Appealing an Interlocutory and Procedural Arbitral Ruling
In Hutchison v. Mullin, Justice Lemon of the Ontario Superior Court of Justice considered whether a party may appeal from an interlocutory and procedural decision made by an Arbitrator.
The parties in this case married in September 2001 and separated in August 2015. They have three children and the parenting issues were settled by way of a partial separation agreement in August 2017. To resolve the remaining financial issues in dispute, the parties attended an arbitration management conference with an Arbitrator in October 2017 and scheduled a three-day hearing in the middle of April 2018. Near the end of March 2018, Mr. Mullin served two Requests to Admit on Ms. Hutchison in anticipation of the arbitration.
Both Requests contained voluminous paragraphs and references to facts and documents which Ms. Hutchison was requested to admit. The parties agreed to adjourn the arbitration to July 30, 2018. However, due to the recusal of the Arbitrator they initially retained, the Arbitration was scheduled to take place with another Arbitrator during the week of January 14, 2019 for five days. By November 2018, Ms. Hutchison had not filed a response to either Request. She sought an extension of time to file by December 10, 2018, which was refused by Mr. Mullin. Ms. Hutchison served her responses to the Requests nonetheless on December 19, 2018 and January 18, 2019. She brought a motion to extend the time to serve her response to the Requests, but the Arbitrator dismissed her motion. Ms. Hutchison then appealed the Arbitrator’s decision, arguing that the Arbitrator erred in law, to which Mr. Mullin replied that the Arbitrator made no reviewable errors and, in any event, Ms. Hutchison had no right of appeal.
The first step of the analysis is to look at the parties’ Arbitration Agreement, which gave them wide latitude to appeal an Arbitration Award in accordance with sections 45(1) and 46 of the Arbitration Act. The question comes down to what constitutes an “Award;” that is, whether the right of appeal only applies to the final determination or whether it includes procedural and interlocutory determinations as well.
Per Mull v. Mull, the court’s jurisdiction to intervene in an arbitration process is limited and there are no appeals from interlocutory and procedural decisions, as engaging in such intervention can undermine the purposes of the arbitration process and make it less useful for the parties.
In Inforica Inc. v CGI Information Systems & Management Consultants Inc., the Ontario Court of Appeal held that a procedural order is not an “award” within the meaning of section 46 of the Arbitration Act. An “award” refers to a decision that disposes of part, or all, of the dispute between the parties, and only decisions determining the substantive issues should be termed “awards.” In contrast, matters relating to the conduct of the Arbitration are not awards but rather procedural orders and directions. Based on this analysis, although the parties’ Arbitration Agreement and the Arbitrator referred to the decision as an “award,” the ruling was really interlocutory and procedural. As such, Ms. Hutchison had no right of appeal with respect to the ruling.
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