{"id":1080,"date":"2020-04-29T10:58:50","date_gmt":"2020-04-29T14:58:50","guid":{"rendered":"http:\/\/limitations.ca\/?p=1080"},"modified":"2020-04-29T10:59:10","modified_gmt":"2020-04-29T14:59:10","slug":"ontario-appealing-from-an-arbitrators-limitations-decision","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=1080","title":{"rendered":"Ontario: appealing from an arbitrator’s limitations decision"},"content":{"rendered":"

The decision in Tall Ships Landing Devt. Inc. v. City of Brockville <\/em><\/a>is a rare example of an appeal to the court from an arbitrator\u2019s limitations decision pursuant to ss. 45(2)<\/a> and 46(1)<\/a> of the Arbitation Act, 1991<\/em><\/a>.\u00a0 The arbitrator found the claim statute-barred without determining when the claims became discoverable or considering the claimant\u2019s appropriateness argument. The application judge held that that the arbitrator\u2019s reasons were inadequate, and asked for further submissions on the appropriate remedy:<\/p>\n

[<\/a>51]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In addition to finding that Tall Ships had waived its right to dispute the City\u2019s determination of its remediation claims the Arbitrator also concluded that its claims were time-barred.\u00a0 For Tall Ships to successfully challenge the dismissal of the claims, it must also show that he erred on the limitations issue.<\/p>\n

[<\/a>52]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In rejecting Tall Ships\u2019 submissions on limitations, the Arbitrator stated summarily that the remediation claims \u201cwere certainly well beyond the two-year limitation period\u201d.\u00a0 He did not address Tall Ships\u2019 argument that it would not have been legally appropriate for it to sue the City at the time. He did not make any finding about when the claims became discoverable.<\/div>\n
[<\/a>53]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The City contends that the Arbitrator\u2019s failure to provide more detailed reasons is not an error of law.\u00a0 It says that the Arbitrator did not need to elaborate on the limitations issue, because his conclusions on that issue were self-evident.\u00a0 I disagree.<\/div>\n
[<\/a>54]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Supreme Court has cautioned that adequacy (or rather inadequacy) of reasons is not, in of itself, a basis for quashing an arbitral award;\u00a0Newfoundland and Labrador Nurses\u2019 Union v. Newfoundland and Labrador (Treasury Board)<\/i>,\u00a02011 SCC 62<\/span><\/a>,\u00a0[2011] 3 S.C.R. 708<\/span>, at para.\u00a014<\/a><\/span>.<\/div>\n
[<\/a>55]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Tall Ships\u2019 counsel points out that the decision in\u00a0Newfoundland Nurses<\/i>\u00a0was not made in the context of an appeal from an arbitral award governed by the\u00a0Arbitration Act<\/i>, and that s. 38(1) of the\u00a0Act<\/i>\u00a0explicitly requires that an arbitral award must state the reasons on which it is based.\u00a0 It also relies on cases (Kalatzis v. Daniels<\/i>,\u00a02002 CarswellOnt 8527 (ONSC)<\/span><\/span>;\u00a0Peters v. D\u2019Antonio<\/i>,\u00a02016 ONSC 7141<\/span><\/a><\/span>) where arbitrators provided no reasons at all.<\/div>\n
[<\/a>56]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In my view, s. 38(1) must be read in light of the principles articulated in\u00a0Newfoundland Nurses<\/i>, because the reasoning in that case is not at odds with the obligation to provide reasons.\u00a0 The question explored by Justice Abella in that case was rather: when are the stated reasons sufficient?\u00a0 The key passage in\u00a0Newfoundland Nurses<\/i>\u00a0at para. 16 on this point applies equally in the context of a review under the\u00a0Arbitration Act<\/i>:<\/div>\n
Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.\u00a0\u00a0 A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion\u2026 .\u00a0\u00a0[I]f the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the\u00a0Dunsmuir<\/i>\u00a0criteria are met.<\/u>\u00a0 [Internal citations omitted, emphasis added.]<\/div>\n

[<\/a>57]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Applying this test, I must consider whether the Arbitrator\u2019s reasons permit me to understand why he concluded that Tall Ships\u2019 remediation claims were time-barred.<\/p>\n

[<\/a>58]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Section 4<\/a>\u00a0of the\u00a0Limitations Act, 2002<\/i>, SO 2002, c 24, Sch B<\/a>. (the \u201cLimitations Act<\/i>\u201d) provides that the applicable limitation period begins to run only when a claim is discoverable.\u00a0 In its written submissions to the Arbitrator, Tall Ships argued that discoverability did not begin to run when it received the City\u2019s responses to its claims, because it did not suffer any immediate loss.\u00a0\u00a0 It further argued that it would have been inappropriate for it to initiate a legal proceeding against the City at the time.<\/div>\n
[<\/a>59]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Ontario Court of Appeal has consistently held that consideration of when a proceeding was an appropriate means to remedy a claim is an essential element in the discoverability analysis.\u00a0 Failure to consider s. 5(1)(a)(iv) of the\u00a0Limitations Act<\/i>\u00a0is an error of law:\u00a0Presley v. Van Dusen<\/i>,\u00a02019 ONCA 66<\/span><\/a>, at para.\u00a015<\/a><\/span>, and the decisions cited therein.<\/div>\n
[<\/a>60]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I infer, based on the Arbitrator\u2019s summary handling of this issue, that he agreed with the City\u2019s submission that the starting point for the two-year limitation period was Tall Ships\u2019 receipt of the City\u2019s responses to the claims.\u00a0\u00a0 There is nothing in the reasons, however, that allows me to understand, or even speculate, as to why the Arbitrator concluded that the claims were discoverable at that time.\u00a0 He does not indicate any basis for finding that Tall Ships sustained a loss, as required under s. 5(1)(a)(i) of the\u00a0Limitations Act<\/i>, or that it was appropriate for it to begin legal proceedings at the time, as required under s. 5(1)(a)(iv).\u00a0 As aptly noted by counsel for Tall Ships, a judge may be required to connect the dots but there must be dots to connect, and there are none here.<\/div>\n
[<\/a>61]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I conclude that the Arbitrator failed to provide any meaningful reasons for the rejection of Tall Ships\u2019 limitation argument, and that there is nothing to indicate that he turned his mind to the discoverability issue.\u00a0 His failure to comply with s. 38(1) of the\u00a0Arbitration Act<\/i>\u00a0permits the court to set the award aside under\u00a0s. 46(1)<\/a>(7).\u00a0 This was not a mere technical noncompliance with the Act, but an error which undermines the fairness of the arbitral process and the ability of the court to ascertain whether the Arbitrator\u2019s award falls within the range of reasonable outcomes.<\/div>\n

[<\/a>187]\u00a0\u00a0 \u00a0\u00a0\u00a0The Arbitrator\u2019s errors were not trivial. They had a clear impact on the outcome of the arbitration. The Awards therefore cannot stand. I am not however in a position to vary the Awards.<\/p>\n

[<\/a>188]\u00a0\u00a0 \u00a0\u00a0\u00a0Recognizing this, counsel for both parties at the hearing before me agreed that, if I concluded that the Arbitrator had made serious, reversible errors, I should solicit further submissions from them on the appropriate remedy. This would give the parties the opportunity to assess the best course of action in light of my reasons.\u00a0 I expect that the parties will also wish to make submissions on costs.<\/div>\n
[<\/a>189]\u00a0\u00a0 \u00a0\u00a0\u00a0I accordingly direct the parties, through counsel, to contact the trial management office in Ottawa to schedule a case management conference before me as soon as reasonably possible, so that a timetable for submissions on remedy and costs may be ordered. I encourage counsel to communicate with each other in advance of the case conference to see if they are able to agree on a timetable and cost order for my review and endorsement.<\/div>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The decision in Tall Ships Landing Devt. Inc. v. City of Brockville is a rare example of an appeal to the court from an arbitrator\u2019s limitations decision pursuant to ss. 45(2) and 46(1) of the Arbitation Act, 1991.\u00a0 The arbitrator found the claim statute-barred without determining when the claims became discoverable or considering the claimant\u2019s … Continue reading Ontario: appealing from an arbitrator’s limitations decision<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[596,65,478,593,594,595],"class_list":["post-1080","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-adequacy-of-reasons","tag-appeals","tag-arbitration","tag-ontario-arbitration-act","tag-ontario-arbitration-act-s-452","tag-ontario-arbitration-act-s-461"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1080","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1080"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1080\/revisions"}],"predecessor-version":[{"id":1082,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1080\/revisions\/1082"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1080"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1080"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1080"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}