ONTARIO – There is no further right of appeal from a Superior Court judge’s decision that reviewed an Arbitrator’s decision on a preliminary question that is not addressed in an award.
Iris Technologies Inc. v. Rogers Communications Canada Inc.
2022 ONCA 634 September 2, 2022
Ontario Court of Appeal (Miller, Nordheimer and Sossin JJ.A)
Iris Technologies Inc. (“Iris”) and Rogers Communications Inc. (“Rogers”) were in a dispute over payment for services Iris provided. The dispute was proceeding as an arbitration pursuant to the Arbitration Act, 1991, S.O. 1991., c. 17 (“Act”) in which Rogers counterclaimed.
Iris asked the Arbitrator to rule on the preliminary issue of whether the Tribunal had jurisdiction to consider Rogers’ counterclaim or whether the subject of the counterclaim was within the exclusive jurisdiction of the CRTC. The Arbitrator ruled that he had jurisdiction.
Iris applied to the Superior Court of Justice for a review of that preliminary decision under s. 17(8) of the Act. The application judge reversed the Arbitrator’s decision and dismissed the counterclaim.
Rogers brought a motion for leave to appeal that decision, which Iris moved to quash. The Court of Appeal granted Iris’ motion and quashed Rogers’ motion for leave to appeal.
The Court of Appeal held that the Act is clear and that there is no further right of appeal from a Superior Court judge’s review of an Arbitrator’s decision on a preliminary question. (para. 7) In doing so, the Court rejected Rogers’ attempt to rely on the appeal procedures in sections 45-50.1 of the Act because those provisions relate to an appeal of an award. Here, the Arbitrator did not make an award but instead ruled on a preliminary objection. In the Court’s view, section 17(9) “could not be clearer” that there is no appeal from the reviewing court’s decision. (para. 8)
The Court also rejected Roger’s submission that a full record was needed to determine the issue because context was important. The question was “narrow” – whether any appeal lies from the decision of the reviewing judge – and the merits of the matter were irrelevant to that determination. (para. 10)
A party who wishes to challenge the Tribunal’s jurisdiction must choose when to make that challenge – either as a preliminary question or during the arbitral hearing, which would be addressed in the Tribunal’s award. When the challenge is determined may impact a party’s ability to appeal the Tribunal’s ruling on its jurisdiction.
Under section 17 of the Act, the Tribunal may rule on an objection to its jurisdiction as a preliminary question or deal with it in an award. If the challenge is argued at the hearing and addressed in the Tribunal’s award, section 45 of the Act may require leave to appeal the jurisdictional question, which can add expense and delay to the proceedings.