Canada: Toronto Standard Condominium Corporation No. 2130 v. York Bremner Developments Limited: No Appeal From Application Judge’s Appointment Of An Arbitrator

In its November 17, 2014 decision in Toronto Standard Condominium Corporation No. 2130 v. York Bremner Developments Limited, the Ontario Court of Appeal held that there is no right to appeal an application judge’s decision appointing an arbitrator pursuant to the Arbitration Act, 1991. This is the case even in the event of a dispute over the arbitrator’s jurisdiction to determine the issues. The Court distinguished this from a situation in which an arbitration agreement was not enforceable. Appellants are not without a remedy in these circumstances, however, as they may appeal the arbitrator's ruling on the issue of jurisdiction to the Superior Court.

The case emerged from a complicated condominium dispute, where the contractual relationship between the parties included a contract with an arbitration clause. After an application was made to the Superior Court to appoint an arbitrator, the appellants argued that none of the issues in the notice of arbitration fell within the ambit of the arbitration agreement and were accordingly outside the jurisdiction of the arbitrator. The application judge held that as at least one issue arguably fell within the ambit of the arbitration clause, the arbitrator should be appointed and determine his jurisdiction. Though the appellants participated actively in the proceeding before the arbitrator (who determined he had jurisdiction over six issues), they appealed the application judge's decision appointing the arbitrator.

The Court of Appeal quashed the appeal, holding that there is no right to appeal the appointment of an arbitrator in these circumstances:

[21]      [...] the Condominium Corporation's grounds for the appointment of the arbitrator included s. 10 of the Arbitration Act, 1991. Section 10(1) provides that:

Appointment of Arbitral Tribunal

10. (1) The court may appoint the arbitral tribunal, on a party's application, if,

(a) the arbitration agreement provides no procedure for appointing the arbitral tribunal; or

(b) a person with power to appoint the arbitral tribunal has not done so after a party has given the person seven days' notice to do so.

[22]      The Appellants accepted that s. 10(1) entitled the application judge to appoint an arbitrator. They did not take issue with the Condominium Corporation's reliance on s. 10(1) in putting the matter before the application judge. They only took issue with the scope of the matters to be referred to the arbitrator. In our view, it is not open to the Appellants to argue at this stage that the arbitrator was not appointed under s. 10(1) of the Arbitration Act, 1991.

[23]       Accepting, as we do, that the arbitrator was appointed by the application judge under s. 10(1) of the Arbitration Act, 1991, s. 10(2) bars the Appellants' attempt to appeal the application judge's judgment. That section provides as follows:

No appeal

(2) There is no appeal from the court's appointment of the arbitral tribunal.

[24]       This case is very different from Brennan v. Dole (2005), 11 B.L.R. (4th) 169 (Ont. C.A.), where an appeal from a court order appointing an arbitrator was allowed because this court held that the purported arbitration agreement was not enforceable by the respondents against the appellants.

[25]       The Appellants are not without a remedy. They have – as they were entitled to – appealed the arbitrator's ruling on the issue of jurisdiction to the Superior Court of Justice pursuant to s. 17(8) of the Arbitration Act, 1991.

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