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This case deals with Section 46 of the Arbitration Act. The parties entered into a Separation Agreement that included a clause regarding dispute resolution. The parties agreed to resolve all issues that arise from the Separation Agreement through Mediation/Arbitration. Both parties were provided independent legal advice regarding the Separation Agreement.

Prior to the family arbitration session, the parties, who were common-law partners, signed an Arbitration Agreement. The Arbitrator had informed both parties of the change in legislation regarding family arbitrations, more specifically, that parties could not opt out of all rights of appeal.

The parties used arbitration to resolve their property issues, specifically the home of the relationship. Mr. Cunningham was arguing for an unequal interest in the home, specifically he wanted a 91% interest and his wife would get a 9% interest. . Conversely, Ms. Moran argued for a 50% interest in the home. At the end of the day, the Arbitrator decided to give the parties an unequal interest in the home; with Mr. Cunningham having a 70% interest and his wife having a 30% interest.

Since the arbitration award, Ms. Moran was unable to realize her interest in the property and Mr. Cunningham continued to dwell in the disputed home. Subsequently, Mr. Cunningham decided to challenge the arbitration award through two avenues: (1) an appeal; and (2) a Section 46 Motion.

The grounds for Mr. Cunningham’s Section 46 Motion was that the Arbitration Agreement is invalid because (a) the agreement to preserve some appeal rights was not done in writing; and (b) no certificates of independent legal advice were obtained. Mr. Cunningham’s Section 46 Motion was dismissed.

Mr. Cunningham decided to bring another section 46 Motion for reasonable apprehension of bias. The Court stated that Mr. Cunningham cannot bring a second motion under section 46 because he already argued section 46 in his first motion and had the opportunity to raise alleged bias then. Moreover, Mr. Cunningham had the opportunity to amend his pleading during his first motion to include alleged bias as he was aware of the bias at the time.

The Court determined that prior to Mr. Cunningham’s first motion; he had knowledge of the alleged bias through email correspondences between the Arbitrator and Mr. Cunningham. Mr. Cunningham had emailed the Arbitrator stating that the arbitration award should be invalidated because the Arbitrator had a conflict of interest with Ms. Moran. Allegedly, the Arbitrator had a close association with the University of Toronto, the same institution where Ms. Moran is the Dean of the Faculty of Law. As a result, it was Mr. Cunningham’s belief that any decision made by the Arbitrator would be reflective of actual bias and a serious lack of impartiality. The Arbitrator replied that he had never met Ms. Moran until the Arbitration, and just because he taught at the same school, this does not automatically mean that there is bias or an apprehension of bias. The Court dismissed the second motion as this was considered res judicata. This doctrine means that a person is precluded from bringing an action when the same cause of action has been already determined in earlier proceeding by the Court.

Once both motions were dismissed, there was an outstanding appeal that was left to be heard. However, the Court stated that Mr. Cunningham would have to pay for his motion costs before he proceeds to an appeal. Also, in his appeal, he would be unable to argue a reasonable apprehension of bias because he did not claim this issue in his initial proceeding.