What is a Court for s. 1 of the Arbitration Act (Ontario)

In Kolupanowicz v. Cunnison, 2009 CanLII 20350 (ON S.C.) at
http://www.canlii.org/en/on/onsc/doc/2009/2009canlii20350/2009canlii20350.html
the issue was the meaning of "court in s. 1 of the Arbitration Act. The jurisdiction to appoint an arbitrator is limited to the "court" as defined n the Arbitration Act. S. 1 defines it as the Superior Court of Justice. While the Family Court is a branch of the Superior Court of Justice it is a distinct branch.

"...[1] When drafting a separation agreement with a provision for arbitrating future disputes, it would be wise to include a mechanism for selecting the arbitrator. An ounce of anticipation is worth a pound of litigation...

...(g) arbitrator required where negotiation/mediation fails

[20] Notwithstanding use of the word “will,” the separation agreement calls for binding arbitration as a last resort:

10.5 If negotiations and/or mediation have not resulted in a resolution of the difference between them they will submit the issue in dispute to binding arbitration, pursuant to the provisions of the Arbitration Act.


(h) no mechanism for appointment of arbitrator

[21] Paragraph 9.2 of the separation agreement requires the parties “to go to a mutually agreed upon mediator/arbitrator,” but where agreement is not possible, no mechanism is provided for the appointment of either. Similarly, paragraph 10.5 of the separation agreement requires arbitration, but nothing is said about how to select the arbitrator. Therefore, the appointment of an arbitrator is governed by the Arbitration Act, 1991... (my emphasis)...

...Discussion

jurisdiction of Superior Court of Justice

[61] “The Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario”: see s. 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

jurisdiction of Family Court as a branch of the Superior Court of Justice

[62] Subsection 21.1(1) of the Courts of Justice Act creates the Family Court:[7]

21.1(1) There shall be a branch of the Superior Court of Justice known as the Family Court . . .

Although the Family Court is a branch of the Superior Court of Justice, it is a separate and distinct court.

[63] The Family Court “has the jurisdiction conferred on it by [the Courts of Justice Act] “or any other Act”: see s. 21.1(3) of the Courts of Justice Act.

[64] “In the parts of Ontario where the Family Court has jurisdiction,” proceedings under certain family law statutes (listed in the Schedule to s. 21.8 of the Courts of Justice Act) “shall be commenced, heard and determined in the Family Court”: see s. 21.8(1) of the Courts of Justice Act. The Arbitration Act, 1991 is not one of the listed statutes.[8]

[65] “Where a proceeding referred to in the Schedule to section 21.8 [of the Courts of Justice Act] is commenced in the Family Court and is combined with a related matter that is in the judge’s jurisdiction but is not referred to in the Schedule, the court may, with leave of the judge, hear and determine the combined matters”: see s. 21.9 of the Courts of Justice Act.

[66] According to the Schedule to s. 21.8, the Family Court does not have jurisdiction over proceedings under the Arbitration Act, 1991 except where specifically conferred or where the matter falls under s. 21.9.

“court” under the Arbitration Act, 1991

[67] Section 1 of the Arbitration Act, 1991 defines “court,” except in sections 6 and 7, as the Superior Court of Justice. (Section 7 deals with staying court proceedings and s. 6 refers to the limited scope of permissible court intervention “in matters governed by this Act.”)

jurisdiction to appoint arbitrator

[68] Section 10(1)(a) of the Arbitration Act, 1991 grants jurisdiction to the “court” to appoint an arbitrator “on a party’s application, if, . . . the arbitration agreement[9] provides no procedure for appointing” an arbitrator (and presumably where the parties cannot agree).

[69] There is no general juridical authority to appoint an arbitrator. The power to make such an appointment is limited to the “court,” as defined in the Arbitration Act, 1991, that is to say, the Superior Court of Justice.

[70] Any inclination to blur the distinction between the Family Court and the Superior Court of Justice ends when one reads s. 45(6) of the Arbitration Act, 1991. That section draws a distinction between the two courts:

45(6) Any appeal of a family arbitration award lies to,

(a) the Family Court, in the areas where it has jurisdiction under subsection 21.1(4) of the Courts of Justice Act;

(b) the Superior Court of Justice, in the rest of Ontario.

The drafters of the Arbitration Act, 1991, therefore, were alive to the different jurisdictions of the two courts.

[71] If the legislature had intended “court,” as defined in s. 1 of the Arbitration Act, 1991, to include the Family Court, it would have been a simple matter to add that court to the definition.

[72] All of this is consistent with s. 21.8 of the Courts of Justice Act which gives jurisdiction to the Family Court over proceedings undertaken pursuant to enumerated family law statutes in the Schedule and the Arbitration Act, 1991, is not one of those statutes.

could the Family Court ever have jurisdiction?

[73] Based upon s. 21.9 of the Courts of Justice Act, if an application to appoint an arbitrator were to be combined with a proceeding commenced in Family Court and referred to in the Schedule to s. 21.8, the Family Court judge may grant leave to hear and determine both matters. However, that is not the situation here. The request for the appointment of an arbitrator is not combined with a Schedule proceeding....