Ontario – court’s willingness to continue in obiter and determine key issue in appeal treated as decision on merits

In BGOI Films Inc. v. 108 Media Corporation, 2019 ONCA 539, the Ontario Court of Appeal quashed attempts to appeal a decision which denied leave to appeal an award and then a decision which recognized and enforced the award.  In reasons best described as brief, the Court held that no appeal lies from a refusal to grant leave when that refusal is based on the merits.  Having dismissed that appeal, no grounds remained to give the court jurisdiction to refuse to recognize and enforce the award and the second appeal no longer had a basis.

108 Media Corporation (“108”) have that award recognized and enforced.  In 108 Media Corporation v. BGOI Films Inc., 2019 ONSC 880, Mr. Justice Mario D. Faieta dismissed 108’s appeal and granted BGOI’s application to recognize and enforce the award.  See the earlier Arbitration Matters note “Ontario – “final and binding” means “final and binding”” for more background on the underlying dispute and the submissions and reasoning in first instance.  Disagreement over costs lead to another decision by Faieta J. in 108 Media Corporation v. BGOI Films Inc., 2019 ONSC 2211.

108 filed two (2) separate appeals.  First, it appealed the decision denying leave.  Second, it then appealed the decision recognizing and enforcing the award.  BGOI applied to quash both appeals.  108’s counsel appeared “as a courtesy to the court” but did not otherwise respond to BGOI’s applications.

First appeal or court file “C66668” – BGOI argued that the Court of Appeal has no jurisdiction to hear an appeal from a decision refusing leave to appeal under section 45(1) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 where the refusal is based on lack of jurisdiction.

The Court of Appeal determined that it need not consider that issue as it had other grounds on which to resolve the appeal.

[3] We need not address this issue given that no appeal lies to this court from a refusal to grant leave to appeal where that refusal is based upon the merits. Although the application judge found that he was without jurisdiction to entertain the matter, he went on in any event and decided the matter on its merits, deciding that neither of the questions that he was called upon to decide raised questions of law. No appeal lies from an order granting or refusing leave to appeal on the merits.

[4] Accordingly, we would quash the appeal in the matter of C66668.

Second appeal or court file “C66669” – The next appeal for was solved by the result identified by the Court on the first appeal.

[5] The applicant also seeks to quash the appeal in C66669, an appeal from the decision recognizing and enforcing the arbitral award dated December 11, 2017. Section 50(3) of the Arbitration Act deprives a judge of jurisdiction to refuse to enforce an arbitral award except in certain circumstances, none of which apply here. The fact of quashing the appeal in C66668 means that there is no basis upon which to continue this appeal and that the arbitral award must be enforced.

[6] Accordingly, the appeal in C66669 is also quashed.

urbitral note – By para. 30 of his reasons, Faieta J. had determined that the parties had not agreed to allow appeals on a question of law and, is so doing, dealt with the jurisdiction to consider granting leave.  Having determined that the parties had not granted the court jurisdiction, at para. 31 and further, he did offer his opinion on whether the issues raised were genuine questions of law. 

In doing so, Faieta J. moved his decision within those grounds asserted by the Court of Appeal on the first appeal, court file C66668. Though determinative, his decision passed without mention in the Court of Appeal’s brief reasons. In particular, Faieta J. at para. 31 of his reasons acknowledged that he had dealt with the appeal but then offered his opinion on the merits of the appeal.

[31] Although, I have concluded that there is no right to seek leave to appeal on a question of law under the SAA, I will briefly turn to one further matter raised by108.

The apparent obiter was not treated as obiter at the appeal level and supported quashing 108’s appeal.

For ease of reference, sections 45(1) and 50(3) read as follows:

45(1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,

(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and

(b) determination of the question of law at issue will significantly affect the rights of the parties.

and,

50(3) The court shall give a judgment enforcing an award made in Ontario unless,

(a) the thirty-day period for commencing an appeal or an application to set the award aside has not yet elapsed;

(b) there is a pending appeal, application to set the award aside or application for a declaration of invalidity;

(c) the award has been set aside or the arbitration is the subject of a declaration of invalidity; or

(d) the award is a family arbitration award.