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
[...] 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
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.
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
 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:
(2) There is no appeal from the
court's appointment of the arbitral tribunal.
 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.
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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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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