“What Bilah is seeking from this Court does not fall under the scope of s.6 of the Arbitration Act. Rather, Bilah argues that the Arbitrator’s finding that he lacked jurisdiction to make the financial disclosure order she requested is the reason she comes to this Court asking for relief.
There are cases where this Court has made financial disclosure orders in the context of a family law case in the midst of an arbitration. However, these orders have been made generally to compel a non-party to make disclosure because he/she or a company have not been a party to the Mediation/Arbitration agreement and, as a result, the Arbitrator has no jurisdiction over the non-party.
For example, in Garnet v. Garnet et. al., 2016 ONSC 949 (CanLII), Jarvis, J. considered a request by the wife for financial disclosure which the husband claimed was in the possession and control of a third party in the midst of an arbitration. Since the third party was not bound by the arbitration agreement, the arbitrator had no jurisdiction to order production against him. Jarvis, J. held that the arbitrator’s lack of jurisdiction “does not preclude this court from ordering such disclosure in appropriate circumstances.”
At paragraphs 10-13, Jarvis, J. stated:
[10] Family law arbitrations are governed by the Arbitrations Act, S.O. 1991, c. 17 and the Family Law Act and, in the event of a conflict, the latter Act prevails. Paragraph 9.7 of the parties’ Arbitration Agreement requires the parties, unless they agree otherwise, to comply as in court proceedings with the Family Law Rules.
[11] Family Law Rules 19 (11) and 20 (24) deal with documentary disclosure from a non-party and the confidentiality obligation imposed on the recipient of that disclosure.
(11) If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,
(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and
(b) order that a copy be prepared and used for all purposes of the case instead of the original.
(24) When a party obtains evidence under this rule, rule 13 (financial disclosure) or rule 19 (document disclosure), the party and the party’s lawyer may use the evidence and any information obtained from it only for the purposes of the case in which the evidence was obtained, subject to the exceptions in subrule (25).
[12] The third party in this case is not a signatory to, or bound by, the Arbitration Agreement signed by the spousal parties and so the arbitrator has no jurisdiction to order production against him. But that does not preclude this court from ordering such disclosure in appropriate circumstances: Lafontaine v. Maxwell, 2014 ONSC 700 (CanLII).
[13] In Lafontaine, disclosure was ordered from non-party business associates of the husband. Accepting that considerable efforts had already been made by the husband and non-party in that case to answer the wife’s information requests, the court was not prepared to disagree with the arbitrator’s decision that certain specified information needed to be produced. This case is little different in my view. No appeal was taken by the husband to the award made by the arbitrator on May 20, 2015 that documents be produced and, equally as pertinent, the arbitrator expressed no view about the relative probity of the disclosure sought.”