Ontario – venue change application for arbitrator appointment application an inappropriate, misuse of court resources – read #448

In Toronto District School Board v. Roofmart Ontario Inc., 2021 ONSC 1688, Mr. Justice Frederick L. Myers dismissed R’s application under Rule 13.1.02 of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194 to change venue from Brampton to Toronto for the adjudication of SB’s application to appoint an arbitrator under section 10 of the Arbitration Act, 1991, SO 1991, c 17.  Though he acknowledged that the parties’ underlying dispute was “wholly Toronto-based”, Myers J. observed that “the question of who arbitrates has no natural connection to any venue”.  Noting that a Brampton-assigned judge had already seized himself of SB’s application to appoint an arbitrator and scheduled an upcoming hearing to decide that application, Myers J. disagreed with R’s attempt to task another judge to hear SB’s application. “Any judge of this court is equally capable of hearing this matter quickly and making a decision on the identity of the arbitrator”.

Toronto District School Board (“School Board”) and Roofmart Ontario Inc. (“Roofmart”) disputed the consequences of a fire at a School Board property.  As part of their dispute, the parties disagreed on the proper venue for resolution of their dispute. 

School Board sought to arbitrate their dispute but Roofmart resisted, denying that the arbitrator had jurisdiction over the dispute. Roofmart commenced its own action in court against numerous third parties against which Roofmart sought contribution and indemnity in regard to School Board’s claim. 

School Board filed an application under section 10 of the Arbitration Act, 1991, SO 1991, c 17 for an order to appoint an arbitrator (“Appointment Application”) and provided a list of candidates.

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”.

In addition to resisting School Board’s application under the Arbitration Act, Roofmart applied under Rule 13.1.02 of the Rules of Civil Procedure, RRO 1990, Reg 194 to have School Board’s Appointment Application transferred from Brampton to Toronto (“Venue Change Application”).   The change of venues is between different counties within the jurisdiction of the courts of Ontario and not to a jurisdiction outside the courts or the province.  Rule 13.1.02(2)(b) sets out the factors for consideration.

Prior to filing its Appointment Application, School Board sought Roofmart’s input into scheduling the hearing in Brampton.  Roofmart objected to having the Appointment Application heard in Brampton, preferring that it be heard in Toronto.

School Board filed its Appointment Application in Brampton on January 18, 2021 and Mr. Justice Peter A. Daley conducted a case conference January 19, 2021.  Roofmart objected to the venue. Daley J. seized himself of the Appointment Application, scheduling to hear it himself on March 19, 2021.

Assigned to hear Roofmart’s Venue Change Application, Myers J. commented on the need to choose a venue for an application under section 10 of the Arbitration Act.

Myers J. readily noted that Roofmart’s only connection to Brampton involved having an office there but confirmed that “nothing else about the dispute between the parties has anything to do with Brampton”  Myers J. added that “[a]ll of the connections are to Toronto”.   Myers J. appeared to offset that observation by next noting that Roofmart’s litigation in Toronto did not include School Board.

Myers J. disagreed with Roofmart’s decision to apply for a venue change when the School Board’s pending application involved appointment of an arbitrator.  Aside from affirming that the competence-competence principle required that, “in all but very exceptional cases”, jurisdiction is submitted first to the arbitrator, Myers J. expressed disapproval in the potential increase of judicial resources occasioned by Roofmart’s Venue Change Application.

In dismissing Roofmart’s Venue Change Application, Myers J. spoke to the appointment process set out in section 10 of the Arbitration Act, the capacity of any judge of the court to appoint an arbitrator, the misuse of the court’s resources in tasking a second judge to engage in the file and the counsel’s own ability to select the parties’ arbitrator. 

[9] Section 10 of the Arbitration Act. 1991 provides for a quick process to appoint an arbitrator where a party fails to do so within seven days. There is no appeal from the order. Why is that?  Because the statute seeks to avoid the very game being played out in this motion. It is inappropriate to try to use procedural steps to hinder a party from a fair hearing on the merits. The jurisdiction question needs to be decided. Unless s. 7 of the statute applies, the issue will be decided first by the arbitrator. There is no legitimate basis to refuse to choose an independent and capable arbitrator to prevent the legal process from proceeding.

[10] There is even less basis to then try to hold up this proceeding by procedural machinations like venue. While the underlying dispute between the parties is wholly Toronto-based, the question of who arbitrates has no natural connection to any venue. Roofmart may want its claim with the school board heard with its Toronto lawsuit against others. That might be an issue for the arbitrator to consider when deciding the jurisdiction question. However, it is decidedly not a strategy to be achieved by employing procedural tactics that delay and hinder the efficient, affordable, and fair consideration of the jurisdiction issue on its merits.

[11] Any judge of this court is equally capable of hearing this matter quickly and making a decision on the identity of the arbitrator. On the list I saw, there are no wrong answers.

[12] It would be a misuse of this court’s resources to engage a second judge in climbing the learning curve already undertaken by Daley J. or to make this application last one day longer or cost one dollar more than already in motion.

[13] This application should never be heard. Counsel are more than up to the task of picking a neutral, independent, experienced, capable arbitrator to guide their clients to a fair resolution process”.

Myers J. concluded that the record disclosed no basis under Rule 13.1.02(2)(b) to change venue and dismissed Roofmart’s Venue Change Application.

urbitral notes – First, for additional decisions involving Rule 13.1.02 and mention of arbitration, see Siemens Canada Limited v. Ottawa (City), 2008 CanLII 48152 (ON SC) and 2422823 Ontario Inc. v. 6847188 Canada Inc., 2019 ONSC 842.