Court File and Parties

Court File No.: CV-25-00747085-00CL Date: 2025-10-08 Superior Court of Justice – Ontario (Commercial List)

Re: Marko N. Bulut, Applicant And: Steven Bulut and 1091369 Ontario Inc., Respondents

Before: Justice J. Dietrich

Counsel: David Winer, for the Applicant Andrew Locatelli, for the Respondents

Heard: October 3, 2025

Reasons for Decision

Introduction

[1] The Applicant, Marko Bulut seeks an order enforcing paragraph 7 (the "Comeback Provision") of the arbitral award of the Honourable Frank J.C. Newbould, K.C. (the "Arbitrator") dated June 20, 2024 (the "Formal Award") pursuant to s. 50(1) of the Arbitration Act, S.O. 1991, c. 17 (the "Arbitration Act").

[2] On August 13, 2025, I granted an order enforcing the Formal Award except the Comeback Provision, on an unopposed basis.

[3] The Comeback Provision provides: "IT IS FURTHER ORDERED that any party may bring this matter back before the Arbitrator on notice to all parties to seek the guidance, advice, or direction of the Arbitrator respecting the sale process of the Property (or attendant issues respecting the same)."

[4] The Respondents take the position that the Comeback Provision falls within the exceptions contained in s. 50(7) of the Arbitration Act and therefore, this Court should not enforce the provision.

Background

[5] The underlying dispute is related to Applicant's rights to real property located at 883 Mapleview Drive, Barrie, Ontario (the "Real Property").

[6] The dispute was heard over eight days in February 2024. On April 25, 2024, the Arbitrator delivered his decision on the merits (the "Merits Decision"), holding that the Applicant was entitled to a 50% interest in the Real Property.

[7] The parties could not agree on the form of the Formal Award and a subsequent hearing was held on June 20, 2024. The Arbitrator released a decision on that day (the "Subsequent Decision") noting that both parties agreed that paragraph 7 should be included in the Formal Award. He wrote:

[3] The parties are in agreement that there be a comeback clause providing that any party may bring this matter back before the Arbitrator on notice to all parties to seek the guidance, advice, or direction of the Arbitrator respecting the sale process of the Property (or attendant issues respecting the same). Mr. Jervis said Steven would agree that no sale would be finalized without notice to Mark and if Mark did not agree to the proposed terms, he could move under this clause for appropriate relief.

[5] I have decided that the appropriate formal Award should include a vesting order for both Steven and Mark, and that the Land Registrar is to amend the parcel register for the Property to reflect Steven and Mark as tenants in common. It will not be a cloud on title. If either Steven or Mark are unhappy with any steps taken by the either regarding the Property, a motion to me as arbitrator under the comeback clause can be brought, and if appropriate, an order could be made removing the vesting provision and registration of it.

[8] For context, Mr. Jervis was counsel to the Respondents at that time and he consented to the form of Formal Award on the Respondents' behalf.

[9] Several subsequent case conferences were held before the Arbitrator between February 2025 and June 2025 in accordance with the Comeback Provision.

[10] Separately, the Respondents sought leave to appeal the Final Award and were denied leave from this Court: see Bulut v. Bulut, 2025 ONSC 414. The Respondents also sought leave to appeal that decision to the Ontario Court of Appeal and were denied leave: see Bulut v. Bulut, 2025 ONCA 477. There were no arguments raised with respect to the Comeback Provision at that time, including in respect of the jurisdiction of the Arbitrator to grant that provision.

Issue

[11] The only issue to be determined is whether the Comeback Provision should be enforced by this Court under s. 50 of the Arbitration Act.

Analysis

[12] The Court is required to enforce an arbitral award made in Ontario unless specific enumerated circumstances apply: see BGOI Films Inc. v. 108 Media Corporation, 2019 ONCA 539 at para. 5.

[13] The only exception raised by the Respondents is s. 50(7) of the Arbitration Act which provides:

50(7) If the award gives a remedy that the court does not have jurisdiction to grant or would not grant in a proceeding based on similar circumstances, the court may,

(a) grant a different remedy requested by the applicant; or

(b) in the case of an award made in Ontario, remit it to the arbitral tribunal with the court's opinion, in which case the arbitral tribunal may award a different remedy. 1991, c. 17, s. 50 (7).

[14] The Respondents submit that the Comeback Provision was not addressed in the Merits Decision and therefore goes beyond the scope of what should be included in an order of the Court. An order of the Court is limited to operative language contained in a decision and it is not a vehicle to request new or additional relief: see 1000425140 Ontario Inc. v. 1000176653 Ontario Inc., 2024 ONSC 319 at paras. 3-4. As such, the Respondents argue that the Comeback Provision is not a provision that is properly granted by a Court in a final order and therefore falls within s. 50(7) of the Arbitration Act.

[15] However, the Respondents' argument overlooks the Subsequent Decision which specifically addressed the Comeback Provision.

[16] The Respondents also rely on Thompson v. Thiessen, 2001 CarswellOnt 2003 where Mackinnon J. declined to enforce a paragraph in an arbitral award requiring that future disputes between the parties be resolved by the same arbitrator who conducted the first arbitration without counsel in an abbreviated hearing. Mackinnon J. wrote:

7 In my view, the requirement that future disputes be resolved by the same arbitrator who conducted the first arbitration, without counsel and in less than one half day, is a remedy that falls within the description in s. 50(7)(a) of one which the court would not grant in similar circumstances. A court would not limit a litigant's right to counsel, nor rule in advance of knowing the nature of a dispute and its complexity, that only one half day would be allocated to its resolution. With respect to the choice of arbitrator, one of the reasons given by the applicant in support of retaining the same arbitrator is that his knowledge of the facts garnered from the first hearing would put him in an advantageous position over any other arbitrator as to ability to expedite the resolution of future disputes. It goes without saying that his award is res judicata as to the issues covered and facts found in it. This is true, regardless of the identity of any subsequent arbitrator.

8 Beyond that, a future dispute should be resolved on the basis of the evidence submitted in relation to that dispute, and not on the basis of an arbitrator's previous arbitration experience with the same litigants. A court would not, in the context of a final order, require that future disputes in subsequent cases between the same litigants be determined by any particular judge, including the judge who made that final order.

9 In my view, the court should decline to enforce these provisions of the arbitrator's award, whether or not they were on consent. In so finding, I rely on s. 50(7) of the Act which confers a discretion on a judge in the context of an application brought by a party to an arbitration agreement seeking to enforce an award. Taking the applicant's case at it's highest, the parties have consented to an order incorporating these terms. The court has a general discretion in deciding whether to hold parties to the terms of a settlement when it is asked to incorporate that settlement into its own order. [Emphasis added.]

[17] The Comeback Provision in the Formal Award is much different than the relief Mackinnon J. addressed in Thompson v. Thiessen as the Comeback Provision (i) is limited to matters involving the sales process of the Real Property – which was squarely at issue in the arbitration – rather than future disputes in subsequent cases between the parties; (ii) does not limit the parties' right to counsel; and (iii) does not require an expedited hearing.

[18] Subsection 50(7) of the Arbitration Act is very narrowly drafted: see Abittan v. Wilcox, 2020 ONSC 6836 at para 15. I am not persuaded that it applies in this case. The Comeback Provision was made on consent of the parties. The parties have also attorned to that provision with several case conferences held before the Arbitrator addressing issues related to the sale of the Property. As well, the Respondents did not raise the Comeback Provision as an issue in their previous attempts to set aside the Formal Award.

[19] I am not persuaded that a Court does not have jurisdiction to grant or would not grant the Comeback Provision in a proceeding based on similar circumstances.

[20] Having found that the exception set out in s. 50(7) of the Arbitration Act does not apply, I am required under s. 50(3) of the Arbitration Act to enforce the Comeback Provision.

Disposition

[21] For the reasons above, I grant the relief requested by the Applicant.

[22] If the parties are not able to resolve costs of this matter, the Applicant may email a costs submission of no more than three double-spaced pages to the Commercial List Office within 15 days of the date of this endorsement. The Respondents may deliver responding submissions of no more than three double-spaced pages within 15 days following the delivery of the Applicant's submissions. No reply submissions are to be delivered without leave.

The Honourable Justice J. Dietrich

Date: October 8, 2025