li for the Respondents

Heard: March 20, 2025

Before: Koehnen J.

Reasons for Judgment

[1] These reasons address three applications arising out of four sets of reasons issued by the Honourable Colin L. Campbell sitting as arbitrator (“the Arbitrator”). Those reasons are: a decision on jurisdiction dated March 15, 2023; the main arbitral award dated July 27, 2023; the damages award dated February 28, 2024; and a cost award dated March 12, 2024.

[2] The Applicants, whom I will refer to as “the Lebovics”, bring applications under sections 45 and 46 of the Arbitration Act, 1991[^1] (the “Arbitration Act”) to set aside or appeal these reasons. The application under s. 45 is for leave to appeal from the decisions of the Arbitrator and for an order setting aside those decisions. The application under s. 46 is to set aside the decisions on the grounds that they are beyond the Arbitrator’s jurisdiction; the composition of the arbitral tribunal was not in accordance with the arbitration agreement; and the Lebovics were not treated equally and fairly, and were not given an opportunity to present a case or respond to the Respondents’ case.

[3] The Respondents, whom the parties have referred to as the UJA, bring their own application to recognize and enforce the decisions of the Arbitrator.

[4] For the reasons set out in greater detail below, I dismiss the Lebovics’ applications and grant the UJA’s application to recognize and enforce the decisions of the Arbitrator.

[5] The Lebovics submit that the Arbitrator made 11 errors which warrant setting aside the reasons or reversing them on appeal. In most cases, the allegations of error are based on a selective reading of isolated passages of the Arbitrator’s reasons that are taken out of context. A reading of the passages in the context of the full decision reveals no error or impropriety of any sort.

Background Facts

[6] On May 9, 2005, the Lebovics and UJA entered into a Donor Agreement pursuant to which the Lebovics agreed to donate $20 million to the UJA. In recognition of that gift, the UJA would name its Vaughan, Ontario campus, the Joseph and Wolf Lebovic Campus (the “Lebovic Campus”).

[7] The first $15 million of the donation was to be paid in 8 annual instalments. The remaining $5 million was to be paid in five equal annual installments beginning in the year after the last installment of the $15 million became due.

[8] The Donor Agreement made the naming of the Lebovic Campus conditional on the Lebovics making the donations in a timely manner and provided that if a payment was not made within 6 months of its due date, the UJA would, in its absolute discretion, have the right to rename the campus.

[9] The Donor Agreement also contained a dispute resolution clause which referred any dispute that “arises out of or in connection with this Agreement” to arbitration.

[10] The Lebovics paid the first $15 million but did not pay the final $5 million because they wanted assurance that debt financing on the Lebovic the campus would be retired as soon as possible to eliminate any risk to their naming rights and because they wanted to be involved in approving educational programming associated with the Lebovic Campus.

[11] As a result of the dispute, the UJA commenced an arbitration in 2015 (the “First Arbitration”). The Honourable Colin L. Campbell was appointed as arbitrator for the First Arbitration.

[12] The First Arbitration was resolved on consent and resulted in a Consent Order dated August 5, 2015. The most relevant paragraph of that order was paragraph 17 which required the UJA to deliver a proposal for educational programming to the Lebovics within certain time parameters. If the Lebovics agreed to the programming proposal, they were obliged to pay $3 million of the remaining $5 million within 15 days of their agreement, with the balance being paid in annual installments of $1 million in each of 2016 and 2017. If the Lebovics did not approve the programming proposal within 30 days of delivery, the dispute was to be referred to binding arbitration before the Arbitrator.

[13] The UJA provided a proposal for educational programming, comments were exchanged but the Lebovics did not pay any of the remaining $5 million owing. In response, the UJA commenced a second arbitration in April 2016. Further negotiations ensued, the 2016 arbitration did not proceed, but the Lebovics did not pay any of the remaining $5 million balance owing.

[14] In January 2021, what the parties referred to as a consortium loan that the UJA had secured against the Lebovic Campus matured. It had an outstanding balance of approximately $17.1 million. The UJA wanted to refinance the consortium loan with the Toronto-Dominion Bank (“TD”) at a more favourable rate of 2.10% fixed, for ten years.

[15] The wrinkle with the refinancing was that the Consent Order had been registered on title as it was required to be according to its terms. TD required the Lebovics to subordinate the Consent Order to the refinancing, just as the Consent Order was subordinate to the existing consortium loan.

[16] Coincidentally, the Land Registry Office then notified the parties that it intended to delete the Consent Order from title because it was improperly registered. It was then suggested that the Consent Order registered on title be replaced with an agreement registered on title under s. 71 of the Land Titles Act (a “Section 71 Agreement”). TD agreed with that proposal, but still wanted the Section 71 Agreement to be subordinated to its refinancing just as the Consent Order was subordinated to the consortium loan.

[17] The Arbitrator found that Joseph Lebovic agreed to the Section 71 Agreement, but then reneged because of his unfounded suspicion that the UJA had prompted the Land Registry Office’s investigation into the Consent Order.

[18] In April 2021, the UJA commenced the arbitration that is the subject of the applications now before the court.

[19] In reasons dated July 27, 2023 the Arbitrator found in favour of the UJA and issued a declaration that the UJA was entitled to revoke the Applicant’s naming rights pursuant to section 6.4 of the Donor Agreement.

Issue 1: Jurisdiction

[20] Pursuant to s. 46 (1) 3 of the Arbitration Act, the court may set aside an award if, among other things:

3. The award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.

[21] The standard of review under this provision is correctness.[^2]

[22] The Lebovics submit that the 2021 Arbitration was initiated pursuant to sections 22, 23, and 24 of the Consent Order, not under the Donor Agreement. Accordingly, they argue that the Arbitrator’s jurisdiction was confined to matters arising under the Consent Order and to remedies expressly provided therein. They submit that, while the Arbitrator could determine whether section 17 of the Consent Order had been breached, he lacked authority to address renaming rights, because that remedy was available only under section 6.4 of the Donor Agreement.

[23] I do not accept the Lebovics’ submissions in this regard.

[24] The style of cause in the UJA’s notice of demand for arbitration is preceded by the following preamble:

IN THE MATTER OF an Arbitration pursuant to the Order of the Honourable Colin L. Campbell, Q.C. dated August 5, 2015

AND IN THE MATTER OF the Donation and Charitable Trust Agreement dated May 9, 2005

AND IN THE MATTER OF the Arbitration Act, 1991, S.O. 1991, c.17

The Arbitration was therefore commenced pursuant to, among other things, the Donor Agreement.

[25] The Lebovics responded to the notice of arbitration with their own Notice of Demand for Arbitration bearing a similar preamble to the style of cause which, among other things, referred to the arbitration as being:

IN THE MATTER OF an Arbitration pursuant to the Donation and Charitable Trust Agreement dated May 9, 2005

[26] The first paragraph of the Lebovics Notice of Demand for Arbitration states:

TAKE NOTICE that the [Lebovics] demand an arbitration pursuant to paragraph 15.1 of the Donor Agreement dated May 9, 2005, the Letter Agreement dated March 5, 2013, and paragraphs 10, 11, 12, 14, 15, 17, 18, 20, 21 and 22 of the Arbitration Award of the Honourable Colin L. Campbell Q.C. dated August 5, 2015, and hereby refer to arbitration to commence on September 29, 2022, the issues set out in the Amended Response and Counterclaim of the [Lebovics] dated July 29, 2022.[^3] (emphasis added)

[27] Moreover, the Lebovics, in their Notice of Demand for Arbitration asked the Arbitrator for, among other things, a declaration that:

…the UJA is not entitled to rename, is forever barred from removing the Lebovic name from the Lebovic Campus or renaming the Lebovic Campus…[^4]

[28] In other words, the Lebovics expressly acknowledged the Arbitrator’s power to address the renaming rights by asking him to grant them relief in that regard.

[29] After submitting these documents, the Lebovics had a change of mind and brought a jurisdiction motion before the Arbitrator which was heard on October 24, 2022. The Arbitrator released reasons on the jurisdiction issue on March 15, 2023 in which he found that he had jurisdiction to proceed.

[30] The Lebovics then applied to this court to review the jurisdiction ruling. In reasons dated August 8, 2024 Justice Akbarali dismissed the application and confirmed the Arbitrator’s ruling on jurisdiction.

[31] On August 22, 2024, the Lebovics served a Notice of Motion purporting to seek leave to appeal Justice Akbarali’s decision to the Court of Appeal. Counsel for the UJA advised counsel for the Lebovics of a Court of Appeal decision from earlier that year in which the Court of Appeal confirmed that it had no jurisdiction to hear an appeal from an order of this court dealing with an arbitrator’s jurisdiction under 17(8) of the Arbitration Act. The Lebovics nevertheless proceeded with their motion for leave to appeal. On December 23, 2024, the Court of Appeal quashed the Lebovics’ motion for leave to appeal for want of jurisdiction.

[32] The Lebovics now raise the same issues in this application as they did before Justice Akbarali and the Court of Appeal. Quite apart from the merits of the jurisdictional challenge, it must be dismissed based on principles of res judicata, issue estoppel, and abuse of process because: (i) The issue raised is the same as the one decided by Justice Akbarali; (ii) Justice Akbarali’s decision was final; and (iii) The parties to both proceedings are the same.[^5]

[33] Before me, the Lebovics say that the Arbitrator had authority to determine whether they breached paragraph 17 of the Consent Order, but that the Arbitrator could not provide a remedy for such breach by declaring that the UJA could rename the Campus. Any such claim for a remedy would have to be brought in a separate arbitration under the Donor Agreement. Justice Akbarali disposed of that very argument as follows:

The ridiculousness of the position is placed in stark relief when one notes that the result of Lebovic’s argument, on the facts of this case, would be that the Hon. C. L. Campbell would have jurisdiction to deal with certain issues between the parties, but another arbitration would have to be convened to deal with related issues, even though they are mentioned in the Consent Order, because although they are connected to the subject matter of the Consent Order, they are not closely connected enough (according to Lebovic). Inevitably, two parallel arbitrations would be addressing the same facts, leading to delay, excess costs, confusion, and the potential for inconsistent findings: PCL Constructors v. Johnson Controls, 2022 ONSC 1642, at para. 41.[^6]

[34] Quite apart from issues of res judicata, issue estoppel, and abuse of process, the jurisdictional challenge also fails on the merits.

[35] The Consent Order refers “any disputes regarding the matters referred to in this Order” to the Arbitrator. The Lebovics agree that their failure to pay the $5 million was properly before the Arbitrator. If an arbitrator has jurisdiction to determine an issue, they also have jurisdiction to award a remedy unless the parties stipulate otherwise.

[36] As the Supreme Court of Canada has held:

In order to understand the scope of the arbitrator’s mandate, a purely textual analysis of the communications between the parties is not sufficient. The arbitrator’s mandate must not be interpreted restrictively by limiting it to what is expressly set out in the arbitration agreement. The mandate also includes everything that is closely connected with that agreement, or, in other words, questions that have […] “a connection with the question to be disposed of by the arbitrators with the dispute submitted to them” [Citation omitted].[^7]

Remedy is closely connected with a breach of an agreement.

[37] In PCL Constructors v. Johnson Controls,[^8] the applicant argued that the arbitrator’s jurisdiction was confined to determining whether a defect qualified as a “construction defect,” and did not extend to granting consequential relief such as damages. This Court rejected that position and, citing Desputeaux, held that an arbitration clause implicitly authorizes the award of damages unless the parties have expressed a contrary intention.[^9]

[38] As a result of the foregoing, I dismiss the Lebovics’ challenge to the Arbitrator’s jurisdiction.

Issue 2: Composition of Arbitral Tribunal

[39] Section 46 (1) of the Arbitration Act allows the court to aside an award if, among other grounds:

4. The composition of the arbitral tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with this Act.

[40] The Lebovics submit that the tribunal was improperly constituted because paragraph 24 of the Consent Order limits the Arbitrator’s authority to disputes expressly referenced therein. They argue that the Consent Order does not supersede the dispute resolution provisions of s. 15.1 of the Donor Agreement which the Lebovics say calls for arbitration before a three-member panel. I do not agree.

[41] First, this issue is subsumed within the broader question of jurisdiction addressed above and is therefore moot, by operation of res judicata, issue estoppel, and abuse of process, in light of the decisions of Justice Akbarali and the Court of Appeal.

[42] The Arbitrator specifically referred to the issue of one arbitrator versus three arbitrators in his reasons dismissing the jurisdiction motion and accepted jurisdiction as a single arbitrator.

[43] Although Justice Akbarali did not specifically refer to the issue of one arbitrator as opposed to three arbitrators, her decision implicitly accepts that the Arbitrator was entitled to proceed as a single arbitrator.[^10]

[44] Second, paragraph 15.1 of the Donor Agreement does not require a three-member arbitration panel. Rather, it sets out a procedure whereby the initiating party appoints a single arbitrator, the responding party may appoint a second, and the two appointed arbitrators may then select a third. However, if the responding party fails to appoint an arbitrator within seven days of receiving notice of the first appointment, the arbitration proceeds before a single arbitrator. The Lebovics did not appoint a second arbitrator within the prescribed timeframe following notice of the 2021 arbitration. To the contrary, as previously noted, they filed a counterclaim in relation to the naming rights and asked that it be adjudicated by the sole arbitrator.

Issue 3: Breach of Procedural Fairness

[45] Section 46(1)6 of the Arbitration Act, 1991 provides that the court may set aside an arbitral award if, among other reasons,

6. The applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party’s case, or was not given proper notice of the arbitration or of the appointment of an arbitrator.

[46] The Lebovics submit that this provision comes into play because, in his Damages Award, the Arbitrator awarded damages to the UJA of $219,370.90 without any supporting evidence.

[47] The damages arise out of the Lebovics refusal to approve the TD refinancing referred to earlier in these reasons. The damages award has two components. The first arises because the consortium loan had to be extended for a further six months between January 26, 2021 and June 30, 2021 because of the Lebovics’ refusal to approve the refinancing. UJA claimed damages equal to the difference between the TD interest rate of 2.17% that it ultimately paid on the refinancing, and the interest rate on the consortium loan of prime +1%. The second component to the damages award arises because by the time UJA was able to lock in refinancing with TD, the interest rate had increased from 2.1% to 2.17% on a debt of approximately $17.1 million for a fixed term of 10 years.

[48] The Lebovics submit that the Arbitrator made the award based on a spreadsheet filed by the UJA, which spreadsheet was not in evidence, did not refer back to any evidence, did not include any backup documentation in support of the calculations, and in respect of which the Lebovics had no ability to cross-examine.

[49] The Lebovics focus on paragraph 4 of the Damages Award which states:

In the absence of any other evidence from the [Lebovics] I am not prepared to conclude that the [UJA ] should be denied recovery for lack of precise proof.

The Lebovics submit that the “precise proof” based on evidence in the record is exactly what is required to ground a damages award.

[50] In my view, there is no merit to the Lebovics argument in this regard.

[51] The Damages Award is based on the same evidence as was led in relation to the main award. The Arbitrator made a finding of fact in the Main Award that Joe Lebovic initially consented to and then unreasonably refused to allow the TD refinancing to proceed. That finding grounds the Lebovics’ liability for damages.

[52] The Arbitrator did not treat the spreadsheet provided by the UJA as evidence. The spreadsheet was merely an arithmetic calculation that UJA gave the Arbitrator as an aid to argument or an aide memoire.

[53] The arithmetic calculation for the additional cost of the TD loan due to the increase in the interest rate from 2.1% to 2.17% was based on specific documentary and oral evidence provided by Mr. Miller and Mr. Draper during the arbitration hearing. In his examination in chief, Mr. Miller estimated that increased interest would cost UJA approximately $100,000. The spreadsheet calculated the specific amount at $104,717.77.

[54] The second calculation on the spreadsheet sets out the cost of paying interest on the consortium loan of prime +1% and the TD refinancing rate of 2.17% for the six months between January 26, 2021 and June 30, 2021. The spreadsheet calculates that amount at $114,661.13.

[55] The Lebovics argue that there was no evidence of what the prime rate was.

[56] The Arbitrator specifically referred to the Lebovics objections in the Damages Award and concluded that they would not make a material difference to the calculation of the UJA’s damage claim and found that, in the absence of any other evidence from the Lebovics, he was not prepared to deny recovery “for lack of precise proof.”[^11]

[57] Those comments must be understood in their proper context. There was no issue about the existence of the consortium loan or that the amount outstanding on it was approximately $17,123,922. Recall that the Lebovics refused to pay the remaining $5 million because they believed there was too much debt on the Lebovic Campus. They were therefore very much alive to the issue of debt.

[58] The prime rate on which the consortium loan was based can be easily calculated. The spreadsheet shows interest for approximately six months of $270,295.49. The approximate annual rate is double that or $540,591. That constitutes 3.2% of the consortium loan balance of $17,123,922. If 3.2% constitutes prime +1%, then prime equals 2.2%. Given that the attractive rate offered by TD was 2.1%, the idea of prime being 2.2% is not in any way unrealistic.

[59] In paragraph 7 of his damages award, the arbitrator stated:

I am not satisfied that the issues raised by the [Lebovics] in paragraphs 8, 9 and 10 of their written submissions, even if accepted, would make a material difference to the calculation in schedule A of the UJA’s submissions.

[60] The consortium loan stood at $17,123,922. A difference of .1% interest on that amount comes to $17,123.92 annually. The arbitrator was concerned with interest for the six-month period which would reduce the monetary equivalent of .1% to $8,561.96. Even if the interest differential were 10 times larger, it would still involve a number that is smaller than the cost of additional litigation to arrive at “precise proof”.

[61] The Arbitrator concluded his Damages Award at paragraph eight by saying:

Given the time and cost associated with this proceeding including the frustrated expectation arising from the UJA’s efforts to accommodate the concerns of the late Joseph Lebovic, I am satisfied the damage claim in the sum of $219,378.90 is reasonable and so award.

[62] The Arbitrator took a practical, proportionate approach to the issue of damages. He was both entitled to and correct in doing so. Doing so did not amount to unequal or unfair treatment.

[63] The Lebovics clearly had an opportunity to present a case and respond to the issue of damages. They say they were not required to respond because the UJA introduced no evidence and the burden of proof lay on the UJA. As noted, however, there was an evidentiary basis for the arbitrator to make the award. The Lebovics made a tactical call about whether the evidence was sufficient to meet UJA’s burden. Not calling evidence because of an assumption that one’s opponent has not met its burden of proof is a risky decision. The adjudicator may not agree with your assessment of the burden of proof. The Lebovics simply made the wrong call. That does not give them the right to set aside the award.

Leave to Appeal and Right of Appeal

[64] The remaining issues all involve appeals from the Arbitrator’s decisions.

[65] Section 45(1) of the Arbitration Act provides:

45 (1) If the arbitration agreement does not deal with appeals on questions of law, 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.

[66] The first question to address under s. 45 of the Arbitration Act is whether the arbitration agreement deals with appeals on questions of law. The Lebovics submit that the consent order governs and that it does not deal with appeals on questions of law. The UJA says the Donor Agreement governs and precludes appeals.

[67] In taking jurisdiction, the Arbitrator referred specifically to section 15.1 of the Donor Agreement. He referred to his appointment in the 2021 arbitration as part of the continuity of process of him having been appointed as an arbitrator under the Donor Agreement continuation and that the issues that the Lebovics have raised in their counterclaim in the 2021 arbitration were issues that arose out of the Donor Agreement.

[68] Although Justice Akbarali accepted the continuity approach,[^12] she indicated in paragraph 38 of her reasons that it was not necessary for her to determine whether the Arbitrator was appointed pursuant to the Donor Agreement.

[69] In my view, the Arbitrator was appointed pursuant to both the Consent Order and the Donor Agreement. As noted earlier in these reasons, the styles of cause in the arbitration referred specifically to the Donor Agreement, the Lebovics described their claims as arising under the Donor Agreement and the Lebovics asked for a declaration that the UJA could not rename the Campus, a remedy that the Lebovics say is only available to the Donor Agreement.

[70] Section 15.1 of the Donor Agreement provides:

15.1 In the event a dispute arises out of or in connection with this Agreement, it shall be submitted to a panel of three (3) arbitrators acting within thirty (30) days of their appointment, under the provisions of the Arbitrations Act of Ontario, with one (1) arbitrator being appointed by the Donors and one (1) by UJA Federation and the third selected by those two (2) arbitrators. Following the appointment of one (1) of the appointed arbitrators, the party not having appointed an arbitrator shall do so within seven (7) days of being given notice of such first appointed arbitrator, failing which the first appointed arbitrator shall act as a single arbitrator and such single arbitrator's decision shall be final and binding on all of the parties. If two (2) arbitrators are so appointed, they shall within seven (7) days of the appointment of the last of them to be appointed select the third arbitrator, failing which either of them may apply with notice to the other to a Justice of the Supreme Court of Ontario for the appointment by the Justice of such third arbitrator. The costs of such arbitrator will be paid as determined by the arbitrators and the decision of the majority of the arbitrators shall be final and binding and no appeal shall lie therefrom. (Emphasis added)

[71] The Lebovics submit that section 15.1 supports the idea that the parties intended to have rights of appeal from a single arbitrator. They note that when the provision speaks of a single arbitrator it speaks only of the arbitrator’s decision being “final and binding”. When it speaks to a decision of a three arbitrator panel, they note that it goes further and stipulates that the decision shall be final and binding and that no appeal shall lie from it.

[72] In my view, the difference in wording is not material. The law is clear that using the words “final and binding” in an arbitration agreement to describe the arbitral award means that there is no right of appeal from the award.[^13]

[73] The Lebovics point out that the arbitral provision in the Consent Order does not refer to “final and binding” arbitration but refers only to “binding” arbitration. The parties have been unable to find any case that addresses the meaning of the word “binding” standing alone in an arbitration agreement. Given the Lebovics’ submission that the arbitration was commenced under the Consent Order, they submit that the difference in wording is intended to give them a right of appeal. I do not agree.

[74] As noted earlier, in my view, the arbitration was commenced under both the Consent Order and the Donor Agreement because the notices of arbitration refer to both. Those issues that the Lebovics say are commenced under the Consent Order are, in my view, also commenced under the Donation Agreement because of the continuity between the two and because the fundamental issue under the Consent Order is whether the naming rights should be removed in light of the Lebovics refusal to pay the full $20 million donation on which naming rights were premised. That is also an issue under the Donor Agreement.

[75] I therefore conclude that the Arbitration agreement precludes appeals as a result of which the Lebovics’ motion for leave to appeal must be dismissed.

[76] In the event I am wrong in his conclusion, I will also address the remaining elements of s. 45 (1) of the Arbitration Act. I accept that the matters at stake in the arbitration and the determination of the questions of law at issue, assuming there are any questions of law at issue, significantly affect the rights of the parties and justify an appeal.

[77] The remaining element under s. 45 of the Arbitration Act is that appeals are restricted to questions of law. When applying s. 45(1), courts have held that this limits appeals to pure question of law and does not include questions of fact or mixed fact and law unless there is a palpable and overriding error.[^14]

[78] Questions of law are those that involve the articulation of the correct legal test. They include the application of an incorrect principle, the failure to consider a required element of a legal test, and the failure to consider a relevant factor.[^15] Questions of mixed fact and law arise out of the application of a legal standard to a set of facts[^16] and include whether a given set of facts satisfies the properly identified legal test.[^17]

[79] Appellate courts have cautioned against too readily characterizing issues as questions of law because “doing so may render the point of consensual arbitration nugatory”.[^18] A question of law can rarely be extricated from a question of mixed law and fact.[^19]

[80] I consider the appeal issues below in light of these principles and on their substantive merits.

Issue Four: Agreement on Educational Programming

[81] The Lebovics submit that the Arbitrator applied the wrong legal principles when determining whether there was an agreement on educational programming. The correct legal principle, according to the Lebovics is that: Where parties contemplate the execution of a written agreement before their legal obligations become enforceable, the failure to execute the written agreement is fatal to its enforceability. The Lebovics cite a single case in support of this proposition: the decision of the Court of Appeal for Ontario in Bawitko Investments Limited v Kernels Popcorn Limited.[^20]

[82] In addition, the Lebovics submit that the Arbitrator contradicted himself by finding on the one hand, that the Lebovics had tacitly approved the educational programming which triggered payments of the remaining $5 million;[^21] but also found, that they had wrongfully refused to approve the programming.[^22]

[83] I do not agree with either submission.

[84] The difficulty with the Lebovics legal proposition is that Bawitko does not stand for the proposition the Lebovics invoke.

[85] In Bawitko, the trial judge found an oral agreement to grant the respondent a franchise. The Court of Appeal found there was no oral agreement and reversed the trial judge. The Court of Appeal readily accepted the long standing proposition that a binding agreement is formed where the parties reach agreement on material terms even where the parties contemplate a written agreement. The court then stated:

In this case, the parties clearly contemplated the signing of a formal written contract. Given this fact, can the oral contract they were found to have reached constitute in law a completed contract which took effect immediately after it was agreed to on April 18? In determining this question, it is plainly necessary to examine what transpired at that time. … (Emphasis added)

[86] In other words, it depends on the facts.

[87] In Bawitko, the Court of Appeal considered a series of facts that led it to conclude there was no binding oral agreement on essential terms. It emphasized that the specific terms governing the business relationship at issue in the case were crucial to the formation of a binding contract. The parties had exchanged a 50-page draft agreement, which remained under negotiation. Although the trial judge found agreement on some terms, other essential terms were left unresolved, and no findings were made about them. The Court of Appeal held that the remaining terms could not be treated as mere formalities or boilerplate language. In these circumstances, it concluded that no binding agreement had been formed. Importantly, the Court did not establish a general rule that oral agreements could not be formed simply because the parties had contemplated a written agreement. Rather, it reaffirmed that the existence of a binding agreement depends on the specific facts of each case.

[88] In their factum, the Lebovics appear to accept that formation of an agreement depends on the facts because they state that the Arbitrator was required to consider the factual nexus of the negotiation in assessing whether the parties had reached an agreement on all of the essential terms of the contract.[^23]

[89] The Arbitrator did just that.

[90] In paragraphs 66 to 110 of his reasons, the Arbitrator conducted a detailed review of the evidence about programming to determine whether there was an agreement. In paragraph 111 of his reasons the Arbitrator states:

Having reread both the documentary evidence and transcripts carefully I am satisfied that the parties concurred on the issue of programming and therefore met the hurdle of “agreement” as the word was used in the [Consent Order]. The fact that they did not execute a formal signed written agreement does not in my view detract from the conclusion that they agreed to programming. I reach that conclusion based on the following:

[91] There then follow eight subparagraphs of factual points supporting his conclusion. The Arbitrator then continued with his legal analysis about whether there was an agreement in paragraphs 112 to 118. The Arbitrator picked up the issue again in paragraphs 179 to 184 of his reasons.

[92] The essence of the Arbitrator’s reasoning was that the Lebovics had actually agreed on the issue of programming per se, but that they withheld their signature from a written agreement because they wanted to use the need for agreement on programming as leverage to force the UJA to agree to their position on debt reduction on the Lebovic Campus. Paragraph 17 of the Consent Order did not, however, require agreement on debt levels to make the remaining $5 million payable. It required agreement only on educational programming. The Arbitrator found as a fact that the Lebovics had tacitly agreed on programming. There was ample evidence in the record to support that conclusion.

[93] In that light there is no contradiction between the Arbitrator’s findings that the Lebovics had tacitly approved the educational programming and that they wrongfully refused to approve the programming.[^24] The findings are entirely consistent with each other.

[94] Moreover, the additional context set out above makes clear that the Arbitrator did not err in principle. On the contrary, he did exactly what the law requires: he examined the factual context in detail and then determined whether those facts “met the hurdle of “agreement” as the word was used in the Consent Order. In that context the alleged error is at its highest, one of mixed fact and law, and would not qualify as a ground of appeal under s. 45 of the Arbitration Act in any event.

Issue Five: Failure to Apply Estoppel

[95] The Lebovics submit that the Arbitrator erred by failing to address the doctrine of estoppel by representation or estoppel by convention. I find no error in that regard.

[96] In Newfoundland and Labrador Nurses’ Union, Justice Abella confirmed that an arbitrator’s award need not include all the arguments, statutory provisions, jurisprudence or other details that a reviewing judge may prefer. These omissions do not mean that the reasons or result are unreasonable. Reasons are sufficient as long as they enable the reviewing court to understand why the arbitrator made his decision and permit the court to conclude whether the conclusion is within a range of reasonable outcomes.[^25]

[97] On my reading, the reasons make clear why the Arbitrator did not find for the Lebovics on the issue of estoppel even though he did not address it expressly.

[98] The Applicant’s factum acknowledges that one essential element of both forms of estoppel is that the party claiming estoppel must have detrimentally relied on the representation or behaviour of the other.

[99] The Lebovics led no evidence on the arbitration. Although they filed an affidavit of Wolf Lebovic, he refused to present himself for cross-examination even though the Arbitrator extended him the extraordinary accommodations of testifying in chief by affidavit (which other witnesses did not) and requiring the UJA to deliver written questions to Mr. Lebovic 48 hours before he was scheduled to be cross-examined. In the absence of evidence from the Lebovics which could be subject to cross-examination, there could be no credible evidence of detrimental reliance.

[100] The Arbitrator did, however, make the following findings of fact relevant to estoppel:

i. The Lebovics never denied that the debt remained payable.

ii. Joseph Lebovic acknowledged the continuation of the debt obligation.[^26]

iii. Following the death of Joseph Lebovic, Wolf Lebovic initially agreed but then refused to make the remaining payments.[^27]

iv. The parties did not proceed with the 2016 Arbitration because they each decided to put their legal rights in abeyance.[^28]

v. Wolf Lebovic was not prepared to engage with the Arbitrator to seek a solution to protect naming rights on title.[^29]

[101] In circumstances where there was no evidence of detrimental reliance, where the Lebovics acknowledged the continuing debt obligation, they agreed to put their legal rights into abeyance; and where they were not prepared to pay the remaining debt obligation in order to maintain their naming rights, the estoppel argument was so tangential and so unfounded as to justify the Arbitrator not addressing it expressly. That the argument was doomed to fail is abundantly clear from the Arbitrator’s reasons.

Issue 6: Limitations Period

[102] The Lebovics submit that the relief the Respondent sought in the arbitration was time-barred because, if there was an agreement on education programming in 2016, the obligation to pay the first instalment of the remaining $5 million arose 15 days after the agreement. Given that the arbitration did not begin until April 2021, the claims are time-barred. I do not agree.

[103] The principal relief the UJA sought in the arbitration was a declaration that they were entitled to rename the Lebovic Camus. Declarations are not subject to limitation periods if no consequential relief is sought.[^30] Although the UJA could be seen to have sought consequential relief in the form of damages arising from the increased interest on the consortium loan and the TD refinancing, those damages arose between January and June of 2021. UJA commenced the arbitration in April of 2021, before those damages had even crystallized. This alone is enough to dispose of the limitations period argument.

[104] In addition, however, the Arbitrator found as a fact that the Lebovics acknowledged the debt obligation throughout. The acknowledgement of a debt starts the limitation period afresh as of the date of the acknowledgement.[^31]

[105] Finally, the Arbitrator found as a fact that between 2016 and 2020, the parties agree to “put legal rights in abeyance to await further developments”[^32] and that “each side was prepared to continue to put in abeyance any formal dispute.”[^33] In other words, the parties by their conduct had tolled any limitation period.

Issue seven: Relief from Forfeiture

[106] The Lebovics submit that the Arbitrator erred in law by dismissing their claim for relief from forfeiture in a single paragraph by saying:

I find on the evidence before me no basis whatsoever given the conduct of the Lebovic interests to apply the principles necessary from relief from forfeiture.[^34]

[107] The Lebovics rely on authorities that say an Arbitrator’s failure to give reasons undermines the fairness of the arbitral process and renders it unsustainable.[^35] They argue that the single paragraph quoted above does not amount to sufficient reasons to sustain the dismissal of their relief from forfeiture claim.

[108] In my view, the Lebovics are reading the subparagraph quoted above in isolation and outside of the context of the entirety of the Arbitrator’s Reasons.

[109] The Lebovics acknowledging their factum that, when considering relief from forfeiture, an adjudicator is required to balance the following factors:

i. The conduct of the party seeking relief;

ii. The gravity of the breach; and

iii. The disparity between the value of the property forfeited and the damage caused by the breach.

[110] The passage dismissing the claim for relief from forfeiture is found at paragraph 197 (20) of the Arbitrator’s Reasons. That subparagraph is, however, preceded by the following additional subparagraphs which implicitly address the considerations relevant to relief from forfeiture:

1. Joseph Lebovic was not satisfied right from the execution of the C.O. until his passing with the efforts of UJA with respect to debt reduction and based on his dissatisfaction, withheld all of the remaining payments provided for in paragraph 17.

2. The Lebovic interests had no contractual entitlement to dictate the terms of debt refinance repayment on the Lebovic Campus.

3. At no time did the Lebovic interests seek to return to arbitration to seek redress for their concern regarding debt reduction or indeed any other issue as being founded in the provisions of the C.O.

4. The Lebovic interests had no contractual entitlement to withhold the remaining D.A. payments dependant on approval of debt repayment.

5. UJA did comply with its contractual obligations under the C.O.:

a. in completing the sale of the Quad B lands and paying the “net proceeds” towards the debt (para. 6 of C.O.); and,

b. in providing a proposal for education programming within 60 days of closing of the sale of the Quad B lands.

6. Joseph Lebovic did not make any objection or complaint from at least June 2016 forward until pleadings in this arbitration to the programming which had been agreed to by Pat Bradley on behalf of the Lebovic interests.

7. The Lebovic interests have not made any of the remaining payments contemplated of the D.A. or in para. 17 of the C.O.

8. There is some ambiguity in the language of para. 17 of the C.O. The obligation to make the remaining $5 million payment so arises from para. 4.2 of the D.A. I conclude that the language of para. 17 of the C.O. is not sufficient to suggest that the Lebovic interests could after the fact withhold approval of programming as a basis for not being in default of the D.A. obligations.

9. The Lebovic interests did not assist in further fundraising beyond the initial D.A. and C.O. provisions.

10. UJA in refinancing the mortgage in 2020-2021 did not breach any of the terms of the C.O. and did not increase the debt.

11. Joseph Lebovic and after his passing Wolf Lebovic, were kept advised of the banking requirements for debt refinancing.

12. Joseph Lebovic after he initially consented, unreasonably refused to consent to allow the TD financing with a Section 17 Land Titles Act Notice on title to proceed.

13. Wolf Lebovic following his brother's passing additionally agreed but then refused to make the remaining payments provided for under the C.O.

14. Wolf Lebovic was not prepared to engage before this arbitrator to seek a solution to protect the naming rights on title.

15. Wolf Lebovic did not cooperate in providing evidence of his position before this arbitrator and refused to be available for questioning after his counsel had advised he would be available to give evidence.

16. The Lebovic interests have provided no contractual or evidentiary basis for failing to make the payments under the C.O. previously agreed to. Counsel have not provided any submission that would so qualify.

17. Counsel for the UJA rely on the provisions of the Limitations Act as a bar to the relief sought. As set out above, the continuance of the debt was acknowledged by Joseph Lebovic and even if there was some support to the UJA’ submission, the debt in issue is not extinguished and is the basis for the relief sought by UJA to extinguish the naming rights.

[111] In these passages the Arbitrator is conducting a detailed review of the elements he is required to consider to determine a relief from forfeiture application. With respect to the conduct of the party seeking relief he notes that the Lebovics were withholding payment as leverage to impose their wishes about debt reduction, they had no contractual right to do so, they never sought to have the issue adjudicated, they did not object to the programming on which further payments depended, they initially consented to a s. 71 Agreement and then refused, and they initially agreed to pay the $5 million and then refused.

[112] These subparagraphs also implicitly address the gravity of the breach. They note that the Lebovics failed to pay $5 million without having any right to withhold payment and that the UJA met all of its obligations under the Consent Order.

[113] They also implicitly address the disparity between the nature of the forfeiture and the gravity of the breach by noting in subparagraph 14 that Wolf Lebovic was not prepared to engage in a solution to protect the naming rights. In this regard the name of the remedy the Lebovics seek is especially significant. The remedy is relief from forfeiture; it is not relief from contractual obligations. In other words, relief from forfeiture assumes that the party claiming relief is prepared to honour its contractual obligations. Wolf Lebovic was not prepared to do so because he was not prepared to engage with the Arbitrator about how to protect the naming rights.

[114] As noted earlier, arbitrators are not required to write their reasons in the same way that a reviewing court would write them. If the reasons enable the reviewing court to understand why the arbitrator made his decision and to determine whether the conclusion was reasonable, the reasons are sufficient.[^36] In light of these additional subparagraphs and the reasons read as a whole, I have no doubt about why the Arbitrator dismissed the claim for relief from forfeiture. I also have no doubt that he was correct in doing so.

[115] Finally on this point, the additional subparagraphs quoted above make clear that the Arbitrator was taking into account the factors relevant to relief from forfeiture, balancing them and exercising his discretion in deciding not to award the equitable remedy. That exercise is the application of legal principles to facts which makes the review the Lebovics seek a mixed question of fact and law in respect of which they have no right of appeal under s. 45 of the Arbitration Act.

[116] If I am incorrect in this and consider the appeal on the merits, I would balance the factors required for relief from forfeiture in the manner I have described above and would dismiss the appeal.

Issue 8: The Section 71 Agreement

[117] Paragraph 21 of the Consent Order provided that it shall be registered against title to all of the lands that comprise the Lebovic Campus.

[118] The Lebovics submit that the Arbitrator erred in determining that: (i) a section 71 agreement was an appropriate substitute for the Consent Order; and (ii) it was unreasonable for the Lebovics to withhold their consent to a section 71 agreement.

[119] The Lebovics argue that, although the factual matrix at the time of a contract’s execution may shed light on the parties’ intentions, evidence of the agreement’s surrounding circumstances must “never be allowed to overwhelm the words” and courts cannot use parties’ conduct to re-draft a contract.[^37] They also argue that the Arbitrator failed to apply the general principle of contractual interpretation that the specific terms circumscribe the ambit of the general terms.[^38] In other words, because the Consent Order required that it be registered against title, the Arbitrator could not hold that a substitute for it be registered on title.

[120] The Arbitrator was interpreting the contract between the parties, namely the Consent Order. As the Supreme Court of Canada noted in Sattva Capital Corp. v. Creston Moly Corp.,[^39] interpreting a contract is usually a mixed question of fact and law[^40] which is not subject to an appeal under s. 45 of the Arbitration Act.

[121] Even if there were an extricable error of law, the standard of review would be reasonableness. As the Supreme Court of Canada noted in Sattva Capital Corp. v. Creston Moly Corp.:[^41]

In the context of commercial arbitration, where appeals are restricted to questions of law, the standard of review will be reasonableness unless the question is one that would attract the correctness standard, such as constitutional questions or questions of law of central importance to the legal system as a whole and outside the adjudicator’s expertise. The question at issue here, whether the arbitrator interpreted the Agreement as a whole, does not fall into one of those categories. (Citation omitted).

[122] The same analysis applies here. Assuming therefore that there is an extricable question of law, the question becomes whether the Arbitrator’s view that the Consent Order could be replaced by a section 71 Agreement was reasonable. I find that the Arbitrator’s conclusions in this regard were entirely reasonable.

[123] The closest the Lebovics came to introducing evidence in support of their legal propositions with regard to a section 71 Agreement is a statement their counsel elicited from Mr. Draper, counsel to TD, on cross-examination to the effect that a section 71 agreement is more favourable for TD than a court order because it could be “cut out under proceedings to recover the loan should there be a default.”[^42] The Lebovics argue that this made a section 71 Agreement preferable to TD and therefore less preferable to the Lebovics than the Consent Order. This, however, takes Mr. Draper’s comments out of context.

[124] The full context in which Mr. Draper made the statement is as follows: The Lebovics wanted the Consent Order on title because they wanted their naming rights to be registered so as to give others notice of the right. The Consent Order was, however, postponed to the existing financing. The Director of Land Titles had already decided that the Consent Order would be expunged because it was not a court order. The issue then was what to do. TD would not refinance unless it had some instrument on title that postponed the renaming rights to the refinancing, just as the Consent Order had done. TD suggested a section 71 Agreement.

[125] The Lebovics say that a section 71 Agreement was more favourable to TD because it could be “cut out under proceedings to recover the loan should there be a default.” Mr. Draper went on in his cross-examination to explain what that meant. He said it meant two things. First, as a technical issue, there was no way to postpone a court order to a mortgage.[^43] Second, Mr. Draper could not give his client “advice that a court order discharging the court order would be obtainable nor that it would be given in a reasonable time to be able to affect a sale or foreclosure.”

[126] In addressing whether the registration of a section 71 Agreement was an effective substitute for the Consent Order, the Arbitrator took into account that:

(i) The Consent Order was already subordinated to the existing loans.

(ii) The TD refinancing would not increase the amount of debt on the Lebovic Campus.

(iii) The Lebovics objection to a section 71 Agreement arose out of their incorrect belief that the UJA had initiated contact with the Director of Land Titles to remove the Consent Order.

(iv) The Lebovics had agreed to a section 71 Agreement.

(v) The Lebovics then changed their minds about a section 71 agreement and tried to use their consent as leverage to force the UJA to deal with other endowment funds in a way that the Lebovics wanted. Those other funds were unrelated to the Lebovic Campus or the Consent Order.[^44]

[127] In that context, it was completely reasonable for the Arbitrator to conclude that a section 71 Agreement was an adequate substitute for the Consent Order. A section 71 Agreement would not have the Lebovics lose any priority in their security because the Consent Order was already subordinated to the existing financing. Given that there was no increase in the financing, they would retain the same exposure under a section 71 Agreement as they had under the Consent Order. Whatever use the Lebovics may try to make of Mr. Draper’s testimony, the Arbitrator found as a fact that the Lebovics had agreed to a section 71 Agreement. As a result, any consequences arising out of the factors that Mr. Draper referred to were ones that the Lebovics were either prepared to accept in agreeing to a section 71 Agreement or were not sufficiently concerned about to investigate. The Arbitrator found as a fact that Lebovics changed their mind about a section 71 Agreement because of a mistaken belief that the Director of Land Titles became involved at the instigation of the UJA and because they wanted to use their consent to a section 71 Agreement as leverage to force the UJA to deal with unrelated endowment funds in a particular way. The Lebovics had no right to such leverage under the Consent Order. In those circumstances it was entirely reasonable for the Arbitrator to conclude that a section 71 Agreement was an adequate substitute for the Consent Order.

Issue 9: Awarding Damages Award without evidence?

[128] The Lebovics submit that the Arbitrator erred in law in granting damages for which there was no supporting evidence.

[129] As noted in discussion with respect to Issue three above, I have found that the Arbitrator had adequate evidence before him on which to make the finding he did.

Issue 10: Arbitrator Erred in granting UJA Full Indemnity Costs

[130] The Lebovics submit that the Arbitrator erred in law by incorrectly applying principles relating to costs when granting UJA its costs on a full indemnity scale. The Lebovics submit that full indemnity costs are only justified for egregious misconduct and are available in only rare and exceptional cases.[^45]

[131] The Arbitrator recognized this principle in paragraph 7 of his costs award. He then noted that in his view, the Lebovics’ conduct justified full indemnity costs. He noted that;

… Much of that conduct is set out in the Reasons supporting the Award and is set out in more detail in paragraphs 15 to 22 of the written submissions of the [UJA].

In short, the conduct of the [Lebovics] resulted in a much more contentious and protracted process that added considerable complication to what otherwise might have been a more straightforward Arbitration.

[132] The Arbitrator then reduced the full indemnity costs requested to a substantial indemnity scale to take into account concerns about duplication and excess time.[^46]

[133] The Lebovics set out the factors that the Arbitrator considered in awarding elevated costs at paragraph 131 of their factum. They then conclude at paragraph 132 of their factum that “None of this conduct justifies a punitive award.”

[134] The factors that the Arbitrator considered as set out in the Lebovics factum are all relevant to an elevated cost award because they go to whether the conduct of the Lebovics unnecessarily lengthened, complicated or otherwise make the Arbitration more expensive.

[135] Costs are a discretionary matter. The manner in which the Arbitrator balances the various factors inherent in the exercise of discretion are not subject to appellate review provided the relevant factors are considered. As Laskin J.A. wrote in Reeves v. Brand:[^47]

The exercise of discretion involves the weighing of relevant considerations – here the maximum contact principle. To accede to the submission that an appeal court should intervene because it would have given more weight to a relevant consideration is to abandon discretion altogether. To be justified in interfering, an appellate court would have to be satisfied that the trial judge’s exercise of discretion was unreasonable.

[136] By their own presentation of the issue in their factum, the Lebovics are in effect conceding that the Arbitrator applied the correct principle. They simply do not like how the arbitrator balanced the factors inherent in the principle to arrive at an elevated cost award.

[137] That does not amount to an error in principle nor does it make the Arbitrator’s exercise of his discretion unreasonable. I therefore reject the Lebovics’ appeal on the issue of costs.

Respondent’s Application to Recognize and Enforce Awards

[138] Subsection 50(3) of the Arbitration Act provides that this Court shall give judgment enforcing an award made in Ontario unless a specified exception is met. The only exception the Lebovics rely on concerns their applications to set aside and/or appeal the Awards.

[139] Given that all of the grounds the Lebovics advanced to either set aside the awards or to reverse them findings on appeal have been dismissed, the Arbitral Award, the Jurisdiction Decision, the Damages Award and the Cost Award must be recognized and enforced by this Court.

Conclusion and Costs

[140] For the reasons set out above, I dismiss the Lebovics applications to set aside any of the Arbitrator’s awards and dismiss the appeals from the Arbitrator’s Awards. I grant the UJA’s application to recognize and enforce the awards of the Arbitrator.

[141] The UJA seeks its costs on an elevated scale. The say they that as a charity, they should not have to dip into their own coffers to pay for any of the costs of the arbitration.

[142] The UJA’s costs on a substantial indemnity scale including disbursements and HST come to $110,736.95. Their costs on a partial indemnity scale come to $74,169.02.

[143] The Lebovics’ costs are a little less than half of that with substantial indemnity costs at $48,810.45 and partial indemnity costs at $36,705.89.

[144] In my view, substantial indemnity costs are appropriate in favour of the UJA. As noted in these reasons, the appeal was entirely without merit. The issue of jurisdiction had already been determined by this Court and implicitly affirmed by the Court of Appeal. Renewing that challenge on this application amounts to a frivolous and vexatious abuse of process. The other issues raised by the Lebovics were entirely without merit. They were based on taking isolated passages from the Arbitrator’s decision and reading them out of context.

[145] Both the Arbitrator and Justice Akbarali noted that many of the decisions taken by the Lebovics throughout this arbitration were motivated by tactical concerns rather than true legal issues. I share that concern here too. A charity like the UJA should not have to foot the costs of tactical games that the Lebovics have chosen to play.

[146] Although the costs of the UJA are higher than those of the Lebovics, their counsel were also more senior and operate at generally higher hourly rates. This would have been known to the Lebovics at the outset of the arbitration and could therefore not be beyond their reasonable expectations. I have reviewed the Respondent’s bill of costs and am satisfied that the amount of time spent and allocation of resources was reasonable. I therefore fix costs in favour of the UJA on a substantial indemnity scale at $110,736.95 payable within 30 days.

Koehnen J.

Released: September 08, 2025

[^1]: Arbitration Act, 1991, SO 1991, c 17.

[^2]: Baffinland v Tower-EBC, 2022 ONSC 1900 at para 35; aff’d at 2023 ONCA 245; Smyth v Perth and Smiths Falls District Hospital, 2008 ONCA 794 at para 17; Mexico v Cargill, Inc, 2011 ONCA 622 at paras 34-35.

[^3]: Demand dated September 8, 2022, AR, Vol 12, p 4867.

[^4]: Lebovic Counterclaim para.99(a) (i), AR Vol 1, p. 192.

[^5]: Toronto (City) v CUPE, Local 19, 2003 SCC 63, [2003] 3 SCR 77 at para 23.

[^6]: Consolidated Contractors Group SAL (Offshore) v Ambatovy Minerals SA, 2017 ONCA 939, [2017] OJ No 6323 (QL) at para 42; PCL Constructors v Johnson Controls, 2022 ONSC 1642 at para 41; The Joseph Lebovic Charitable Foundation et al. v. Jewish Foundation of Greater Toronto, 2024 ONSC 4400 at para 34 [Justice Akbarali’s Decision].

[^7]: Desputeaux v Éditions Chouette (1987) Inc., 2003 SCC 17, [2003] 1 SCR 187 at para 35 [Desputeaux]; See also: Consolidated Contractors Group SAL (Offshore) v Ambatovy Minerals SA, 2017 ONCA 939 at para 42; leave to appeal refused, Consolidated Contractors Group SAL (Offshore) v Ambatovy Minerals SA, 2018 99661 (SCC).

[^8]: PCL Constructors v Johnson Controls, 2022 ONSC 1642.

[^9]: PCL Constructors v Johnson Controls, 2022 ONSC 1642 at paras 33, 37.

[^10]: See especially para. 34 of Justice Akbarali’s decision quoted in para. 33 above.

[^11]: Damages Award at para. 4.

[^12]: Justice Akabrali’s Decision at paras. 10, 23-24.

[^13]: Yorkville North Development Ltd. v. North York (City) (1988), 1988 4701 (ON CA), 64 O.R. (2d) 225 (C.A.) at p. 227; Labourers' International Union of North America, Local 183 v. Carpenters and Allied Workers Local 27, 1997 1429 (ON CA) 34 O.R. (3d) 472 (C.A.), at pp. 479-80; Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245 at para. 41; Arbitration Law of Canada: Practice and Procedure, 3rd ed. (Huntington, N.Y.: JurisNet, 2017), at p. 483.

[^14]: Bulut v. Bulut, 2025 ONSC 414 at para 19; The Tire Pit Inc v. Augend 6285 Yonge Village Properties Ltd, 2022 ONSC 6763 at para 15.

[^15]: Sattva Capital Corp v. Creston Moly Corp, 2014 SCC 53 at para 53.

[^16]: Sattva Capital Corp v. Creston Moly Corp, 2014 SCC 53 at para 49.

[^17]: Woods v Sessler, 2024 ONSC 3008 at para 18.

[^18]: Tall Ships Development Inc. v. Brockville (City), 2022 ONCA 861 at para. 16.

[^19]: Tall Ships Development Inc. v. Brockville (City), 2022 ONCA 861 at para 16, citing Ledcor Construction Ltd. V. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 SCR 23 at para 113 and Sattva Capital Corp v. Creston Moly Corp. at para 55.

[^20]: Bawitko Investments Limited v Kernels Popcorn Limited, 1991 2734 (ONCA) [Bawitko].

[^21]: Arbitrator's Reasons, paras. 80.

[^22]: Arbitrator's Reasons, paras.118.

[^23]: Olivieri v Sherman, 2007 ONCA 491 at paras 41, 44.

[^24]: Arbitrator's Reasons, para. 118.

[^25]: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at para 16.

[^26]: Arbitrator's Reasons at para. 41, para. 114(19).

[^27]: Arbitrator's Reasons para 114 (13).

[^28]: Arbitrator's Reasons para 81.

[^29]: Arbitrator's Reasons para 114 (14).

[^30]: Limitations Act, 2002, SO 2002, c 24, Sch B s. 16(1)(a).

[^31]: Limitations Act, 2002, SO 2002, c 24, Sch B s.13(1).

[^32]: Arbitrator's Reasons at para. 81.

[^33]: Arbitrator's Reasons at para. 85.

[^34]: Arbitrator's Reasons at para. 197 (20).

[^35]: Tall Ships Landing Development Inc. v. City of Brockville, 2020 ONSC 5527 at para 35.

[^36]: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at para 16.

[^37]: Relying on Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 at para 57.

[^38]: BG Checo International Ltd v British Columbia Hydro & Power Authority, 1993 15 (SCC) at para 9.

[^39]: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633.

[^40]: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633 at para. 53.

[^41]: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633, at para. 106.

[^42]: Cross-examination of Philip Draper, transcript of day 7, page 52 line 12 – page 53, line 3 and page 55 line 12-19, at Exhibit “U” of Leung Affidavit, AR (Vol 9), p 3675-3676; 3678.

[^43]: Draper Cross-Examination p. 54-55 Q. 114.

[^44]: See for example among other paragraphs the Arbitrator's Reasons at paras. 150, 190, 192, 194.

[^45]: Relying on Net Connect Installation Inc v Mobile Zone Inc, 2017 ONCA 766 at paras 8-9.

[^46]: Arbitrator's Costs Reasons at para. 13.

[^47]: Reeves v. Brand, 2018 ONCA 263, 8 R.F.L. (8th) 1, at para. 23.