Author: dawi

“Sections 4 and 5 of the Limitations Act, 2002 reads as follows:

Basic limitation period

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.  2002, c. 24, Sched. B, s. 4.

Discovery

5 (1)  A claim is discovered on the earlier of,

            (a) the day on which the person with the claim first knew,

(i)   that the injury, loss or damage had occurred,

(ii)  that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).  2002, c. 24, Sched. B, s. 5 (1).

Presumption

(2)  A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.  2002, c. 24, Sched. B, s. 5 (2).

Section 4 of the Limitations Act, 2002 was referred to by the Court of Appeal for Ontario in Studley v. Studley, 2022 ONCA 810 whereby the Court of Appeal acknowledged the difference between the two-year limitation period under the Limitations Act, 2002 and the 10-year limitation period pursuant to section 4 of the Real Property Limitations Act, RSO 1990, c L.15. In that case, the two-year limitation period did not apply because the claim was being made in respect of a trust interest in land.

In McConnell v. Huxtable, 2014 ONCA 86, 370 DLR (4th) 554 the Court of Appeal considered the tension between s. 4 of the Limitations Act, 2002 and s. 4 of the Real Property Limitations Act. Briefly stated, if the Limitations Act, 2002 applies, a claim for equitable relief can be statute barred.  In McConnell, the issue was that the appellant claimed an interest in land, with an alternative claim for monetary compensation.  In the end, the Court of Appeal acknowledged that it was open to the legislature to prescribe different limitation periods for unjust enrichment actions where the claim is for a proprietary remedy and that an equitable claim such as a claim for unjust enrichment is caught by s. 4 of the Limitations Act, 2002.”

            Boutin v. Lucitt, 2023 ONSC 2753 (CanLII) at 68-70

“An assessment under s. 30 is not to be ordered routinely. If the court is in a position to reasonably decide the issue without the assessment it should not be ordered. The assessment must be reasonably necessary to assist the court in determining the issues before it (Kramer v. Kramer, (2003) RFL (5^th) 381; 2003 CanLII 64318 (ON SC), [2003] CarswellOnt 1228 at para. 36, 41). A “clinical issue” is not required before an assessment order is made (Glick v. Cale, 2013 ONSC 893 at paras. 40-46). The court also must consider whether the intrusive and time-consuming nature of an assessment would outweigh its benefits (Kramer at para. 51)

The burden is on the party seeking the assessment to demonstrate that it is reasonably necessary.

In Glick, Kiteley J. outlined a non-exhaustive list of criteria to consider in determining whether an assessment is reasonably necessary, as follows:

a.   What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

b.   Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

c.   Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

d.   Do the parents have a mutual disregard for the other parent’s ability to parent?

e.   Do the parents blame each other for the dysfunction each describes?

f.   Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

g.   Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

h.   What is the age of the child at separation and at the time of the request for the assessment?

i.   Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

j.   Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

k.   Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

l.   What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

m.   What is the estimated cost? Do the parents have the financial resources to pay that cost?

n.   Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

o.   Is an assessment in the best interests of the child?”

            Rosen v. Rosen, 2023 ONSC 3022 (CanLII) at 6-8

“In Carey v. Laiken, 2015 SCC 17 (S.C.C.), at para. 38, the court described the requisite mental element of contempt as follows:

38      It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Prescott-Russell, at para. 27; College of Optometrists, at para. 71; Sheppard, at p. 8; TG Industries, at paras. 17 and 32; Bhatnager, at pp. 224-25; Sharpe, at ¶6.190. The Court of Appeal followed this approach. As it noted, to require a contemnor to have intended to disobey the order would put the test “too high” and result in “mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge” (2013 ONCA 530 (Ont. C.A.) (para. 59). Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt: para. 62; see also Sheppard; and Sharpe, at ¶6.200.

A party seeking a finding of contempt must therefore only prove that the alleged contemnor intentionally did not do what was required under the order. The absence of contumacious intent is a mitigating but not an exculpatory circumstance:  Sheppard, Re, 1976 CanLII 710 (ON CA), [1976] 67 D.L.R. (3d) 592 (Ont. C.A.), at 595-596.

In Moncur v. Plante, 2021 ONCA 462, at para. 10, the Ontario Court of Appeal set out concisely the general principles that govern the use of the court’s power to find a party in contempt for breaching a court order, as follows:

10      The following general principles govern the use of the court’s power to find a party in civil contempt of court for breaching a court order:

1. 1. 1. 1. 1. 1. 1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
                  2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799 Ont. C.A., 33 R.F.L. (8th) 19, at paras. 9–12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385 Ont. C.A., 25 R.F.L. (8th) 144, at paras. 18–19.
                  3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

At paras. 19 and 20, the court addressed the importance, especially in family law cases, of considering alternatives to contempt as follows:

19      I do, however, agree with the appellant’s argument that the motion judge did not appear to consider whether a declaration of contempt was a remedy of last resort or whether there were alternative enforcement options, such as a declaration that the appellant had breached the order or encouraging professional assistance. Without considering any alternative options, he appears to have proceeded directly from conclusions that the appellant intentionally breached the parenting order to declarations of contempt. Although the motion judge had earlier properly held the contempt ruling in abeyance to allow the parties to arbitrate their parenting conflicts, and offered to help the parties resolve their issues, his reasons do not suggest that he considered other enforcement options in lieu of ultimately making his declarations of contempt. The motion judge had to consider not only when he should issue his decision on the contempt motion, but also whether he should exercise his discretion to resort to a less severe enforcement option than declaring the appellant in contempt of court. In fairness to the motion judge, such other options do not appear to have been raised by the appellant, who was self-represented, or by the respondent. Even so, I conclude that it was an error of law not to have considered such options: Chong, at para. 12.

20      It is especially important for courts to consider such options in high-conflict family disputes such as this one: Chong, at para. 12; Valoris, at para. 41. Otherwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children. In appropriate cases, a staged approach, in which a declaration of breach precedes the opprobrium of a formal contempt order, can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children. When, however, the court considers that a contempt order is truly a last resort and would not work an injustice, it may still decide in its discretion to make a formal order of contempt.”

            Carey v. Carey, 2024 ONSC 2516 (CanLII) at 48-51

“The onus is on the Respondent to prove the value of the jewellery on the date of marriage and the date of valuation pursuant to s. 4(3) of the FLA because the jewellery is in her possession: Pulitano v. Pulitano, 2010 ONCA 64.

As observed by the Court of Appeal in Pulitano, that onus might be discharged by the owner spouse’s testimony of the estimated value (absent credible contrary evidence): at para. 5.”

            Merchant v. Amir Ali, 2024 ONSC 2522 (CanLII) at 44-45

“The question for the Court is whether joint decision-making responsibility for the decisions impacting the children is appropriate. The amendments to the Children’s Law Reform Act demonstrate that there remains only one applicable standard: the best interests of the child. The interests of the parents are entirely secondary. They come into play only in terms of their relevance to the best interests of the child. In determining the best interests of a child, the court is to give primary consideration to the child’s physical, emotional and psychological safety, security and well being: s.24(2).

The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:

a.   There must be evidence of historical communication between the parents and appropriate communication between them.

b.   Joint custody cannot be ordered in the hope that it will improve communication.

c.   Just because both parents are fit does not mean that joint custody should be ordered.

d.   The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

e.   No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

f.   The younger the child, the more important communication is.

Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests: see Graham v. Butto, 2008 ONCA 260 and Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872 (CA).

Courts require evidence that the parties are able to communicate effectively, since joint custody requires that they make long-term decisions together regarding the child.  A standard of perfection is not required, and is obviously not achievable: see Grindley v. Grindley 2012 CarswellOnt 9791 (SCJ).  The issue is whether a reasonable measure of communication and cooperation is in place and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis: Warcop v. Warcop 2009 CanLII 6423 (ON SC).

Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour: see Geremia v. Herb 2008 CanLii 19764 (ON SC).

A mere statement by one party that there is an inability to communicate will not preclude an order for joint custody.  The court must carefully consider the parties’ past and present parenting relationship as a whole, and not place undue emphasis on their allegations of conflict, or on the conflict existing at the time of trial: see Grindley v. Grindley, supra at para. 211.

Joint custody allows each parent authority to make decisions concerning his or her children. Absent a demonstrated ability by parents to cooperate in making those decisions an order for joint custody has the potential to increase conflict between parents. That potential must be carefully weighed and considered in relation to the specific circumstances of each case. Parental conflict is a significant risk factor for children, particularly when the conflict is long standing and progressive: Antemia v. Divitor, 2019 ONSC 678, at para. 91.”

            Ammar v. Smith, 2021 ONSC 3204 (CanLII) at 81-87

“Well aware that Geropoulos involved settlement negotiations in the midst of active litigation, and thus that he was extending an existing principle, [in Pastoor v. Pastoor, 2007 CarswellOnt 4661 (Ont. S.C.J.) Justice Perrell] His Honour wrote: “it is arguable that what Robins, J.A. was saying … is that the formalities of s. 55(1) of the Family Law Act are not necessary when a settlement is negotiated freely and properly entered into with lawyer’s advice whether or not there was pending litigation.” His Honour went on to quote extensively from Scherer v. Paletta a well-known decision of the Court of Appeal addressing the ability of retained counsel to compromise a client’s position in reaching a binding settlement of active personal injury litigation.

For clarity, Justice Perell was being asked to cure the absence of the signature of one party and a witness on a half-signed domestic contract. His Honour did so on the basis that the terms of settlement had been negotiated freely and with the benefit of legal advice. I am being asked to extend that judicial involvement even further. I am being asked to deem an exchange of correspondence between counsel, pre-litigation, to be a valid and enforceable domestic contract. I conclude that I cannot do so for the following reasons:

a. Statutory Construction

A first principle of statutory construction is the presumption that the parliamentary body enacting the legislation crafted its language carefully.

Section 55(1) of the Family Law Act is clearly exclusive in nature. It provides three requirements that must be met in order for a document to be a “domestic contract.” The three requirements are that the document be in writing, signed by the parties and witnessed. In the absence of these three requirements, the document is not a domestic contract.

Further, section 56(4) sets out three situations in which a domestic contract may be set aside:

56.  (4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

Notably, there is no mention of legal advice being a necessary prerequisite to the existence of a contract or of its absence being a trigger for the setting aside of a domestic contract.

b.  Scope of Retainer – Negotiation vs. Litigation

There is an important distinction between the involvement of counsel retained to negotiate pre-litigation and counsel retained to conduct litigation. This distinction is evident in the rules of court in all areas of practice. Litigation counsel are served with court documents and regularly attend court in the absence of their clients. This is true even in serious criminal matters, where a Designation of Counsel form may be filed with the Court under section 650.01 of the Criminal Code of Canada which alleviates the need for the accused to be present at all court appearances.

c.  Requirement of Legal Advice

In my view, relaxing the Family Law Act formalities to deem an exchange of pre-litigation correspondence to be a domestic contract as a result of the availability of legal advice actually exacerbates the uncertainty in family litigation. The foundation upon which such a principle would be based – the availability of legal advice – is unstable. Questions come to mind such as:

(1) What does “legal advice” look like, exactly? Is there a demarcation point compelling the announcement of the involvement of the advising lawyers if parties are otherwise negotiating smoothly between themselves? Do the advising lawyers have to communicate with one another in writing? Will this cause a chilling effect on the provision of “unbundled” legal services?¹²

(2) Are retainer agreements regarding the scope of pre-litigation counsel to automatically become material evidence when an alleged correspondence-based settlement is disputed? Does this mean that pre-litigation counsel must refer the client to another lawyer in every case of failed settlement negotiation lest he or she become a potential witness in the litigation?

(3) What if only one party has legal advice? What is the assessment process around the other party’s need for legal advice?

(4) What if a party’s unique vulnerabilities are not compensated for by legal advice?

(5) What if a party alleges that he or she received bad advice?

(6) Is there a strong public policy reason to add a legal advice factor to alleged settlements when Courts routinely uphold fully-compliant domestic contracts where no legal advice was obtained?

d.   General Uncertainty

Separation and divorce are characterized by uncertainty at the outset and often by a continuing absence of closure as the litigation unfolds. This can be the case even where spouses understand themselves to be bound by Court Orders, which may be appealed or subsequently altered due to a material change in circumstances. If Court oversight is not a guarantee of closure, it is essential to avoid any confusion regarding the specific requirements of pre-litigation settlement so as to allow separating spouses to move forward with their lives. To raise an exchange of correspondence to the level of a binding domestic contract, absent clear legislative authority, would be to extend judicial involvement too far and contribute to increased uncertainty in matrimonial settlement negotiations.”

            Greve v. Shaw, 2022 ONSC 2598 (CanLII) at 22-23

“The Applicant requests an order for the payment of interim disbursements in the amount of $152,657.34.  The disbursements represent the estimated costs of a responding income valuation, a vocational assessment and Ms. Vohra’s costs of her lawyer conducting the arbitration, the arbitration appeal as well as the trial and questioning.

The jurisdiction for an order for interim disbursements can be found in r. 24(18) which reads as follows:

The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.

The leading case on issues of interim disbursements in Ontario remains Stuart v. Stuart, 2001 CanLII 28261 (ON SC), [2001] O.J. No. 5172 (S.C.J.) despite the fact that the case is more than 20 years old.  Rogers J. decided the case and conducted a comprehensive review of the case law, determining at para. 8 of the case certain “themes” regarding cases under the then r. 24(12) (now r. 24(18)):

1)  The ordering of interim disbursements is discretionary: Airst v. Airst, [1995] O.J. No. 3005 (Gen. Div.); Hill v. Hill (1988), 1988 CanLII 4710 (ON SC), 63 O.R. (2d) 618 (H.C.) and Lossing v. Dmuchowski, [2000] O.J. No. 837 (Ont. S.C.J.).

2)  A claimant must demonstrate that absent the advance of funds for interim disbursements, the claimant cannot present or analyse settlement offers or pursue entitlement: Hill v. Hill (1988), 1988 CanLII 4710 (ON SC), 63 O.R. (2d) 618 (H.C.) and Airst v. Airst, [1995] O.J. No. 3005 (Gen. Div.).

3)  It must be shown that the particular expenses are necessary: Lossing v. Dmuchowski, [2000] O.J. No. 837 (S.C.J.).

4)  Is the claim being advanced meritorious? Lynch v. Lynch (1999), 1 R.F.L. (5th) 309 (Ont. S.C.J.) and Randle v. Randle (1999), 1999 ABQB 954 (CanLII), 3 R.F.L. (5th) 139 (Alta. Q.B.).

5)  The exercise of discretion should be limited to exceptional cases: Organ v. Barnett (1992), 1992 CanLII 7433 (ON SC), 11 O.R. (3d) 210 (Gen. Div.).

6)  Interim costs in matrimonial cases may be granted to level the playing field: Randle v. Randle (1999), 1999 ABQB 954 (CanLII), 3 R.F.L. (5th) 139 (Alta. Q.B.).

7)  Monies might be advanced against an equalisation payment: Zagdanski v. Zagdanski, 2001 CanLII 27981 (ON SC), 2001 CarswellOnt 2517 (S.C.J.)

She notes later in the case that the suggestion that interim disbursements only be granted in “exceptional” cases was tempered, to some extent:

The court interprets the new Family Law Rules to require the exercise of the discretion in rule 24(12) on a less stringent basis than the cases that call for such only in exceptional cases. The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible go to trial. Simply described, the award should be made to level the playing field.

In Rea v. Rea, 2016 ONSC 382, Douglas J. followed both Stuart and British Columbia (Minister of Forests) v. Okanogan Indian Band, [2003] S.C.C. 71 in suggesting the following three criteria for an award of interim disbursements and costs:

(a) The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case;

(b) The claimant must establish a prima facie case of sufficient merit to warrant pursuit; and

(c) There must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.

In Rea, Douglas J. surveyed a number of cases in which interim disbursements were awarded in a range of between $100,000 to $500,000.

What is also clear from the caselaw is that a party’s case must have sufficient merit to obtain an award for interim disbursements.  As stated by Rogers J., the award of interim disbursements should not give someone a license to litigate.

It is to be noted that the party who is requesting interim disbursements does not have to prove that he or she is impecunious.  That party just has to show that they are incapable of funding the litigation from any other source.  In Woodburn v. Woodburn, 2016 ONSC 6694, Emery J. suggested [at para. 29]:

Although the moving party need not provide evidence that she or he could not carry the case but for the financial assistance requested, the court should have evidence that there is a risk that the moving party who has a meritorious case worthy of pursuit will not have the resources to pursue the claim without that financial assistance.”

            Vohra v. Vohra, 2023 ONSC 2443 (CanLII) at 65-72

“Recent amendments to the Divorce Act and provincial family legislation have highlighted the importance of taking into consideration the presence of family violence in any family matter dealing with the parenting of children: See also Barendregt v. Grebliunas, 2022 SCC 22. The Divorce Act specifically recognizes that findings of family violence are a critical consideration in the best interest analysis: see ss. 16(3)(j) and (4).

Family violence is broadly defined in s. 2(1) of the Divorce Act as “any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person”. In the case of a child, family violence includes “the direct or indirect exposure to such conduct”. Section 2(1) provides a non-exhaustive list of the many forms of family violence which include physical abuse, forced confinement, sexual abuse, threats to kill or to harm, harassment including stalking, psychological abuse, and financial abuse.

Coercive control as a form of family violence is a pattern of intimate partner abuse which has been the focus of much academic research over the past several years, and has been exposed increasingly in recent court’s decisions, including by the Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22. In a very recent research study commissioned by the Department of Justice Canada, the authors described coercive control as a pattern of abusive behaviours used to control or dominate a family member or intimate partner. They explain the following at p. 18:

The behaviours that are the spokes and rims of the wheel, such as economic abuse, intimidation, minimizing, denying, blaming and physical and sexual abuse, are used by the abusive person to maintain the pattern of coercive control. Understanding patterns of abuse is also an important counter to “gaslighting” (extended psychological manipulation of a victim that leads them to question the validity of their own thoughts and reality) by perpetrators of abuse, who often embrace an incident-based definition of domestic violence to disconnect their actions from one another in time and space, thereby allowing them to minimize their violence as “not that bad” and to support victim-blaming.

Coercive control may involve a range of behaviours during a relationship, and following separation, including the following:

–   Intimidation, making threats to harm the victim or themselves (self-harm, suicide);

–    Minimizing and denying the abuse;

–    Isolating the victim from friends, family, or work/school;

–    Emotional abuse such as constant criticism and degrading verbal abuse;

–    Economic abuse and control; and

–    Stalking and monitoring.

Coercive and controlling behaviour has been found to encompass the following types of behaviours as well:

–   Making numerous unsubstantiated allegations against the other party;

–   Unilaterally changing court-ordered parenting time terms without justification; and,

–    Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent: M.A.B. v. M.G.C., 2022 ONSC 7207, at para. 187.”

Ginese v. Fadal, 2024 ONSC 2427 (CanLII) at 121-125

“With respect to items #5 and #6, first, I cannot make an order for a finding of contempt with respect to alleged lies told to a judge at a conference or for allegedly bribing or influencing witnesses.  The first requirement for proving contempt is that it must be contempt of a court order.  The Applicant has not referred to court orders.  There may be different routes to address her concerns about items #5 and #6, but it is not by bringing a motion for contempt of a court order.  Further, conferences are confidential. Statements made at conference cannot be disclosed to any other judge except in very limited circumstances.  Rule 17(23) states:

(23) No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,

(a)  an agreement reached at a settlement conference; or

(b)  an order. O. Reg. 114/99, r. 17 (23). [emphasis added]”

          Shaganenko v. Shaganenko, 2021 ONSC 3042 (CanLII) at 8

“Arbitrators, like judges, are required to follow the law of the land. Section 31 of the Arbitration Act, 1991 provides:

Application of law and equity

31 An arbitral tribunal shall decide a dispute in accordance with law, including equity, and may order specific performance, injunctions and other equitable remedies.

In Omers Realty Corp. v. Sears Canada Inc. (2005), 2005 CanLII 3983 (ON SC), 74 O.R. (3d) 423 (S.C.), at para. 22, aff’d (2006), 2006 CanLII 16477 (ON CA), 80 O.R. (3d) 561 (C.A.), Pepall J. (as she then was) explained at para. 22:

Section 31 of the Arbitration Act, 1991 provides that an arbitral tribunal is to decide a dispute in accordance with the law. The arbitration represents a process to address a dispute; it does not confer jurisdiction to ignore or rewrite the law and established legal principles. Put differently, the arbitration provision does not confer on the arbitrators the ability to do what they please unencumbered by applicable legal principles.

There are many sources of law. The courts do not have a monopoly on establishing the content of the law. But the Arbitration Act, 1991 creates a hierarchy that feeds into the judicial hierarchy and attracts the doctrine of stare decisis. Section 37 of the statute provides:

Binding nature of award

37 An award binds the parties, unless it is set aside or varied under section 45 or 46 (appeal, setting aside award).

Subsection 45(5) of the Arbitration Act, 1991 provides,

Idem

(5) The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court’s opinion on the question of law, in the case of an appeal on a question of law, and give directions about the conduct of the arbitration.

The effect of these provisions is that once an arbitrator’s decision is set aside, it no longer binds. The court is expressly provided with the authority to opine on questions of law and to give directions to the arbitrator in consequence. It is implicit in the section and consonant with stare decisis and common sense, that the court’s determination of the law and the court’s directions do indeed bind the arbitrator as they bind the parties.”

Eyelet Investment Corp. v. Song, 2024 ONSC 2340 (CanLII) at 31-35