ONTARIO – Arbitration – Enforcement – Where none of the conditions in s. 50(3)(a) to (d) of the Arbitration Act, 1991 are present, the court is required to grant judgment enforcing the award. Issues between co-respondents to an application for enforcement under s. 50 of the Act that do not engage with the questions listed under subsections 50(3)(a) to (d) are not relevant to the application.

TSCC No. 2707 v. 612 Richmond Street West Inc. et al.
 2025 ONSC 1784 (March 25, 2025)
Ontario Superior Court of Justice (Centa J.)

This was an application for an order under s. 50 of the Arbitration Act, S.O. 1991, c. 17 for an order enforcing an arbitration award dated July 5, 2024, and a costs order dated July 17, 2024. (para. 1)

Background

The respondent 612 Richmond Street West Inc. (“612 Inc.”) owned the commercial lands on which the applicant’s residential condominium was located. 612 Inc. sold the lands to the respondent 1000761660 Ontario Inc. (“1000 Inc.”). Pursuant to a shared facilities agreement, which contained an arbitration provision, the owner of the lands was required to contribute to the costs of certain facilities. (para. 2)

The applicant triggered the arbitration provision over a dispute regarding arrears in contributions for the shared facilities. The court, Koehnen J., appointed the arbitrator. (para. 3)

The arbitrator convened several case conferences. 612 Inc. participated in some of the case conferences but then stopped participating. The applicant served 1000 Inc. with the amended notice of application but 1000 Inc. declined to participate, despite having ample opportunity to do so. The arbitrator found that the respondents had “ample opportunity to participate in this arbitration and chose not to do so”. He ordered that the arbitration proceed to a hearing in accordance with Rule 14 of the ADR Chambers Rules (para. 4)

At the end of what the court described as a “clear and cogent decision” in the arbitration, the arbitrator ordered that the respondents were jointly and severally liable to pay to the applicant $137,077.00, calculated to May 29, 2024, and that interest shall accrue at the rate of 24% per annum compounded monthly from May 30, 2024, until paid. (para. 5)

After receiving costs submissions, the arbitrator awarded costs to the applicant in the amount of $65,484.95, plus post-judgment interest of 2% per annum (para. 6)

The applicant commenced the application under s. 50 of the Act after the arbitral award remained unsatisfied. (para. 7)

Analysis

The court found that the applicant’s evidence demonstrated that none of the circumstances described in paragraphs 10(3)(a) to (d) were present. 612 Inc. did not disagree, conceding that the arbitration decision was not appealed or challenged and that there was no basis to resist enforcement under the Act. Instead, 612 Inc. raised certain issues about its contribution to payment of the costs, including what its contribution should be on a joint and several basis, whether its obligation to pay costs should be apportioned in a “fair and reasonable” way, and the impact of the other respondent’s failure to provide instructions to its counsel should have on the manner that costs were awarded or the payment of costs on a joint and several basis. (para. 8)

The court found that none of the issues 612 Inc. raised were relevant to the matters at issue on the application. Centa J. held that the only question before the court was whether any of the circumstances in s. 50(3)(a) to (d) of the Act were present. The issues that 612 Inc. raised did not “engage” with that question. Any issues between the respondents were “for them to resolve in a separate proceeding”. (para. 9)

The court was satisfied that none of the conditions in s. 50(3)(a) to (d) of the Act were present. It was therefore “required” to grant judgment enforcing the award, which it did in favour of the applicant. (para. 10)

The court denied the applicant’s request for full indemnity costs, holding that the shared facilities agreement did not cover the costs of the application. Centa J. awarded partial indemnity costs against the respondents jointly and severally, payable within 30 days of the order. (para. 11)