In Toronto Standard Condominium Corporation No. 2299 v. Distillery SE Development Corp ("Distillery SE"), 2024 ONCA 712, the Ontario Court of Appeal considered the issue of whether a party could appeal a court order appointing an arbitrator, and in particular, whether that order could be construed as flowing from any statutory provision other than s. 10(2) of the Arbitration Act (the "Act")(which precludes appeals to the court's appointment of an arbitral tribunal).
In quashing the appeal, the Court of Appeal affirmed its limited supervisory role in overseeing arbitrations (including in respect of appointments of arbitrators) and explained when s. 10 of the Act would be triggered.
Below, we review the case and consider the implications of this decision.
Factual Background
Distillery SE Development Corp ("Distillery") and Toronto Standard Condominium Corporation No. 2299 ("2299") were parties to a Shared Facilities Agreement (the "SFA") in respect of a condominium property on 70 Distillery Lane in Toronto.1 The SFA provided a dispute resolution process which included provisions related to negotiation and mediation. In circumstances where a settlement was not achieved through either negotiation or at mediation, disputes under the SFA were to be resolved by way of binding arbitration. The SFA contemplated that any arbitration would be overseen by a single arbitrator.
Disputes arose in 2018 under the SFA. The Parties were unable to resolve these disputes by negotiation or mediation. As a result, 2299 served a Notice of Arbitration (the "2018 Notice") proposing a single arbitrator. On July 24, 2018, the parties agreed in writing (the "July 2018 Agreement") on an arbitrator to proceed with the hearing of the dispute (the "Original Arbitrator"). For reasons not discussed in the case, the arbitration did not proceed before the Original Arbitrator at that time. Subsequently, in 2022, 2299 served a Fresh as Amended Notice of Arbitration (the "2022 Notice") proposing a different arbitrator.
The 2022 Notice generated disagreement between the Parties regarding three issues: (1) whether the new issues in the 2022 Notice should be part of the arbitration; (2) whether an additional party should be added as a party to the arbitration; and (3) who would serve as the arbitrator.
As noted, in the 2022 Notice, 2299 had proposed an arbitrator other than the Original Arbitrator. In response, Distillery reminded 2299 of the existence of the July 2018 Agreement to appoint the Original Arbitrator. Distillery also noted its objection to the 2022 Notice.
In the face of Distillery's objections, 2299 would not confirm the July 2018 Agreement to appoint the Original Arbitrator, but stated instead that it was willing to proceed before him if the arbitration included the new matters in the 2022 Notice.
Based on 2299 not confirming the July 2018 Agreement to appoint the Original Arbitrator, Distillery purported to agree that there was no...
