Ontario – leave to appeal on question of law waived when both parties fully argue issues in court – #149

In O’Connell v. Awada, 2019 ONSC 273, Mr. Justice Stanley Kershman allowed Appellant to present his appeal on two (2) questions of law even though he had not sought or obtained leave to do so. Kershman J. held that, because both parties fully pleaded the issues regarding the questions of law, he waived the requirement for leave despite Respondent’s objections. Kershman J. also provided comment on the extent to which arbitrators ought to comment on evidence and demonstrate that they have heard the evidence.

Appellant and Respondent signed a mediation-arbitration agreement (“Med-Arb Agreement”) which resulted in an award which issued January 12, 2018 (the “Award”). Appellant appealed the Award on four (4) grounds, two (2) of which required leave because they involved questions of law. Though the dispute involved family law matters, the comments given by Kershman J. can apply to commercial disputes too.

Appellant did not seek or obtain leave to appeal the Award. Respondent objected to Kershman J. hearing Appellant’s appeal on those questions, arguing that section 10 of the parties’ Med-Arb Agreement required leave for appeals on questions of law and that, under section 45 of Ontario’s Arbitration Act, 1991, SO 1991, c 17, only appeals on questions of mixed fact and law could be heard.

Kershman J. dismissed Respondent’s objection and, in doing so, alerted other arbitration practitioners that the same result might avail in their hearings.

[7] The Court agrees that the two issues raised by Mr. Awada related to property determinations are indeed questions of law, and that leave was required to argue them. Notwithstanding that leave was not obtained, both parties fully argued these two issues before the Court on November 22, 2018. On that basis, the Court waives the requirement for leave and will deal with these two issues.

In approaching his consideration of the arbitrator’s Award, Kershman J. spoke to the approach expected of the courts when questions of mixed fact and law, noting that deference means a court is not entitled to overturn an award because the court would have made a different decision “or balanced factors differently”. Kershman J. referred to Hickey v. Hickey, [1999] 2 SCR 518, 1999 CanLII 691 (SCC) para. 12 which identified the basis for that deference.

12 There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.

Kershman J. also drew an express analogy between arbitrators and trial judges when sketching the scope of appellate review of an award.

“[10] An arbitrator, in reaching the terms of an award, sits in the same position as a judge does in a lower court when their decision is appealed; for a decision to be overturned on appeal, it must be found that the arbitrator erred in law and the decision was not correct, or that they made a palpable and overriding error on a question of mixed fact and law (see: Gray v. Brusby (2008), 2008 CanLII 32816 (ON SC), 56 R.F.L. (6th) 165 (Ont. S.C.), at para. 27).”

Kershman J. proceeded to review the Award in light of the respective standard of review applicable to either questions of law or questions of mixed fact and law. He did comment on the nature of an arbitrator’s analysis and what obligations the arbitrator had or did not have handling the evidence.

[32] While the Arbitrator has the obligation to listen to the oral evidence and review the documentation filed by the parties, the Court does not find that the Arbitrator is obliged to put greater weight on oral evidence, no matter how many witnesses there are, over that which it places on documentary evidence.

[33] In this case, the Arbitrator was not able to reconcile the oral evidence of Mr. Awada and Bilal Awada with the documentary evidence filed. The Arbitrator found that there was no persuasive evidence provided to satisfy her that the purchase moneys were provided by Bilal Awada. In doing so, the Court finds that the Arbitrator did put her mind to the evidence provided by both Mr. Awada and Bilal Awada.

[34] Further, the Arbitrator was alive to the issue that legal title was only transferred to Bilal Awada after the initiation of the family court proceedings.

Kershman J. also offered insights on the sufficiency of how an arbitrator might express findings.

[37] The Court follows the reasoning in R. v. M. (R.E.), 2008 SCC 51 (CanLII), [2008] 3 S.C.R. 3, at para. 49 in that while it is useful for a judge to articulate their reasons for believing one witness over another on a general or particular point, the exercise may involve factors difficult to verbalize. Furthermore, according to M. (R.E.), at para. 43, detailed recitations of evidence or the law are not required, instead, a judge must show that they have “seized the substance of the matter.

[38] The Court also follows the reasoning in Dinardo, which discusses the sufficiency of reasons. While inconsistencies within a witness’ testimony must be addressed, there is no need to prove that a trial judge was alive to and considered all of the evidence or should answer each and every argument made by counsel.

[40] The Arbitrator chose to accept evidence, some of which was contained in documents such as tax returns and title documents; considered the absence of certain documents such as a trust agreement, as well as considered the sworn evidence of witnesses in coming to a determination.

In the paragraph noted by Kershman J. from R. v. R.E.M., [2008] 3 SCR 3, 2008 SCC 51, the Supreme Court had the following to say about what the finder of fact might write on a witness’ testimony.

[49] While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.

Kershman J. dismissed each of Appellant’s grounds of appeal finding that the arbitrator had committed no error of law or error of mixed fact or law.