Inforica Inc. v. CGI Information, 2009 ONCA 642

• Jurisdiction: Ontario
• Judge: Sharpe, LaForme and Watt, JJ.A.
• Neutral Citation: 2009 ONCA 642
• Citation: 2009 ONCA 642,(2009), 254 O.A.C. 117 (CA),97 OR (3d) 161,311 DLR (4th) 728,[2009] OJ No 3747 (QL),254 OAC 117,80 CPC (6th) 197,97 O.R. (3d) 161,311 D.L.R. (4th) 728,(2009), 254 OAC 117 (CA),[2009] O.J. No 3747 (QL),254 O.A.C. 117
• Date: 24 June 2009
• Court: Court of Appeal (Ontario)

Inforica Inc. v. CGI Information (2009), 254 O.A.C. 117 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. SE.023

Inforica Inc. (applicant/respondent/moving party) v. CGI Information Systems and Management Consultants Inc. (respondent/appellant/responding party)

(C49803; M37192; 2009 ONCA 642)

Indexed As: Inforica Inc. v. CGI Information Systems and Management Consultants Inc.

Ontario Court of Appeal

Sharpe, LaForme and Watt, JJ.A.

September 11, 2009.

Summary:

The applicant (Inforica) and respondent (CGI) agreed to arbitrate a dispute respecting the development of an information management system. An arbitrator granted CGI's motion for security for costs. Inforica applied to set aside the order.

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. O57, allowed the application on the ground that the arbitrator lacked jurisdiction to order security for costs. CGI appealed. Inforica sought to quash the appeal.

The Ontario Court of Appeal dismissed Inforica's motion to quash the appeal, allowed the appeal, and restored the arbitrator's order for security for costs.

Arbitration - Topic 7908

Judicial review (incl. appeals) - Jurisdiction of the courts - Interim rulings - An arbitrator granted CGI's motion for security for costs - An application judge granted Inforica's application to set aside the order - CGI appealed - One issue was whether the application judge had jurisdiction to entertain Inforica's application under s. 17(8) of the Arbitration Act on the basis that the arbitrator's ruling was a "preliminary question" - The Ontario Court of Appeal held that s. 17 was concerned with the arbitrator's jurisdiction to entertain the subject matter of the dispute - Asking an arbitrator to decide whether he had jurisdiction to order security for costs did not amount to asking him whether he had jurisdiction to conduct the arbitration - The words "jurisdiction to conduct the arbitration" in s. 17(1) connoted jurisdiction over the entire substance or subject matter of the case, not jurisdiction to make interlocutory or procedural orders that did not determine the merits of the dispute and that were made along the way to final resolution of the issues - Therefore, s. 17(8) did not apply to confer jurisdiction on the application judge - See paragraphs 16 to 28.

Arbitration - Topic 7908

Judicial review (incl. appeals) - Jurisdiction of the courts - Interim rulings - An arbitrator granted CGI's motion for security for costs - An application judge granted Inforica's application to set aside the order - CGI appealed - One issue was whether the application judge had jurisdiction to entertain Inforica's application under s. 46(1) of the Arbitration Act - The Ontario Court of Appeal held that he did not - The arbitrator's order for security for costs was not an "award" within the meaning of s. 46(1) - The arbitrator aptly labelled his order as a "Procedural Order" and not as an "award" - The Act did not define the term "award", but the term had been held to connote the judgment or order of an arbitral tribunal that "disposes of part or all of the dispute between the parties" - See paragraphs 29 and 30.

Arbitration - Topic 8704

Judicial review (incl. appeals) - Practice - Appeals - Jurisdiction - An arbitrator granted CGI's motion for security for costs - An application judge granted Inforica's application to set aside the order - CGI appealed - The Ontario Court of Appeal, held that, as the application judge had no jurisdiction to entertain the application to set aside the order for security for costs, it had jurisdiction pursuant to s. 6(1)(b) of the Courts of Justice Act to hear CGI's appeal - The application judge's order should be regarded as a final order for the purposes of s. 6(1)(b) - The application to set aside the arbitrator's order was an originating proceeding - It was the only matter before the court - The application judge's order finally disposed of the originating proceeding - It should, therefore, be regarded as a final order for the purposes of appeal, even though it did not finally resolve the matters in dispute in the other forum, namely the arbitration - See paragraphs 31 to 34.

Practice - Topic 8984

Appeals - When appeal available - From final judgment or order - [See Arbitration - Topic 8704 ].

Cases Noticed:

Unione Stearinerie Lanza and Weiner, Re, [1917] 2 K.B. 558 (C.A.), refd to. [para. 11].

Toronto-Dominion Bank v. Szilagyi Farms Ltd. and Szilagyi (1988), 29 O.A.C. 357; 65 O.R.(2d) 433 (C.A.), refd to. [para. 11].

Ontario Hydro v. Denison Mines Ltd., [1992] O.J. No. 2948 (Gen. Div.), refd to. [para. 14].

Environmental Export International of Canada Inc. v. Success International Inc., [1995] O.J. No. 453 (Gen. Div.), refd to. [para. 18].

Tescor Energy Services Inc. v. Toronto District School Board, [2002] O.T.C. Uned. 22 (Sup. Ct.), refd to. [para. 18].

K/S A/S Biakh v. Hyundai Corp., [1988] 1 Lloyd's Rep. 187 (Q.B. Com. Ct.), refd to. [para. 18].

Ramot Gil Development Corp. and Precision Homes Corp., Re (1979), 27 O.R.(2d) 199 (Div. Ct.), refd to. [para. 21].

Susin v. Chapman et al., [1998] O.A.C. Uned. 295; 1998 CanLII 3224 (C.A.), refd to. [para. 25].

Shuter et al. v. Toronto-Dominion Bank et al., [2007] O.T.C. Uned. 174; 2007 CanLII 37475 (Sup. Ct. Master), refd to. [para. 25].

Laurentian Plaza Corp. v. Martin et al. (1992), 54 O.A.C. 329; 7 O.R.(3d) 111 (C.A.), refd to. [para. 26].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 27].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 27].

Huras v. Primerica Financial Services Ltd. (2000), 137 O.A.C. 79 (C.A.), refd to. [para. 31].

Brown v. Murphy (2002), 159 O.A.C. 75; 59 O.R.(3d) 404 (C.A.), refd to. [para. 31].

Smith Estate et al. v. National Money Mart Co. et al. (2008), 243 O.A.C. 173; 92 O.R.(3d) 641 (C.A.), refd to. [para. 31].

Buck Brothers Ltd. et al. v. Frontenac Builders Ltd. et al. (1994), 73 O.A.C. 298; 19 O.R.(3d) 97 (C.A.), refd to. [para. 33].

Double N Earthmovers Ltd. v. Edmonton (City) et al., [2007] 1 S.C.R. 116; 356 N.R. 211; 401 A.R. 329; 391 W.A.C. 329, refd to. [para. 36].

Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711; 77 N.R. 161; 21 O.A.C. 321, refd to. [para. 36].

Statutes Noticed:

Arbitration Act, S.O. 1991, c. 17, sect. 17(1), sect. 17(8), sect. 46(1) [para. 9].

Authors and Works Noticed:

McEwan, J. Kenneth, and Herbst, Ludmila B., Commercial Arbitration in Canada (2008), p. 9:30.10 [para. 29].

Counsel:

F. Paul Morrison and Christopher M. Hubbard, for the appellant/responding party;

John A. Campion, J. Gardner Hodder and Guillermo Schible, for the respondent/moving party.

This appeal and motion were heard on June 24, 2009, by Sharpe, LaForme and Watt, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered by Sharpe, J.A., on September 11, 2009.