“There is no doubt that the issue of mobility came up relatively late in the proceedings [arbitration]. However, the father, who was represented throughout, knew of the issue prior to the start of the hearing and neither requested an adjournment nor objected to the issue being addressed.
For eight days while evidence was being presented, he was not impeded from presenting his case, nor from cross-examining the mother or the experts. At no point did he request a further assessment with respect to St. Jude’s to challenge the evidence that the school would benefit the children. Instead, the father simply gave evidence that the children were fine and should stay at their Toronto school.
Having received the evidence of both parties on the mobility issue, the arbitrator preferred the mother’s evidence and found in her favour, as he was entitled to do so: see Arbitration Act, s. 21. The proceedings were not rendered unfair simply because the arbitrator found in favour of the mother on this issue.
The father acquiesced in the notice
The father acquiesced in the late notice. Instead of raising the issue and seeking an adjournment, he proceeded with the hearing, submitting that the children should stay at their school and only raising an objection when the result was not to his liking.
In Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, this court dealt with a challenge to an arbitration decision where the arbitral panel met with a witness ex parte without notice to the parties. On appeal, the appellant, Mr. Popack, who had not objected to such a meeting when the issue was raised during the hearing, argued that the award should be set aside because of this procedural breach. In dismissing the appeal and upholding the arbitral award, this court said, at para. 39:
Mr. Popack sought to gain an advantage in the arbitration proceedings when he learned of the ex parte meeting…[He] positioned himself so that he could decide to raise the issue formally…if he was not satisfied with the award given by the panel. To reward that tactic by setting aside the award would eviscerate the finality principle that drives judicial review of arbitral awards and would cause “a real practical injustice”.
Similarly, here, the father was not entitled to stay silent, participate in the proceedings without objection, wait to see what the ruling was and then claim procedural unfairness when the decision was against him.
Further, the father’s conduct after the hearing confirms his acquiescence in the process. He did not seek a stay of the mobility order but raised the issue for the first time on appeal.
As a general rule, an appellate court will not permit an issue to be raised for the first time on appeal. This rule is grounded, in part, on society’s interests in finality and the expectation that matters will be dealt with at first instance: see R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-40, leave to appeal refused [2016] S.C.C.A. No. 432. This principle is particularly important when the lives of children are impacted by the proceedings.”