CITATION: YCC No 1311 v. Star Woodworking Ltd., 2026 ONSC 2381
COURT FILE NO.: CV-25-734627
DATE: 20260430
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YORK REGION STANDARD CONDOMINIUM CORPORATION NO. 1311
Respondent
– and –
STAR WOODWORKING LTD., 2274461 ONTARIO LTD., MARYAM KHALEGHI, NOAH IMPROVE INC., RICH POINT GROUP INC., JUDAH HOLDINGS LTD. and 2527041 ONTARIO INC.
Appellants
Andrea Lusk & An Nguyen, for the Respondent
Kevin Sherkin & Mitchell Lightowler, for the Appellants
HEARD: February 13, 2026
Justice pollak
REASONS FOR DECISION
Background
[1] The Appellants, Judah Holdings Ltd., Aspect Creative Agency Inc., Rich Point Group Inc. and 2527041 Ontario Inc. appeal the Arbitration Award of Leslie Dizgun, dated December 5, 2024 (the “Award”). This motion to set aside the Award pursuant to s. 46 of the Arbitration Act, 1991, S.O. 1991, c. 17 and for Leave to Appeal and Appeal under s. 45 was heard on February 13, 2026.
[2] The Appellants sought a declaration that YRSCC 1311’s conduct was oppressive, contrary to section 135 of the Condominium Act, 1998, S.O. 1998, c. 19 and damages or compensation as a result of the oppressive conduct.
[3] The appellant-owners of commercial units commenced actions against the respondent, York Region Standard Condominium Corporation No. 1311 (“YRSCC 1311”), which operates a home improvement centre (the “Centre”), and others in 2018. Their claims against YRSCC 1311 were stayed in favour of mediation and arbitration by a Superior Court order dated July 13, 2021 (the “Stayed Claims”). The majority of the Stayed Claims were against the declarant, Improve Inc. (“Improve”), the developer of the building and the vendor of the purchased units. The Appellants alleged that YRSCC 1311 was precluded from enforcing its declaration because Improve did not provide notice of material change and that YRSCC 1311 has acted oppressively by not enforcing its governing documents (Declarations).
[4] The consolidated proceeding consists of four actions: CV-18-00591969, CV-18-600196, CV-18-610496 and the discontinued CV-18-608179.
[5] During the course of the actions in the Superior Court, the Condominium Act was amended to require that disputes relating to certain sections of the Condominium Act must be resolved through mediation and arbitration. YRSCC 1311 successfully moved to stay the claims against it while the other claims in the actions were resolved by way of arbitration.
[6] The arbitration was heard over four days on March 25, April 22 and 23, and May 6, 2024, mainly consisting of cross-examinations of the parties’ respective affidavits-in-chief. Mr. Judah for the Appellants and (former) directors, Adrian Tari and Paul Kennedy for YRSCC 1311. No other witnesses were called or summonsed.
[7] The main claim of the Appellants at arbitration was that YRSCC 1311, since Improve turned over control of YRSCC 1311 to an independent board, has failed to enforce articles 4.1 and 4.3 of the Declaration, which provide that Units can only be used for certain purposes. The Appellants submit that these uses have been permitted by YRSCC 1311, contrary to the Declaration:
a. units are being used for the storage of furniture and other items;
b. one unit owner stores hot tubs in the common elements;
c. a flower business operates at the Centre;
d. a lawyers’ office operates at the Centre;
e. an accountants’ office operates at the Centre;
f. a massage business operates at the Centre;
g. a cosmetics business operates at the Centre;
h. a mortgage business may be operating which conducts a “cash business”;
i. there are some retail businesses (including a toy store) being operated at the Centre;
j. unit owners in the food court enclosed common elements;
k. a number of units altered the glass in their storefronts with no evidence of consent from the Board, such as the cosmetics business which has frosted glass windows.
l. outdoor parking is used for storage.
m. jacuzzis are stored in the parking lot.
n. Paul Kennedy, a unit owner, built a cabana/pool beyond his unit into common elements;
o. certain non-arm’s length transactions have taken place, for example, retaining GTA Security, the principal of which is alleged to also be the owner of Peppe’s Pizza, a unit owner in the food court; and
p. some offices are located on first floor instead of the second floor.
[8] It was submitted that these unauthorized uses damaged the Centre's parking lot. Further, these non-home improvement, renovation and design related uses “dilute and tarnish the Centre's image”. The Appellants argued that the clientele who “attend these car shows and concerts are likely not clientele who are interested in purchasing services or products from Units in the Centre”.
[9] The Appellants submit that the evidence adduced at the Arbitration shows that YRSCC 1311 has taken virtually no substantive actions to prevent these unauthorized businesses and events or to enforce the Declaration as they are required to do.
[10] The Appellants move for leave to appeal under s. 45(1) of the Arbitration Act, which provides that a party may appeal an arbitral award on a question of law and that leave to appeal will be granted if (1) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and (2) the determination of the question of law at issue will significantly affect the rights of the parties.
[11] The Appellants also submit, in the alternative, that they were denied natural justice and procedural fairness, which requires that a decision be grounded in the arguments presented by the parties and supported by clear and transparent reasons. A breach of procedural fairness is grounds to set aside and the Arbitration Award under section 46(1)6. of the Arbitration Act, which states that an arbitral award may be set aside if “[t]he applicant was not treated equally and fairly”.
[12] The Respondent submits that the parties negotiated and agreed to an Agreement to Arbitrate and Terms of Appointment re Arbitration (the “Arbitration Agreement”) at the outset of the arbitration proceeding. Section 5 of the Arbitration Agreement provides that the Award is final and binding and not subject to appeal. Therefore, if the Arbitration Agreement is valid, s. 45 of the Arbitration Act does not apply.
Issues
[13] The issues on this appeal are:
a. Is there a binding arbitration agreement between the parties?
b. If there is no arbitration agreement, should the Appellants be granted leave to appeal the Award on a question of law under section 45(1) of the Arbitration Act.
c. Should the Award be set aside under section 46(1)6. of the Arbitration Act?
[14] The first question to be determined on this Appeal is whether the Appellants have a right to bring this appeal. If there is a valid arbitration agreement, the Appellants do not have a right to bring an appeal under s. 45 of the Arbitration Act.
Positions of the Parties
[15] The Appellants deny that an arbitration Agreement was reached and submit that because the Condominium Act expressly provides that certain provisions are to be determined by arbitration, that statutorily mandated arbitration will be governed by the Arbitration Act. The Condominium Act therefore provides that the Arbitration Act governs the arbitration (in the absence of an arbitration agreement). Therefore, in the absence of a signed arbitration agreement (which is the case in this arbitration according to the Appellants), the Condominium Act governs, and as the Condominium Act does not provide for a procedure, the Arbitration Act’s procedural rules apply.
[16] The Appellants submit that s. 45 of the Arbitration Act allows an appeal on a question of law, which applies to this appeal. This submission is predicated on the finding that there is no arbitration agreement by the parties. The parties were mandated to submit the dispute to arbitration by operation of the Condominium Act and by the order of the Court dated July 14, 2022 and by a further order appointing the Arbitrator.
[17] The Respondents submit that if this court finds that there is no arbitration agreement between the parties (which is an alternative submission to their main submission that there was a valid arbitration agreement), the arbitrator made no errors of law which would warrant setting aside the arbitrator’s decision under sections 45(1) or 46(1)6. of the Arbitration Act. The arbitrator considered the evidence and found that the Appellants had failed to meet their burden of proof to establish “oppressive conduct” by YRSCC 1311 on a balance of probabilities. His assessment and conclusions were outlined in the Award with reference to the evidence adduced at the arbitration hearing by both parties.
[18] The Appellant relies on the case of Wang v. Takhar, 2019 ONSC 5535, where the Ontario Superior Court found that the reasons of the arbitrator were so unclear and confusing that they failed to explain how the arbitrator arrived at his conclusion. This deficiency amounted to a breach of procedural fairness. The Court held that it had the power to set aside and vary the decision under s. 46(1) of the Arbitration Act.
Is there an Arbitration Agreement?
[19] Section 1 of the Arbitration Act defines an arbitration agreement as an agreement by the parties to agree to submit a dispute to arbitration that has arisen or may arise between them. Subsection 5(1) of the Arbitration Act states that an arbitration agreement may be an independent agreement or part of another agreement. Pursuant to subsection 5(3), an arbitration agreement does not need to be in writing and may be an oral agreement.
[20] To determine whether the Arbitration Agreement is valid and binding, I must first outline the history of this proceeding and how the Arbitration Agreement came to be.
[21] This arbitration was commenced by YRSCC 1311 on February 24, 2022, after the Appellants did not respond to YRSCC 1311’s notice of mediation delivered in July of 2021. The Appellants failed to select an arbitrator and YRSCC 1311 brought another motion before this court to appoint Mr. Dizgun as arbitrator.
[22] After an initial draft of the Arbitration Agreement was circulated to the parties’ lawyers, the Appellants’ lawyer’s email on April 19, 2022 requested an amendment to the draft agreement providing that his law firm does not guarantee payment of the arbitrator’s fee. The request was discussed in a case conference call with the parties and the arbitrator on April 20, 2023 and noted in the Fifth Procedural Direction by the Arbitrator dated April 24, 2023. The terms of the draft Agreement were changed to incorporate the changes requested by the Appellants’ counsel.
[23] The finalized Arbitration Agreement was circulated to the parties’ respective lawyers and signed by the arbitrator and YRSCC 1311’s lawyer. The Appellants’ lawyer did not sign the Arbitration Agreement, even though there were follow up emails from the arbitrator’s office. The Appellants paid the arbitrator’s fees and participated fully in the arbitration proceeding.
[24] Just prior to the arbitration hearing, the Appellants abandoned most of their claims and proceeded only with the oppression claims under section 135 of the Condominium Act concerning YRSCC 1311’s alleged failure to enforce its governing documents and self-dealing or impropriety with related companies. This was the issue submitted to arbitration.
[25] On the basis of the evidence I have referred to above, I find that the parties negotiated and agreed to the Arbitration Agreement at the outset of the arbitration proceeding. Section 5 of that Arbitration Agreement provides that the Award is final and binding and not subject to appeal:
The Arbitrator shall apply the laws of the Province of Ontario. The Parties agree that the Award is final, binding, and not subject to appeal on questions of fact, law, or mixed fact and law. All adjudicative functions will be performed personally and exclusively by the Arbitrator. [Emphasis added.]
[26] I make this finding even though the Appellants’ lawyer did not sign the Arbitration Agreement on behalf of the Appellants because he negotiated the terms of the agreement with YRSCC 1311’s lawyer and the arbitrator (see the Procedural Direction issued by the arbitrator on April 24, 2023). Further, the Appellants paid the arbitrator’s fees and participated in the arbitration proceeding under the terms of that Arbitration Agreement. The Appellants agreed to be bound by the Arbitration Agreement by their behaviour participating in the proceeding and waived the right to object. This is an outward manifestation of assent to the Arbitration Agreement that would induce a reasonable expectation from the Respondents that the Appellants intended to be bound by the Arbitration Agreement: see Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, [2020] 3 S.C.R. 247 at para. 33.
[27] The Appellants advised the Respondents for the first time that there was allegedly no arbitration agreement between the parties in the Reply Affidavit of Benjamin Judah sworn July 18, 2025, well after the Award was released.
[28] Most importantly, an objection to the existence or application of the Arbitration Agreement and the jurisdiction of the arbitrator, which includes the authority to make a final and binding decision with no appeal, must be raised before the Arbitrator at the beginning of the Arbitration. Our Courts have repeatedly held that the Arbitrator’s jurisdiction (including the determination of whether an arbitration agreement has been reached and what the terms of the agreement are), must be adjudicated by the Arbitrator at the first instance: see e.g. Kingston Automation Technology Inc. v. Montebello Packaging, 2021 ONSC 5924, at para. 18; The Tire Pit Inc. v. Augend 6285 Yonge Village Properties Ltd., 2022 ONSC 6763, at para. 26. The Appellants could have and should have raised the issue with the arbitrator at the beginning of the arbitration proceeding in March 2024 as required by section 17 of the Arbitration Act.
[29] Further, in Travelers Insurance Company v. CAA Insurance Company, 2017 ONSC 5659, the court found there was a clear intention of the parties to be bound by an arbitration agreement that provided for a right of appeal on issues of law or mixed fact and law because the parties’ respective lawyers drafted, negotiated and discussed the terms of the agreement with the arbitrator, and the parties participated in the arbitration. In this case as well, the Appellants did not raise this issue at the beginning of the arbitration.
[30] I find that the Appellants are bound by Section 5 of the Arbitration Agreement. The Award is final and binding and not subject to appeal. For these reasons, the Appellants’ motion for leave to appeal under section 45(1) of the Arbitration Act must fail.
Was there a breach of procedural fairness?
[31] The Appellants also rely on section 46(1)6. of the Arbitration Act as the basis for setting aside an arbitral award. The Respondents submit that that ground is narrow and is not intended to be an alternate appeal route for substantive disputes. Section 46 of the Arbitration Act “cannot be used as a broad appeal route to bootstrap substantive arguments attacking an arbitrator’s findings which the parties had agreed would be immune from appeal”: Tall Ships Landing Development Inc. v. The Corporation of the City of Brockville, 2022 ONCA 861, at para. 95, leave to appeal denied [2023] S.C.C.A. No. 29.
[32] Section 46(1)6. provides that Procedural unfairness arises when a party is denied a sufficient opportunity to present its case or respond to another party's case.
[33] To determine if this ground of appeal has been established, I will consider the nature of the decision and process, the statutory scheme, the importance of the decision to affected individuals, legitimate expectations, and the decision-maker's choices of procedure: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.
[34] In this appeal, I find that the arbitration proceeding was fair. Both parties were afforded natural justice and procedural fairness. The Appellants were represented by an experienced litigation lawyer at the arbitration. No objections relating to process were raised by the Appellants during the arbitration or they were dealt with in favour of the Appellants.
[35] The arbitrator properly considered the issues with reference to the evidence and gave sufficient reasons for his conclusions in the Award. He found that the Appellants’ claim failed because the Appellants failed to prove oppressive conduct by YRSCC 1311 on a balance of probabilities.
[36] The arbitrator specifically noted that the Appellants did not provide any direct evidence of their allegations or call or summons additional witnesses with direct evidence. The arbitrator heard and considered the evidence of the three witnesses (Mr. Judah for the Appellants and Mr. Tari and Mr. Kennedy for YRSCC 1311). He found that the evidence from YRSCC 1311’s directors rebutted the Appellants’ evidence, which was based only on hearsay, with direct evidence. Further, the Appellants’ claims were successfully contradicted in cross-examinations. He found that:
Mr. Tari’s evidence also generally rebutted the complaints of non-enforcement advanced by the Respondents. With respect to the non-compliant businesses, such as cosmetics or massage, they were no longer in operation. The parking issues were either short-term and resolved or represented the leasing of certain parking units in the daytime only. Mr. Tari acknowledged there continued to be parking issues but again the Board was making attempts to enforce the Declaration. No jacuzzis were stored in the parking lot although there were certain items in the parking lot which may have been permitted for display purposes. There are no retail businesses being operated in the Centre contrary to the Declaration. In summary, the claims of nonenforcement were denied or rebutted by Mr. Tari and Mr. Kennedy […]
Mr. Judah gave evidence consistent with the list of complaints set out above. Exhibit 13 of the Respondents’ document brief is a list of non-compliant units, and Exhibit 12 are photos of noncompliant units said to be taken as of February, 2024. In cross-examination, Mr. Judah conceded that he did not enter any of the units allegedly non-compliant on the list […]
I have a number of problems with the evidence submitted by the parties, although I make no criticism of counsel. I expect there were valid reasons for the approach taken to this hearing. It seems clear that YRSCC 1311 historically kept poor records. There are incomplete Board Minutes, and little evidence of communications from any property manager to non-compliant unit owners. This has improved over time, but I am mainly left with the evidence of Mr. Tari and Mr. Kennedy with little corroboration. […]
The Respondents made sweeping allegations of misconduct but the totality of their evidence amounts to hearsay or bald allegation absent specificity and, in most cases, any direct evidence. Some examples include the following:
Allegations of financial misconduct on the part of YRSCC 1311 with no expert evidence of any sort actually demonstrating misuse of funds, including marketing fees, or raising a prima facie case of such misuse. As an example, Mr. Judah referred to payments made for night cleaning, which he questioned. A review of the corporation’s financial statements year to year show amounts for cleaning consistent with the payment made for “night cleaning”.
Allegations that Mr. Chekhter “controlled” the Board with no evidence at a minimum of his ownership or control with other conspirators of a majority of units at the Centre, or when such control existed.
Allegations in essence of deliberate non-enforcement of the Declaration absent evidence from Mr. Chekhter, or any property manager at the Centre. No one was summonsed who could have been subject to cross-examination or shed direct light on the Board’s enforcement efforts. The parties and, in particular, the Respondents failed to truly join issue on the matters at issue in the arbitration.
Allegations of “self-dealing” with no evidence from any person alleged to be directly involved in an interested or non-arm’s length contract, or the alleged self-dealing person who could be challenged in that regard.
It would have been helpful to have a list of all commercial units, indicating whether they were vacant or occupied and, if occupied, the business conducted from the unit […]
- As a result, no compensation is required to be paid to the Respondents. Although not necessary for my Decision, if I had found oppression, I would not have ordered a reimbursement of the Respondents’ maintenance fees and marketing fees. Compensation means to be compensated for a loss suffered as a result of the oppressive conduct. This could be more than or less than the proposed remedy sought by the Respondents, but no real attention was devoted to evidence regarding any actual loss suffered by the Respondents. [Emphasis added.]
[37] The burden of proof for the Appellants’ oppression claim was on the Appellants. On the basis of the evidence, I find that they had a fair opportunity to prove their claim but did not provide the necessary evidence to support their claim.
[38] The only evidence the Appellants relied on was the testimony of Mr. Judah without direct or further supporting evidence.
[39] Paragraph 4 of the Eleventh Procedural Direction dated March 4, 2024 states:
[4] The Arbitrator indicated that the hearing would proceed as follows: each party would have between 15 and 30 minutes to present its opening statement, there would be cross-examination on the Claimant’s affidavit-in-chief, following which the Claimant would lead the evidence of its other witnesses (if any), who would be subject to cross-examination. Then, there would be cross-examination on the Respondents’ affidavit-in-chief, following which the Respondents would lead the evidence of its other witnesses (if any), who would be subject to cross-examination. [Emphasis added.]
[40] Both parties discussed and agreed to the arbitration process with the arbitrator (including a final and binding decision with no appeal) and had the chance present their best evidence in the proceeding. Affidavits in chief were exchanged in advance, witnesses were produced at the arbitration hearing, and the Appellants had a fair opportunity to call and cross-examine opposing witnesses during the hearing.
[41] The Appellants further submit that the Arbitrator’s reasons were not sufficient. The court in Remington Georgetown Inc. v. Tarion Warranty Corporation, 2025 ONSC 1285, at paras. 37-40, confirmed that an arbitrator’s reasons for decisions must provide a logical and transparent basis for the decision, but need not review every detail of the hearing. The reasons for an arbitrator’s decision should allow the reviewing court to understand why the arbitrator made his decision and determine whether it was within a range of acceptable outcomes. The court stated:
[37] Section 38(1) of the Arbitration Act requires arbitrators to provide reasons for decision. It is well established that the written reasons need not review each and every argument raised by the parties, and need not recite each and every statute or judicial decision referenced by the parties. “Rather, the reasons must show, when read in context of the record and the submissions, that the trier has “seized the substance of the matter”. The degree of detail in any particular case may vary with the circumstances”.
[38] In fact, the adequacy or inadequacy of reasons is not generally a sufficient ground for quashing an otherwise valid decision. The Supreme Court of Canada has held that the purpose of reasons is to demonstrate “justification, transparency and intelligibility”. The Supreme Court has gone on to explain that, “[I]f the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met”.
[39] I find that there is no basis here to challenge the arbitrator’s reasons. As indicated at the outset, arbitrator Anschell provided 19 pages of reasons. In the course of those reasons, she discussed the evidentiary record, engaged in appropriate fact finding, addressed the grounds set out in the Request for Arbitration, and considered the Applicant’s various arguments.
[40] In short, the arbitrator’s reasons provided a logical and transparent basis for her decision. The Applicant has failed to identify anything in particular that is lacking in those reasons. It is apparent that it is the conclusion, and not the reasons, that the Applicant dislikes. But as already explained, disagreement with the arbitrator’s conclusion is not a proper basis for setting aside the decision. [Emphasis added.] [Citations omitted.]
[42] I find that these conclusions are applicable in this appeal.
[43] The Appellants were not treated unfairly, denied natural justice, or denied procedural fairness. The arbitrator provided a logical and transparent explanation for his conclusions, which I find were within a range of acceptable outcomes based on the evidence before him.
[44] As a result of my above noted findings, it is not necessary for the court to consider whether the Arbitrator made the errors of law which would have been considered had the Appellant’s had the right of appeal upon which they relied.
[45] I dismiss the Appellants’ motion for an order granting the Respondents (Appellants) leave to appeal the Arbitration Award under section 45(1) of the Arbitration Act.
[46] I further dismiss the Appellants’ motion for an order setting aside the Arbitration Award under section 46(1) of the Arbitration Act.
Costs
[47] The parties have agreed on the amount of costs to be awarded to the successful party Respondent on this appeal, and I so order.
Pollak J.
Released: April 30, 2026
CITATION: YCC No 1311 v. Star Woodworking Ltd., 2026 ONSC 2381
COURT FILE NO.: CV-25-734627
DATE: 20260430
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YORK REGION STANDARD CONDOMINIUM CORPORATION NO. 1311
Respondent
– and –
STAR WOODWORKING LTD., 2274461 ONTARIO LTD., MARYAM KHALEGHI, NOAH IMPROVE INC., RICH POINT GROUP INC., JUDAH HOLDINGS LTD. and 2527041 ONTARIO INC.
Appellants
REASONS FOR DECISION
Pollak J.
Released: April 30, 2026