COURT OF APPEAL FOR ONTARIO

CITATION: Stilwell v. World Kitchen Inc., 2014 ONCA 770

DATE: 20141104

DOCKET: C57348 C57372

Gillese, Pepall and Hourigan JJ.A.

BETWEEN

Lanny Stilwell and Moira Neale

Plaintiffs (Respondents)

and

World Kitchen Inc. and Corning Incorporated

Defendant (Appellants)

Paul J. Pape and Sanam Goudarzi, for the appellant,
    World Kitchen Inc.

Young Park, for the appellant, Corning Incorporated

Christopher Morrison and Paul J. Cahill, for the
    respondents

Heard:  August 19, 2014

On appeal from the judgment of Justice Ian F. Leach of
    the Superior Court of Justice, sitting with a jury, dated June 12, 2013.

Hourigan J.A.:

[1]

World Kitchen Inc. (World Kitchen) and Corning Incorporated
    (Corning) appeal the judgment of Justice Leach, sitting with a jury, awarding
    the respondents aggregate damages of $1,157,850 for negligence related to
    product liability.

[2]

For the reasons that follow, I would dismiss the appeal in its entirety,
    save for the appeal of the award of $25,000 in aggravated damages, which award I
    would set aside.

Background

[3]

On September 11, 2000, the respondent, Lanny Stilwell, was washing a
    glass Visions brand Dutch oven (the "Dutch oven" or the
    "pot") in his sink when he heard a popping noise and the pot shattered
    in his hands (the "incident"). As a result of the incident, Mr.
    Stilwell suffered severe injuries to his wrist.

[4]

In January 2002, Mr. Stilwell and his common law wife, the respondent
    Moira Neale, commenced an action against World Kitchen, alleging negligence and
    breach of warranty. Corning was added as a defendant in August 2008. The action
    proceeded as a jury trial.

[5]

Corning brought a motion before the trial judge, in the absence of the
    jury, to dismiss the claim against it on the basis that it was commenced after
    the expiry of the six-year limitation period and was, therefore, statute
    barred. In oral reasons, the trial judge dismissed the motion, concluding:

In my view, having regard to all of the circumstances of the
    case, and having particular regard to the information available to the
    plaintiffs and their counsel on or before August 18th, 2002, I cannot find that
    the plaintiffs and their counsel knew or ought to have known all the material
    facts concerning the advisability of a formal claim against Corning
    Incorporated more than six years prior to advancement of that claim in 2008.
    The applicable limitation period accordingly had not commenced and run its course
    prior to the plaintiffs adding Corning Incorporated to the litigation.

[6]

The jury found the defendants (appellants on appeal) 75% at fault for their
    failure to adequately warn of the dangers associated with the Dutch oven. Mr. Stilwell
    was found to be 25% at fault for the incident.

[7]

The jury assessed Mr. Stilwells damages at $1,132,850, including
    $25,000 in aggravated damages. Ms. Neales damages were assessed at $25,000 for
    loss of care, guidance and companionship.

[8]

The jury provided the following answer with respect to the particulars
    of its finding of negligence:

Not clearly stated the difference between deep versus minor
    scratches.

Not identified what constitutes a deep scratch and when the
    consumer should contact manufacturer.

Warning due to accidental breakage from impact and subsequent
    potential injury should be further emphasized in manual warning and included on
    exterior of box.

[9]

With respect to its finding of contributory negligence, the jury stated:

Based on the balance of probability it is likely that an impact
    occurred. Evidence from the expert witnesses indicates that a breakage was most
    likely due to mechanical force such as an impact plus an internal stress.

In addition Mr. Stilwell was experiencing a stressful day and
    Mr. Stilwell admitted that it was his first time washing the pot (4.5 l vision
    dutch oven). The pot was large (4.5 l) the obstruction of the tap, plus
    dimensions of the sink increased the likelihood of an impact occurring.

[10]

World
    Kitchen and Corning appeal the judgment made in accordance with the jury
    verdict. Corning also appeals the dismissal of its motion to dismiss.

Positions of the Parties

[11]

World
    Kitchen and Corning submit that the jury verdict should be set aside because
    there was no evidence to support the finding that the alleged failure to
    adequately warn the respondents caused or contributed to the incident. In
    particular, they assert that the respondents failed to adduce any evidence that
    they would have acted differently had they been warned of the potential danger.
    Moreover, they argue that there is no causal connection between the types of
    warnings the jury referenced in the verdict sheet and the incident.

[12]

The
    appellants further submit that the trial judge erred in his instruction to the
    jury regarding aggravated damages. They allege that the trial judge failed to
    advise the jury that, in order to award such damages, they must be satisfied
    that any increased injury to the respondents due to the manner in which the
    injury was inflicted must have occurred as a result of misconduct by the
    appellants.

[13]

Corning
    also submits that the trial judge erred in finding that the action was
    commenced against it within the applicable six-year limitation period.
    Cornings position is that the trial judge articulated too high a threshold for
    the level of actual or deemed knowledge required to commence the running of a
    limitation period.

[14]

The
    respondents submit that the appellants argument on causation amounts to an invitation
    to this court to usurp the role of the jury as trier of fact and to make
    factual findings that are inconsistent with the jurys answers. Their position
    is that the findings of the jury were well supported on the evidence and there
    is, therefore, no basis for appellate interference.

[15]

With
    respect to the trial judges ruling on the limitation period defence, the
    respondents submit that the trial judge articulated and properly applied the
    correct test.

[16]

The
    respondents concede that the trial judge erred in his instruction to the jury
    on the issue of aggravated damages. However, they argue that the only effect of
    the misdirection was that the jury was instructed to consider increasing the
    award for general damages to compensate Mr. Stilwell for the manner in which his
    injury occurred. Therefore, they submit that the $25,000 in aggravated damages
    should be added to the general damages award.

Issues

[17]

The
    appeal raises the following issues:

(i) Did the trial judge err
    in finding that the respondents claim was not statute barred?

(ii) Should the jurys
    liability finding be set aside?

(iii) Should the jurys
    award of $25,000 in aggravated damages be set aside or added to the award for
    general damages?

Analysis

(i)      Limitation Period

[18]

Corning
    submits that where the identity of a potential defendant is in question, the
    limitation period commences when the plaintiff has, or is deemed to have,
prima
    facie
grounds to infer that the relevant acts or omissions were caused by a
    particular party:
Kowal v. Shyiak,
2012 ONCA 512, 13 C.L.R. (4th) 7, at
    para. 18.

[19]

Corning
    concedes that the determination of when the plaintiff has, or is deemed to have,
    such
prima facie
grounds is primarily a question of fact and that the corresponding
    standard of review by an appellate court is one of palpable and overriding
    error. However, Corning argues that the articulation and application of this
    legal threshold must be reviewed on a standard of correctness. The motion
    judge, it submits, erred in articulating too low a standard of reasonable
    diligence on the part of the respondent in investigating its potential claim. Corning
    claims that this error is extricable from the trial judges findings of fact
    and is, therefore, reviewable according to a standard of correctness.

[20]

I
    would reject this argument for the following reasons.

[21]

Counsel
    for Corning conceded in oral argument that the trial judge articulated the
    correct legal issue in his ruling when he stated that the real question to be
    answered is whether the plaintiffs and/or their counsel learned that they had a
    cause of action against Corning Incorporated, or through the exercise of
    reasonable diligence ought to have learned that they had a cause of action
    against Corning Incorporated prior to August 19th, 2002.

[22]

Corning
    submits that the trial judge subsequently erred when he stated that the
    material fact in question was the identity of the party likely to bear
    responsibility for that alleged Visions Dutch oven, and when he concluded that
    he could not find that the respondents knew or ought to have known the
    material facts concerning the advisability of a formal claim against Corning.

[23]

In
    my view, the trial judge made no error in principle in his analysis of the
    limitation defence. There is nothing in the impugned comments of the trial
    judge, or in his ruling as a whole, that evidences any change in the
    formulation of the test. I reject Cornings submission that the phrases likely
    to bear responsibility or advisability of a formal claim indicate any
    material departure from the
prima facie
threshold.

[24]

Having
    failed to identify a legal error, Cornings argument essentially amounts to an
    attack on the trial judges factual findings that supported his conclusion that
    the respondents exercised reasonable diligence in attempting to identify the
    proper defendants. In my view, the trial judges factual findings were amply
    supported by the evidence, including:

(i) the Internet searches
    conducted by the respondents and their counsel, which suggested World Kitchen
    was responsible for the Vision products;

(ii) the email
    correspondence between the respondents and World Kitchen, which also suggested
    World Kitchen, if anyone, was responsible for the products;

(iii) the letter from
    counsel for World Kitchen to counsel for the respondents dated March 19, 2002,
    which stated that the correct defendant is World Kitchen Inc.;

(iv) the steps taken by
    counsel for the respondents during the ensuing examinations for discovery to
    follow up and confirm that the correct defendant had been named; and

(v) the information in the
    trademark search commissioned by counsel for the respondents, which, in the
    words of the trial judge, indicated a progression from various Corning
    entities to a World Kitchen entity.

[25]

Based
    on this evidence, the trial judge concluded that there was a good deal of
    support for the plaintiffs position that, in these early stages of the
    investigation and litigation, the available information pointed to World
    Kitchen as the entity likely to bear responsibility, if any, for the Visions
    cookware.

[26]

Contrary
    to the submission made by counsel for Corning, the trial judge did not ignore
    the evidence that Corning says should have alerted the respondents to a
    potential claim. Rather, the trial judge considered that evidence and declined
    to draw the inferences urged upon it by Corning.

[27]

In
    considering Cornings arguments, the trial judge also recognized the practical
    difficulties the respondents faced in trying to identify the correct defendant
    in the context of a very complicated corporate organizational structure. In
    these circumstances, the trial judge concluded that the respondents' reliance
    on the representation by World Kitchen that they had sued the correct party was
    reasonable.

[28]

On
    the evidence, it was open to the motion judge to come to the conclusion he did
    and Corning has failed to identify any palpable or overriding error in the
    trial judge's limitation period analysis. There is, therefore, no basis for
    appellate interference with the motion judge's ruling regarding the limitation
    period.

(
ii)     Causation
    Finding

[29]

Other
    than the issue of aggravated damages, which will be discussed below, the
    appellants do not take issue with the jury charge. Rather, the focus of their
    argument is that the jurys findings are inconsistent with the evidence presented
    at trial. In particular, the appellants submit that there was no evidence of
    causation between the alleged failure to warn and the incident.

[30]

In
    support of their position, the appellants point to the answers from the jury in
    the verdict sheet. They submit that the evidence does not support a causal
    connection between the types of warnings the jury referenced in its answer and
    the incident. Their position is that since the jury did not find any negligence
    in the design or manufacture of the pot and there was no evidence of scratches,
    a warning to discontinue use of the pot if it was scratched would have had no
    effect.

[31]

The
    appellants also argue that a more comprehensive warning would not have altered
    the behaviour of Ms. Neale, who, according to the evidence, was extremely
    safety conscious, or the behaviour of Mr. Stilwell, who never read the warnings.

[32]

In
    considering these submissions, it is important to have regard to two well-developed
    and long-standing principles of law related to civil jury trials.

[33]

First,
    the standard of review of civil jury verdicts is exceptionally high. A civil
    jurys verdict should be set aside only where it is so plainly unreasonable and
    unjust that no jury reviewing the evidence as a whole and acting judicially
    could have arrived at the verdict:
Boucher v. Wal-Mart Canada Corp.
,
    2014 ONCA 419, 120 O.R. (3d) 481, at para. 49;
Goodwin (Litigation Guardian
    of) v. Olupona
, 2013 ONCA 259, 305 O.A.C. 245, at para. 23.

[34]

Second,
    a jurys verdict is entitled to a fair and liberal interpretation in light of
    the evidence and of the circumstances:
Malone v. Trans-Canada Airlines
,
    [1942] O.R. 453, at para. 25 (C.A). Answers by a jury should be given the
    fullest possible effect and supported, if possible, by any reasonable
    construction. A new trial should be ordered only where the jury seems to have
    confused  the issues at trial, it is doubtful whether the jury paid attention
    to the real point in issue, and the questions answered or unanswered leave the
    real issue in doubt and ambiguity:
Jamieson v. Harris
(1905), 35 S.C.R.
    625, at para. 2;
Graham v. Regent Motors Ltd.
, [1939] O.J. No. 163,
    at para. 9 (Ont. H. Ct. J.).

[35]

This
    approach to the review of jury answers is entirely justified on policy grounds.
    Our courts recognize that civil juries are made up of laypeople who are
    untrained in the law, and that allowances for this lack of training must be
    made in considering their answers to questions. It is also important to
    remember that civil juries are instructed not to give reasons for their
    decisions, so their answers must be read in this context.

[36]

The
    appropriate degree of judicial deference to be applied in the consideration of
    jury answers and verdicts was described by Laskin C.J.C. in his dissent in
Wade
v.
C.N.R
., [1978] 1 S.C.R. 1064, at pp. 1069-1070:

Appeal Courts do not fine-comb jury answers
    but accord them the respect of a common sense interpretation even where there
    may be some ambiguity in the answers. It is always timely to be reminded that
    juries do not write reasons for judgment, and their answers must be taken
    against the background of the evidence from which they are entitled to select,
    without manifesting their selection, what is credible, what is significant,
    what is persuasive to them. It is very often easy for an appellate Court, in
    the leisurely scrutiny of the transcript, to find significance in pieces of
    evidence to contradict jury findings, and in so doing to usurp the jurys
    function. What an appellate Court may believe from a reading of the transcript
    may be the very things which a jury disbelieved or believed in part only. It is
    one thing to interfere with a jurys verdict where there is simply no evidence
    to support its findings or to support a critical one; it is a different thing,
    and not to be encouraged, to interfere with its findings where there is
    evidence, however slight, on which they may be based, but where because of
    offsetting evidence a question of credit and weight arises. These are matters
    for the jury alone.

[37]

With
    these principles in mind, I turn to a consideration of the jurys verdict in
    the present case. As a starting point, it is useful to put the jurys verdict
    and their answers to the questions posed in the context of the evidence they
    heard at trial.

[38]

There
    was evidence that prior to Ms. Neale's purchase of the pot, the appellants were
    aware of over 2,000 reported injuries related to the use of the Visions
    products.

[39]

The
    warning regarding breakage was not found in the warning section of the manual
    or on the outside of the box, but in the Remember section of the manual. It
    indicated only that the product was subject to breakage if dropped or subjected
    to hard impact.

[40]

The
    evidence at trial established that Ms. Neale was extremely careful in her use
    and care of the product. She never stacked the pot, never used the pot in a
    manner that was contrary to the instructions (e.g. deep frying), never dropped or
    banged the pot, and never washed it in the dishwasher.

[41]

At
    the time of the incident, Mr. Stillwell was in the process of hand-washing the
    Dutch oven. This care for the product was specifically mandated by the
    product's instruction manual.

[42]

The
    glass experts provided evidence at trial that the Dutch oven could have been
    suffering from an internal stress; however, they disagreed about the likelihood
    that an internal stress was, in fact, present. The appellants' expert opined
    that there likely was no internal stress while the respondents expert held the
    opposite view.

[43]

There
    was also evidence that, following the incident, Ms. Neale immediately stopped
    using the cookware. She did not throw out the other pots in the set because she
    was fearful that someone would find them and use them, which she believed would
    be unsafe.

[44]

I
    turn now to the appellants argument that there is no connection between the
    alleged failure to provide a better warning regarding deep versus minor
    scratches and the incident.

[45]

I
    disagree with this submission. There were three theories advanced at trial
    regarding the cause of the breakage: an impact hard enough to break the Dutch
    oven, an impact plus an internal stress, and a spontaneous break. There was
    expert evidence that a deep scratch could cause or be a sign of internal
    stress.

[46]

On
    a fair and liberal reading of the verdict sheet, it appears that the jury
    rejected Mr. Stilwells testimony that he did not bang the pot when he was
    cleaning it and accepted the middle-ground theory that the breakage occurred
    due to a combination of an internal flaw and an impact. This finding was open
    to the jury to make on the evidence before them.

[47]

It
    was also open to the jury to find that, despite the fact that there was no
    evidence of anyone noticing a deep scratch in the Dutch oven, such a scratch
    could have been present and contributed to the internal stress.

[48]

The
    appellants argue that because the respondents were aware the product would
    break if struck hard enough, and because Ms. Neale was extremely careful with
    the Dutch oven, an enhanced warning would have made no difference in how the
    respondents used and cared for the product.

[49]

I
    accept the submission of the appellants that there was no direct evidence as to
    how the respondents would have acted had an adequate warning been given.
    However, this does not end the analysis. The jury, like any trier of fact, was
    permitted to make inferences based on the evidence.  Specifically, it was open
    to the jury to infer that Ms. Neale would not have purchased the product had
    she been adequately warned.

[50]

A
    sufficiently clear product warning may be a significant factor in a consumer's
    decision to purchase a product. Based on the evidence that Ms. Neale was
    extremely cautious in her use and care of the product, there was an available
    inference that she would not have purchased the cookware had she been
    adequately warned that the combination of an internal stress and an impact while
    caring for the product in the manner recommended by the manufacturer could
    cause catastrophic failure, exposing the user to risk of significant injuries.

[51]

In
    my view, there was an evidentiary basis for the conclusion reached by the jury.
    While a different jury, or a judge sitting alone, may have drawn different
    inferences and reached different conclusions, I am not satisfied that the
    verdict is plainly unreasonable and unjust or that, in reaching it, the jury
    was not acting judicially. Therefore, I would not give effect to this ground of
    appeal.

(iii)    Aggravated Damages

[52]

It
    is common ground among the parties that the trial judge erred in his charge to
    the jury on the issue of aggravated damages. The trial judge instructed the
    jury that if they found that Mr. Stilwell suffered anxiety, nervousness and an
    initial fear of glass objects as a result of the manner in which the injury
    occurred, an award of aggravated damages was appropriate to compensate him for
    those injuries. The trial judge erred in failing to advise the jury that, in
    order to award such damages, they had to be satisfied that any increased injury
    to Mr. Stilwell due to the manner in which the injury was inflicted had to
    be tied to  that is, be a result of  particularly reprehensible misconduct by
    the appellants.

[53]

The
    respondents submit that, while the types of damages described in the jury
    charge are not compensable as aggravated damages, they are recoverable as
    non-pecuniary general damages flowing from the respondents negligent conduct.
    Consequently, they submit, that the only error made by the trial judge was in
    mislabelling the damages.

[54]

I
    cannot accept the respondents submission on this point. The fact remains that
    the jury was provided with an incorrect instruction regarding aggravated
    damages. They were also provided separate instructions regarding general
    non-pecuniary damages and awarded Mr. Stilwell $100,000 under this head of
    damages.

[55]

It
    is entirely speculative to assume, as the respondents invite us to do, that had
    they been properly instructed, the jury would have increased the general
    damages by $25,000.

[56]

Therefore,
    I would set aside the award of aggravated damages.

Disposition

[57]

I
    would allow the appeals in part and set aside the $25,000 aggravated damages
    award.

[58]

With
    respect to costs, the respondents submitted that, if successful on all issues,
    they should be entitled to total partial indemnity costs of approximately
    $40,000, and if they were not successful on the aggravated damages issue, then
    they should be entitled to total partial indemnity costs of $30,000. The
    appellants did not take issue with these figures. Accordingly, I would order
    that the appellants are jointly and severally liable for the respondents costs
    in the amount of $30,000, all inclusive.

Released: November 4, 2014 E.E.G.

C.
    William Hourigan J.A.

I
    agree E.E. Gillese J.A.

I
    agree S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Terceira v. Labourers International Union of North
    America,

2014 ONCA 839

DATE: 20141126

DOCKET: C58059 & C58146

Feldman, Blair and Pepall JJ.A.

BETWEEN

Durval
    Terceira, Jaime Melo, Michael OBrien,

Gaetano
    Strazzanti and Cesar Daniel Avero

Applicants
    (Respondents)

and

Labourers International Union of North America
,

Universal Workers Union  Labourers International Union of
    North America

Local 183
, and Service Employees International Union
    Local 2,

Brewery
    General and Professional Workers Union

and
    Ontario Labour Relations Board

Respondents (
Appellants
)

Paul J.J. Cavalluzzo and Elichai Shaffir, for the
    appellant Labourers International Union of North America

Ian J. Roland and Debra Newell, for the appellant
    Universal Workers Union  Labourers International Union of North America Local
    183

Tim Gleason and Sean Dewart, for the respondents Durval
    Terceira, Jaime Melo, Michael OBrien, Gaetano Strazzanti and Cesar Daniel
    Avero

Leonard Marvy, for the Ontario Labour Relations Board

Sara Blake and Kisha Chatterjee, for the intervener the
    Attorney General for Ontario

Heard: September 11, 2014

On appeal from the order of the Divisional Court (Justices
    Anne M. Molloy, Ian V.B. Nordheimer and Alison Harvison Young), dated June 6,
    2013, with reasons reported at 2013 ONSC 3344, 58 Admin L.R. (5th) 140,
    quashing the decisions of the Ontario Labour Relations Board, dated March 30,
    2012, and August 29, 2012.

Pepall J.A.:

Introduction

[1]

The main issue on this appeal is the application of the test governing a
    request for the disqualification of an Ontario Labour Relations Board
    Vice-Chair on the basis of reasonable apprehension of bias in circumstances
    where he had previously acted for one of the parties appearing before the Board.

[2]

The appellant, the Labourers International Union of North America
    (LIUNA), is an international trade union based in Washington, D.C.  The
    appellant, the Universal Workers Union  Labourers International Union of North
    America Local 183 (Local 183), is a local trade union situated in Toronto and
    is affiliated with, and chartered by, LIUNA.

[3]

On this appeal, the appellants take the position that in disqualifying
    Vice-Chair Shouldice of the Ontario Labour Relations Board (OLRB), the
    Divisional Court incorrectly applied the test in
MacDonald Estate v. Martin
,
    [1990] 3 S.C.R. 1235 relating to conflict of interest of a lawyer and therefore
    incorrectly quashed the OLRB decision.  They say that the correct test to be
    applied to an adjudicator for reasonable apprehension of bias is described in
Committee
    for Justice v. National Energy Board
, [1978] 1 S.C.R. 369 and
Wewaykum
    Indian Band v. Canada
, 2003 SCC 45, [2003] 2 S.C.R. 259.  The OLRB and the
    intervener, the Attorney General for Ontario, support the position of the
    appellants on this issue.

[4]

The respondents, Durval Terceira, Jaime Melo, Michael OBrien, Gaetano
    Strazzanti and Cesar Daniel Avero, are former employees, members and officers
    of the appellant, Local 183 (the Employees).  They brought proceedings before
    the OLRB that were dismissed by the Vice-Chair. They then brought an
    application for judicial review before the Divisional Court.  That court
    quashed the OLRB decisions on the grounds that the Vice-Chair was in an actual
    or perceived conflict of interest.  The respondents agree that the Divisional
    Court applied the incorrect test but submit that the correct test yields the
    right result and that the OLRB decisions were properly quashed.

[5]

As the Divisional Court determined that the decisions of the Vice-Chair
    should be quashed on the grounds of conflict of interest, it did not rule on
    the remaining grounds advanced by the respondents.  On appeal, all parties
    request that this court address those grounds.

[6]

For the reasons that follow, I would set aside the decisions of the
    Divisional Court disqualifying the Vice-Chair and would reinstate the
    Vice-Chairs decisions on the remaining grounds as well.

Facts

(a)

Background

[7]

The Employees were elected to the board of Local 183 in September 2007.
     In June 2011, they were defeated in a contested election by the members.  After
    the election, the new executive took the position that the Employees had
    engaged in misconduct while in office.  On July 11, 2011, Local 183 terminated
    the employment of the Employees.

(b)

OLRB Application and Court Actions

[8]

On July 29, 2011, the Employees commenced an application (the
    Application) before the OLRB pursuant to s. 96 of the
Labour Relations
    Act
, S.O. 1995, c. 1, asserting that LIUNA and Local 183 had violated certain
    sections of the Act.  Among other things, the Employees submitted that LIUNA
    had improperly interfered with the election and that they were subject to
    unlawful reprisals including the termination of their employment.  They sought
    reinstatement of employment, reinstatement to Local 183s executive board,
    compensation for losses, and an order for aggravated and punitive damages.

[9]

The Application was one of 11 before the OLRB relating to terminations
    of employment following Local 183s election.  Ten of these (one of which
    involved Mr. OBrien and the four other Employees) were consolidated and heard before
    Vice-Chair Shouldice over the course of four weeks.  They were ultimately
    settled and withdrawn.  No concerns about any apprehension of bias were ever
    raised in those proceedings.

[10]

Additionally,
    court proceedings undertaken by Local 183 and the Employees that relate to the
    termination of the employment of the Employees and to allegations of financial
    impropriety are ongoing.

(c)

Preliminary Objections

[11]

The
    appellants raised certain preliminary objections.  LIUNA and Local 183 asserted
    that the Employees Application should be dismissed without a hearing on the
    merits on the basis of
res judicata
, abuse of process, absence of a
    valid labour relations purpose, timeliness, and lack of standing.  A hearing to
    argue these preliminary objections was convened before the Vice-Chair on
    December 19, 2011.

(i)

Employees Objection

[12]

At
    the outset of the December 19, 2011 hearing, the Employees raised their own
    preliminary issue.  They requested that the Vice-Chair recuse himself on the
    basis of a reasonable apprehension of bias.

[13]

Counsel
    for the Employees submitted that the Vice-Chair had acted for Mr. OBrien in a
    dispute with Local 183 and that the terms and conditions of his former
    employment with an entity related to Local 183 and the calculation of his past
    service were remedial issues in the Application.  Furthermore, they asserted
    that there was potential for the Vice-Chair to become a witness in the Application.

[14]

In
    his reasons for dismissing the request for recusal, the Vice-Chair stated that
    about seven years ago, he had acted for Mr. OBrien in an employment dispute with
    Local 183 and its benefits administrator.  The retainer resulted in a Statement
    of Claim being issued on behalf of Mr. OBrien.  The litigation proceeded no
    further than the pleadings stage and the claim was discontinued as a result of
    a settlement.  The Vice-Chair stated that he had no present recollection of any
    of the terms of Mr. OBriens employment.  Further, the Employees would have
    production of documents from LIUNA and Local 183 by the time any remedial
    issues arose in the Application.

[15]

The
    Vice-Chair declined to recuse himself on the basis of reasonable apprehension of
    bias.  In his view, an informed person, viewing the matter realistically and
    practically, and having thought the matter through, would not think that there
    was any possibility of bias.  His brief endorsement contemplated further written
    reasons.

[16]

In
    his subsequent written reasons dated March 30, 2012, the Vice-Chair noted that
    if, after the merits of the Application were adjudicated, it was determined
    that Mr. OBrien was entitled to compensation, it was unclear that any such
    compensation would be determined by reference to his length of service. The
    relief claimed by the Employees in their Application disclosed no claim for
    damages based on Mr. OBriens length of service.  Furthermore, if length of
    service did have significance, Mr. OBrien could testify on the issue at the
    hearing, supported, if necessary, by documentary disclosure by Local 183.  The
    Vice-Chair stated that he had no first-hand knowledge of the circumstances
    surrounding Mr. OBriens employment with Local 183.  These were objective facts.
    He also observed: There was no suggestion by counsel for the applicants [the Employees]
    that I am in possession of confidential information from Mr. OBrien that would
    negatively affect his interests or the interests of the other applicants [the Employees]
    in this proceeding.

(ii)

LIUNAs and Local 183s Objections

[17]

The
    Vice-Chair then considered the proceeding before him, that is, the preliminary
    objections of LIUNA and Local 183.  He accepted the submissions of LIUNA and
    Local 183 that the Employees Application should be dismissed because an
    inquiry into the Application would serve no labour relations purpose.

[18]

Quite
    apart from the merits, on the issue of remedies, he would not reinstate Messrs.
    Terceira, Avero and Melo as they now worked for a rival union and reinstatement
    would give rise to a conflict of interest.  Furthermore, he would not reinstate
    any of the Employees because Local 183 would be holding its next election
    before the end of the litigation.  Lastly, the OLRB did not award aggravated or
    punitive damages or legal fees.  No labour relations purpose would be served by
    a hearing of the Employees Application and he accordingly dismissed it.

(d)

Request for Reconsideration

[19]

The
    Employees then filed a Request for Reconsideration.  In their Request for
    Reconsideration, the Employees made two main submissions: the Vice-Chairs
    relationship to Mr. OBrien gave rise to a reasonable apprehension of bias and
    they were denied natural justice.  In reasons dated August 29, 2012, the
    Vice-Chair rejected the Employees request.

[20]

First,
    the Vice-Chair considered the Employees argument that there was a reasonable
    apprehension of bias because the Vice-Chair had knowledge of Mr. OBriens contract
    and past service with Local 183. The Vice-Chair wrote that he had no such
    knowledge as alleged and, in any event, these facts were not in issue in the
    proceeding.  He observed that the Employees did not explain at the hearing how
    those facts arguably relate to any issue in dispute in this proceeding, and
    they failed to address that question in their Request for Reconsideration.  He
    also noted that they had not indicated what first hand evidence he could offer as
    a witness that arguably would be relevant to any issue raised in the proceeding
    before him.

[21]

Secondly,
    the Vice-Chair rejected the Employees submission that there had been a breach
    of natural justice.  He dismissed the Employees claim that he had refused to
    hear oral evidence, stating that at no time did he refuse to hear evidence.  He
    also rejected the Employees submission that they did not have an opportunity
    to comment on the decision of
Wal-Mart Canada Corp.
(2011), 197 C.L.R.B.R. (2d) 104 (OLRB)
, which
    he had referred to in his reasons.  The decision contained a concise summary of
    already well-known principles.

[22]

He
    also dismissed the Employees claims that he had made factual findings
    unsubstantiated in the evidence. He concluded that he was competent to estimate
    the anticipated length of the proceeding, which he found would amount to well
    over 100 days, and would come at a staggering financial cost to the parties and
    the public.  He noted that his conclusion on mitigation was limited to a
    finding that there had been mitigation by three of the five Employees and that
    he had made no reference to quantum.  He further noted that based on the
    record, he was entitled to conclude that that the Employees were pursuing the
    complaint as a group.

[23]

He
    dismissed all the arguments raised in support of the Request for
    Reconsideration.

(e)

Divisional Court

[24]

The Employees sought judicial review of the March 30 and August 29, 2012
    decisions and asked that they be quashed.  The Divisional Court concluded that
MacDonald
    Estate
was applicable, misuse of confidential information was presumed,
    and the Vice-Chair was in an actual or perceived conflict of interest.  Although
    reference was made to appearance of bias, neither the strong presumption of
    impartiality that favours an adjudicator nor the contextual framework was
    mentioned.  The Divisional Court quashed both decisions and remitted the matter
    back for reconsideration by a differently constituted OLRB.

[25]

This
    court subsequently granted leave to appeal the Divisional Court order on
    December 5, 2013.

Analysis

(i)      Reasonable
    Apprehension of Bias

[26]

Before
    this court, it was accepted by all parties that the test set forth in
Wewaykum
was applicable and not that in
MacDonald Estate
.  This court and
    others, as well as the OLRB, have consistently applied a reasonable
    apprehension of bias test to address adjudicators prior professional
    relationships:  see, for example,
Rando Drugs Ltd. v. Scott
, 2007 ONCA
    553, 86 O.R. (3d) 641 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007]
    S.C.C.A. No. 494;
Re Marques

and

Dylex Ltd.
(1977), 18 O.R. (2d) 58 (Ont. Div. Ct.)
;
Brick
    and Allied Craft Union, Local 5 v. International Union of Bricklayers and
    Allied Craftworkers, Local 6

(2000),
    65 C.L.R.B.R. (2d) 287 (OLRB)
; and
Re Suguitan
, 2006 CanLII 2415 (S.C.)
.

[27]

The
    distinction between a claim of conflict of interest by a lawyer and reasonable
    apprehension of bias by an adjudicator is significant for a number of reasons.
    In
MacDonald Estate
, which
addresses a lawyers potential conflict of interest, the Supreme Court found,
    at p. 1260, that the imparting of confidential information is presumed to
    occur.  In contrast, in
Wewaykum
,
    which
addresses a claim of reasonable apprehension of bias of an
    adjudicator, the Supreme Court established, at para. 59, that impartiality of
    the adjudicator is presumed.  Indeed, there is a strong presumption of judicial
    (or in this case adjudicative) impartiality and integrity:
Ontario
    Provincial Police v. MacDonald
,
2009 ONCA 805, 255 O.A.C. 376, at para 44.

[28]

The
    rules governing a lawyers conflict of interest stem, in part, from the
    existence of a fiduciary relationship and a duty of loyalty owed to the client:
Canadian National Railway Co. v. McKercher LLP
, 2013 SCC 39, [2013] 2
    S.C.R. 649, at paras. 19, 48;
R. v. Neil
, 2002 SCC 70, [2002] 3 S.C.R.
    631, at pp. 640-644 and
MacDonald Estate
, at pp. 1243-1246.  In
    contrast, the adjudicators duty is anchored in principles of procedural
    fairness including impartiality:
Wewaykum
, at paras. 57-59.

[29]

The
    distinction has important implications for the OLRB administrative function.  In
    selecting its adjudicators, the OLRB draws upon the expertise of practitioners
    from within the labour and employment bar.  A presumption of disqualification would
    operate to disregard this practical reality.  As stated by Morden J. in
Re
    Marques

and

Dylex Ltd
.,
    at p. 70
:
Most, if not all of those appointed [to the OLRB],
    are bound to have some prior association with parties coming before the
    Board.  Having said that, there will of course be instances of adjudicative
    bias as, for instance, where a decision-maker has a material pecuniary interest
    in a proceeding.

[30]

By
    applying the incorrect test, the Divisional Court failed to apply the
    presumption of impartiality.  The Divisional Court also failed to conduct a
    contextual analysis, which requires consideration of a number of factors that
    are relevant to the reasonable apprehension of bias test:
Wewaykum
,

at paras. 74-93.  The inquiry into an allegation of apprehension of bias by
    an adjudicator is highly fact-specific and is evaluated on an objective
    standard:
Wewaykum
, at paras. 73, 77.  The person considering the
    alleged bias must be reasonable and the apprehension of bias must be reasonable:
Wewaykum
, at para 73.  To succeed in this case, the Employees would
    have to establish that reasonable, right-minded and properly informed persons would
    think that the Vice-Chair was consciously or unconsciously influenced by his
    participation, about seven years earlier, in a matter resolved at the pleadings
    stage and of which the Vice-Chair said he had no knowledge of any parts
    material to the proceeding before him.

[31]

Given
    the foregoing, I must consider anew the issue of reasonable apprehension of
    bias. For the following reasons, I would reinstate the Vice-Chairs decision.

[32]

Fundamentally,
    the Employees failed to rebut the presumption of impartiality that attached to
    the Vice-Chair.

[33]

The
    proceeding before the Vice-Chair was a hearing dealing with preliminary motions
    submitted by LIUNA and Local 183 and, as such, was limited in scope.  Mr. OBriens
    length of service with an entity related to Local 183, if relevant at all, was
    only germane to the remedial stage of the Application.  This was not before the
    Vice-Chair.

[34]

No
    materials or record of any kind were filed in support of a claim of reasonable
    apprehension of bias.  This is particularly noteworthy given that the client
    was making the bias allegation rather than an opposing party who might not
    possess any such materials.  The Employees submit that they were unaware that the
    Vice-Chair was to preside until they entered the hearing room.  That said, they
    did not seek an adjournment.

[35]

Mr.
    OBriens retainer ended about seven years prior and settled at the pleadings
    stage.  It did not include unfair labour practice complaints against LIUNA or
    Local 183.  Examined objectively, there was an inadequate nexus between the
    factual matrix before the Vice-Chair and the prior retainer by Mr.  OBrien.  Furthermore,
    the Vice-Chair noted, at para. 7 of his reasons dated March 30, 2012:

There was no suggestion by counsel for the applicants that I am
    in possession of confidential information from Mr. OBrien that would
    negatively affect his interests or the interests of the other applicants in
    this proceeding.

As stated in
Rando Drugs Ltd.
, at para. 29, an
    adjudicators statement that he or she knew nothing about the case and had no
    involvement in it will ordinarily be accepted at face value unless there is
    good reason to doubt it.

[36]

On
    the issue of being a potential witness, there was no evidence of material facts
    on which the Vice-Chair might be called to testify nor was there any
    representation that Mr. OBrien would waive any solicitor/client privilege that
    might govern the Vice-Chairs anticipated testimony.

[37]

I
    therefore conclude that the Vice-Chairs decision on the issue of reasonable apprehension
    of bias should be reinstated.  As such, there is no need to address the
    appellants submission that the Employees waived their right to object given
    their failure to object during the four week hearing of the consolidated
    proceedings.

(ii)     Remaining Grounds

[38]

The Employees make two additional arguments in support of their position
    that the Vice-Chairs decisions should be quashed.

(a)     Procedural Fairness

[39]

The Employees allege that there was a denial of procedural fairness and
    advance various arguments in support of their position.

[40]

First,
    the Employees submit that the Vice-Chair determined that the Application should
    be dismissed because it served no labour relations purpose, yet none of the
    parties, nor the Vice-Chair, raised this issue during the hearing.  The Employees
    also argue that the parties were not given an opportunity to address the
    decision in
Wal-Mart Canada Corp.
, on which the Vice-Chair anchored
    his decision.  Accordingly, the Employees argue that the Vice-Chair breached
    their natural justice rights by depriving them of the opportunity to challenge
    the theory and jurisprudence on which his decisions were based.

[41]

As
    these submissions engage issues of procedural fairness and the right to natural
    justice, no assessment of the appropriate standard of review is required:
Ontario
    Provincial Police
, at para. 37 and
Moreau-Bérubé v. New-Brunswick
,
    2002 SCC 11, [2002] 1 S.C.R. 249, at para. 74.  This court is required to
    assess anew the facts and context upon which the Vice-Chair acted.

[42]

I
    am unable to give effect to the Employees submissions in this regard.  The
    appellants advised the Employees that they would raise the question of the
    Applications labour relations purpose prior to the hearing in correspondence
    dated December 9, 2011.  It was also mentioned as an argument in the written
    submissions provided by Local 183 to the Employees the day before the hearing
    on December 18, 2011.  Consistent with that expressed intention, the labour
    relations purpose argument was both raised and argued by the parties during the
    hearing.  This is evident from paras. 56, 60 and 68 the Vice-Chairs reasons dated
    March 30, 2012.

[43]

In
    addition, while
Wal-Mart Canada Corp.
was decided after the hearing
    and was therefore not argued by any of the parties, as acknowledged in para. 51
    of that decision, it raised no new principles of law:

The Boards jurisprudence with respect to its discretion under
    section 96 of the
Act
is well-established. The Board possesses
    discretion whether it will inquire or not inquire into an unfair labour
    practice complaint, and, in particular, because proceeding further serves no
    labour relations purpose. That is because:

It is important for the Board to expend [its] limited
    resources in a way that is consistent with the objectives of the statute, will
    best accomplish its statutory mandate, and is sensitive to practical labour
    relations realities.

[44]

Secondly,
    the Employees submit that they were deprived of their right to call oral
    evidence.  There is no support in the record for the Employees position.  At paras.
    11-13 of the Vice-Chairs reasons dated August 29, 2012, he points out that no
    one asked to call any evidence and he did not refuse any request to call
    evidence.  The Vice-Chair cannot be faulted on this ground.

[45]

Thirdly,
    the Employees submit that the Vice-Chair made factual findings that were unsupported
    by the evidence.  They contest findings made on four issues: conflict of
    interest, severance of the claims, mitigation, and cost and delay.

[46]

A
    review of the record reveals that the Vice-Chair did have a foundation for his
    factual findings.

[47]

In
    its December 9, 2011 correspondence, LIUNA wrote that Messrs. Terceira, Avero
    and Melo had raided a LIUNA affiliate, thereby creating a conflict of interest
    if the OLRB reinstated them to their Local 183 executive board positions. The
    fact that Messrs. Terceira, Avero and Melo had accepted employment with a rival
    trade union was asserted by LIUNA both by letter and during the hearing.  Nor
    was this disputed by the Employees.  Indeed, they acknowledged this fact in
    their oral argument.  The Employees had notice of the issue and cannot be said
    to have been denied an opportunity to respond.  Moreover, given the positions
    of the parties, the Vice-Chair was correct in concluding that he did not need
    evidence to come to the conclusion he did.

[48]

The
    Employees also take issue with the Vice-Chairs finding that they all intended
    to proceed with their claims together.  In the absence of any representation by
    Messrs. OBrien and Strazzanti that they intended to sever their claims, it was
    a fair inference for the Vice-Chair to conclude that all of the Employees
    claims would be heard together.

[49]

The
    Employees also allege that the Vice-Chair erred in finding that three of the
    five Employees had mitigated their financial losses.  As noted, Messrs. Terceira,
    Avero and Melos employment with a rival trade union was raised during the hearing
    and was not disputed.  It was open to the Vice-Chair to find that there had
    been some mitigation.

[50]

Lastly,
    the respondents complain that the Vice-Chair improperly determined at paras. 89
    and 96 of his reasons dated March 30, 2012 that the amount of relief available
    to some of the Employees was not worth it given the overwhelming financial cost
    to the parties and to the Board and that the Application would require in
    excess of 100 hearing days.  They state that the Vice-Chair heard no evidence
    and entertained no submissions on the quantum of relief or the anticipated
    length of the hearing.  Moreover, the Employees argue that the Vice-Chair
    failed to consider tools available to expedite and streamline the proceedings.

[51]

Given
    the matters in play, cost and delay were relevant factors.  It was open to the
    Employees to address the issues of cost and delay but they opted not to do so.  Furthermore,
    the Vice-Chair was well placed to make an assessment on the anticipated cost
    and length of the Application.

[52]

In
    my view, there was no denial of procedural fairness.

[53]

The
    nature of a Request for Reconsideration must also be considered when addressing
    the objections of the Employees.

[54]

As
    stated in
Amalgamated Transit Union Local 113 v. Ontario Labour Relations
    Board
(2007), 88 O.R. (3d) 361 (Ont.
    Div. Ct.),
at para. 106, a Request for Reconsideration is
    recognized as a significant procedural protection that heightens the ultimate
    content of procedural fairness to a party.  Reconsideration allows the party to
    make submissions on an issue on which that party had no prior opportunity to
    make submissions.  Parties seeking reconsideration should provide full
    representations in support of their request: see
Labourers International
    Union of North America v. Westendorp Demolition
(2011), O.L.R.D. No. 3803 (OLRB),
at para. 12 and Ontario,
    Ontario Labour Relations Board,
Rules of Procedure
, r. 18.1.

[55]

The
    Employees were not deprived of any procedural protections.  The Employees had
    the opportunity to make submissions on the deficiencies of which they complain
    in the Request for Reconsideration.  They either unsuccessfully did so as, for
    example, on the issue of labour relations purpose and the
Wal-Mart Canada
    Corp.
decision or, alternatively, chose not to do so.  This lends support
    to the rejection of their claims of breaches of their rights to natural
    justice.

(iii)

Reasonable
    Exercise of Discretion Not to Inquire into Application

[56]

The last ground advanced by the Employees is that, in concluding that
    there was no labour relations purpose, the Vice-Chairs exercise of discretion
    was unreasonable.

[57]

This
    exercise of discretion is at the core of the OLRBs expertise and is reviewable
    on a standard of reasonableness.  In addition, when the OLRB applies its
    constituent statute, as it did here by applying s. 96 of the
Labour
    Relations Act
, a reasonableness standard applies:
Dunsmuir v. New
    Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 54.

[58]

As
    noted, s. 96(4) of the
Labour Relations Act
provides the OLRB with the
    discretion to refuse to entertain an application.  Here, the Vice-Chair
    considered the relevant factors.  He recognized that the Employees Application
    was both arguable and timely.  He weighed this against other relevant factors,
    including the unavailability of primary remedies and the cost of the potential
    proceeding, and determined that it was important for the OLRB to expend its
    limited resources in a way that was consistent with the objectives of its
    governing statute and statutory mandate.  The unavailability of the primary
    remedies and the significant estimated cost of the proceeding outweighed any
    competing factors.  The Vice-Chair was in the best position to make this
    assessment and his discretionary decision not to inquire into the Application
    is entitled to deference.

[59]

Accordingly,
    I would not give effect to this additional ground of appeal.

Disposition

[60]

I
    would therefore allow the appeal, set aside the order of the Divisional Court,
    and restore the orders of the OLRB dated March 30 and August 29, 2012.

[61]

If
    the appellants and respondents are unable to agree, I would order them to make
    brief written submissions on costs.  No costs were claimed by the OLRB or by
    the intervener, the Ministry of the Attorney General.

Released:

KF                                         S.E.
    Pepall J.A.

NOV 26 2014                          I
    agree K. Feldman J.A.

I
    agree R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Toronto Standard Condominium Corporation No. 2130
    v. York Bremner Developments Limited, 2014 ONCA 809

DATE: 20141117

DOCKET: M44092 (C58349)

Hoy A.C.J.O., Epstein and Hourigan JJ.A.

BETWEEN

Toronto Standard Condominium Corporation No. 2130

Applicant (Respondent)

Moving Party

and

York Bremner Developments Limited, The Cadillac
    Fairview Corporation Limited and York Bremner Hotel Leaseholds Limited

Respondents (Appellants)

Responding Parties

APPLICATION UNDER sections 10 and
    23 of the
Arbitration Act,

1991
, section 132 of the
Condominium
    Act,

1998
, section 17 of the
Ontario New Home Warranties Plan
    Act
, Rule 14.05(3)(d) and (h) of the
Rules of Civil Procedure
,
    and the inherent jurisdiction of this court.

Richard Macklin and Neil G. Wilson, for the moving party

Catherine Francis, for the responding parties

Heard: November 5, 2014

On appeal from the judgment of Justice Wendy M. Matheson
    of the Superior Court of Justice, dated January 8, 2014.

ENDORSEMENT

[1]

Toronto Standard Condominium Corporation No. 2130 (the Condominium
    Corporation) moves to quash the appeal by York Bremner Developments Limited (the
    Declarant), The Cadillac Fairview Corporation Limited and York Bremner Hotel
    Leaseholds Limited (the Appellants) of the January 8, 2014 judgment of the
    application judge appointing an arbitrator in connection with the arbitration
    commenced by the Condominium Corporation.

[2]

The Condominium Corporation argues that there are two bases for doing
    so. First, s. 10(2) of the
Arbitration Act, 1991
, S.O. 1991, c. 17
    precludes any appeal of the application judges decision. Second, the
    Appellants have attorned to the jurisdiction of the arbitrator.

[3]

We agree that s. 10(2) of the
Arbitration Act, 1991
precludes
    an appeal of the application judges judgment. The appeal is accordingly
    quashed. Given our conclusion regarding the effect of s. 10(2), it is
    unnecessary to address the parties arguments on the issue of whether the
    Appellants have attorned to the jurisdiction of the arbitrator.

The Background

[4]

It is helpful to briefly set out the background in this matter.

[5]

The Condominium Corporation is the condominium corporation for a
    residential condominium in a complex called Maple Leaf Square. The Declarant
    owns the commercial and retail lands at Maple Leaf Square. York Bremner Hotel
    Leaseholds Limited (Leasing) holds a leasehold interest in a hotel in Maple
    Leaf Square. The Cadillac Fairview Corporation Limited is described as the
    Declarants agent, appointed to be the common facilities manager of Maple Leaf
    Square.

[6]

The Declarant, Leasing and the Condominium Corporation entered into an
    agreement called the Complex Reciprocal Agreement (the CRA). The CRA relates
    to the management of the common facilities, areas and services of the
    condominium development. The CRA contains a broad arbitration clause. It
    provides that [S]hould any dispute, difference or question arise between or
    among the Parties arising out of, or in connection with, [the CRA] then such
    dispute, difference or question is to be submitted to and resolved by
    arbitration.

[7]

A number of disputes arose between or among the parties and the
    Condominium Corporation sought to initiate arbitration proceedings under the
    CRA. It also commenced overlapping proceedings in court.

[8]

In accordance with the CRA, the Condominium Corporation issued a notice
    of arbitration on May 17, 2013, seeking arbitration pursuant to, amongst other
    things, the CRA and the
Arbitration Act, 1991
. Clause 22.02 of the CRA
    required the Declarant and Leasing  the Responding Party in the language of
    clause 22.02  to give notice to the Condominium Corporation within 10 days
    advising whether or not they accepted the proposed arbitrator. Clause 22.02 also
    provides as follows:

Within 10 days after receipt of such notice, the Responding
    Party shall give notice to the Initiating Party advising whether the Responding
    Party accepts or does not accept the arbitrator proposed by the Initiating
    Party. If such notice is not given within such 10 day period, the Responding
    Party shall be deemed to have accepted the arbitrator proposed by the
    Initiating Party. If the Responding Party does not accept the arbitrator
    proposed by the Initiating Party and the Parties cannot agree upon a single
    arbitrator within such 10 day period, either the Initiating Party or the
    Responding Party may apply to a judge of Superior Court of Ontario for the
    appointment of a single arbitrator.

[9]

The Appellants did not respond to the Condominium Corporations notice
    within 10 days but refused to move forward with the arbitration.

[10]

The
    Condominium Corporation brought an application seeking the appointment of an
    arbitrator. The grounds for its application included s. 10 of the
Arbitration
    Act, 1991
. The Condominium Corporation argued that one of two persons
    should be appointed as arbitrator pursuant to the CRA and should rule on his
    own jurisdiction.

[11]

At
    para. 7 of her reasons, the application judge noted that the Appellants took no
    issue with the process of proposing an arbitrator. She also noted that at the
    outset of the hearing the Appellants indicated for the first time that they
    were not objecting to the individuals proposed by the Condominium Corporation
    to act as arbitrator. Rather, the Appellants argued that none of the issues in
    the Condominium Corporations notice of arbitration fell within the ambit of
    the arbitration agreement in the CRA and were accordingly outside the
    jurisdiction of the arbitrator. Therefore, there was no point in appointing an
    arbitrator.

[12]

The
    application judge disagreed. At para. 20 of her reasons, she cited
Dancap
    Productions Inc. v. Key Brand Entertainment
, 2009 ONCA 135, 55 B.L.R.
    (4th) 1, for the principle that [a] court will decline to have the arbitrator
    determine his or her jurisdiction only when it is clear or obvious that there
    is no jurisdiction.  She concluded that, since at least one issue arguably
    fell within the jurisdiction of the arbitrator, the arbitrator should be
    appointed and determine his jurisdiction.

[13]

The
    application judge also accepted that the Condominium Corporation had commenced
    the overlapping court proceedings to protect against limitation period problems
    and because the relief that it seeks under s. 113 of the
Condominium Act,
    1998
, S.O. 1998, c. 19 must be pursued in court.

[14]

The
    judgment of the application judge describes the Condominium Corporations
    application as for an Order appointing either Gary Caplan or Larry Banack as
    arbitrator for an arbitration to be conducted pursuant to sections 10 and 23 of
    the
Arbitration Act, 1991
, section 132 of the
Condominium Act,
    1998
, section 17 of the
Ontario New Home Warranties Plan Act
and
    [the CRA] Pursuant to the judgment, the court ordered that Larry Banack is
    appointed as arbitrator in connection with the arbitration commenced by a
    Notice of Arbitration issued on May 17, 2013, as amended on December 17, 2013.

[15]

After
    the arbitrator was appointed, the Condominium Corporation put the Appellants on
    notice that it would argue that the Appellants had attorned to the jurisdiction
    of the arbitrator if they did not move to stay the arbitration proceedings. The
    Appellants responded that they would not be able to establish that they would
    suffer irreparable harm if the stay were not granted, could therefore not
    succeed in obtaining a stay, and would accordingly not move for a stay.

[16]

Before
    the arbitrator considered the question of his jurisdiction, the Condominium
    Corporation withdrew 13 of the issues in its notice of arbitration. The
    arbitrator determined that he had the jurisdiction to determine the remaining
    six issues. In his award on the issue of jurisdiction, the arbitrator noted
    that the Appellants explicitly stated that they did not seek a stay of the
    arbitration proceedings, including the jurisdiction motion.

[17]

The
    arbitrator has since determined two of the six issues over which he asserts
    jurisdiction. The Condominium Corporation has withdrawn one of the six issues,
    and a further issue regarding HST has been adjourned, to permit the Condominium
    Corporation to pursue relief through the Canada Revenue Agency. A hearing in
    respect of the final two issues is scheduled for January of 2015.

[18]

The
    Appellants have participated actively in the proceedings before the arbitrator.
    Facta have been filed, submissions made and witnesses cross-examined. The
    Appellants have also paid costs awarded by the arbitrator. By August 5, 2014,
    the parties had spent more than $100,000 on the arbitrators fees. The
    Condominium Corporation (and presumably the Appellants) have incurred
    additional costs for counsel, experts and disbursements.

[19]

The
    Appellants have launched an appeal of the arbitrators ruling on his
    jurisdiction to the Superior Court of Justice.

[20]

On
    their appeal to this court, the Appellants propose to argue that the
    application judge erred in law in referring all the issues in the notice of
    arbitration to the arbitrator. They would argue that she was required to assess
    each of the issues raised in the notice of arbitration and to refer only those
    that she determined were arbitrable or at least potentially arbitrable under
    the arbitration agreement.

Analysis

[21]

As
    we indicated above, the Condominium Corporations 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
    partys 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 Corporations 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 judges judgment. That section provides as
    follows:

No appeal

(2) There is no appeal from the courts 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 arbitrators ruling on the issue of jurisdiction to the Superior
    Court of Justice pursuant to s. 17(8) of the
Arbitration Act, 1991
.

Disposition

[26]

The
    appeal is accordingly quashed.

[27]

The
    Condominium Corporation shall be entitled to costs of the appeal and the motion
    to quash, fixed in the amount of $20,000, including disbursements and HST.

Alexandra Hoy A.C.J.O.

G.J. Epstein J.A.

C. W.
    Hourigan J.A.