The dispute involves a condo corporation and a developer concerning a shared spaces agreement
The Ontario Court of Appeal rejected an appeal challenging a court-ordered arbitrator appointment, ruling that the Arbitration Act prohibits appeals in such cases.
The case involved a dispute between a condominium corporation and a developer concerning a Shared Facilities Agreement (SFA) governing shared spaces. After mediation and negotiations failed, the parties had initially agreed in 2018 to appoint an arbitrator, but the arbitration did not proceed at that time. In 2022, a fresh arbitration notice was issued, leading to disagreements over the arbitrator's appointment and the scope of the arbitration.
The condominium corporation sought a court order to confirm the appointment of the previously agreed-upon arbitrator. The developer argued that the agreement had been repudiated and opposed the appointment, claiming that the arbitration notice raised issues beyond the original dispute.
The application judge found that the parties had agreed on an arbitrator in 2018 and that no repudiation of the agreement had occurred. The judge appointed the arbitrator and allowed the arbitrator to determine the scope of the issues, including those raised in the 2022 arbitration notice.
The developer appealed the decision, arguing that the appointment should be limited to the original 2018 dispute and that their right to pre-arbitration negotiation and mediation had been bypassed. They also claimed the appointment was not covered under the Arbitration Act, making the appeal permissible.
The Court of Appeal disagreed, ruling that the appointment was made under s. 10 of the Arbitration Act, which grants the court authority to appoint an arbitrator when parties cannot agree. The court held that the appeal was barred under s. 10(2) of the act, which precludes appeals of court-ordered arbitrator appointments. The court further rejected the developer’s argument that the order was based on general contract enforcement, affirming that the arbitrator would determine jurisdictional issues. Ultimately, the court quashed the appeal and awarded costs of $20,000 to the condominium corporation.
