Popack et al. v. Lipszyc, (2016) 348 O.A.C. 341 (CA)

JudgeDoherty, Pardu and Benotto, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateFebruary 18, 2016
JurisdictionOntario
Citations(2016), 348 O.A.C. 341 (CA);2016 ONCA 135

Popack v. Lipszyc (2016), 348 O.A.C. 341 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. FE.025

Joseph Popack, United Burlington Retail Portfolio Inc. and United Northeastern Retail Portfolio Inc. (applicants/appellants) v. Moshe Lipszyc and Sara Lipszyc (respondents/respondents)

(C60656; 2016 ONCA 135)

Indexed As: Popack et al. v. Lipszyc

Ontario Court of Appeal

Doherty, Pardu and Benotto, JJ.A.

February 18, 2016.

Summary:

Popack and Lipszyc agreed to submit their dispute respecting certain Ontario properties to the New York Rabbinical Court for arbitration. The parties agreed that they had a right to appear before the panel at all "scheduled hearings". The parties agreed that the Rabbinical Court could hear from the previous arbitrator (Rabbi Schwei), who was unsuccessful in resolving the dispute. Without notice to either party, the Rabbinical Court met ex parte with Rabbi Schwei. There was no record of this meeting. The Rabbinical Court subsequently rendered its decision. Popack applied under the International Commercial Arbitration Act to set aside the award under art. 34(2)(a)(iv) of the UNCITRAL Model Law on International Commercial Arbitration on the ground that the ex parte meeting without notice to the parties breached the procedure agreed to by the parties. The trial judge held that the ex parte meeting breached the agreed arbitration procedure. However, the judge exercised her discretion under art. 34(2)(a)(iv) to uphold the arbitration award notwithstanding the procedural error. Popack appealed.

The Ontario Court of Appeal dismissed the appeal.

Arbitration - Topic 7919.1

Judicial review - Jurisdiction of the courts - International Commercial Arbitration Act awards - Popack and Lipszyc agreed to submit their dispute respecting certain Ontario properties to the New York Rabbinical Court for arbitration - The parties agreed that they had a right to appear before the panel at all "scheduled hearings" - The parties agreed that the Rabbinical Court could hear from the previous arbitrator (Rabbi Schwei), who was unsuccessful in resolving the dispute - Without notice to either party, the Rabbinical Court met ex parte with Rabbi Schwei - There was no record of this meeting - The Rabbinical Court subsequently rendered its decision - Popack applied under the International Commercial Arbitration Act to set aside the award under art. 34(2)(a)(iv) of the UNCITRAL Model Law on International Commercial Arbitration on the ground that the ex parte meeting without notice to the parties breached the procedure agreed to by the parties - The trial judge held that the ex parte meeting breached the agreed arbitration procedure - However, the judge exercised her discretion under art. 34(2)(a)(iv) to uphold the arbitration award notwithstanding the procedural error - The Ontario Court of Appeal dismissed Popack's appeal - The Model Law provided that a court "may" set aside an arbitration award for a procedural breach - All of the factors identified by the judge as relevant to the exercise of her discretion were properly considered in deciding whether the ex parte meeting produced "real unfairness" or "real practical injustice" - The court was satisfied that the procedural error did not affect the reliability of the result or the fairness or appearance of fairness of the arbitration process.

Arbitration - Topic 8414

Judicial review - Grounds - Misconduct - Hearing evidence in absence of parties or other arbitrators - [See Arbitration - Topic 7919.1 ].

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - [See Arbitration - Topic 7919.1 ].

Counsel:

Marlys A. Edwardh and Daniel Sheppard, for the appellants;

Colin P. Stevenson and Neil G. Wilson, for the respondents.

This appeal was heard on January 20, 2016, before Doherty, Pardu and Benotto, JJ.A., of the Ontario Court of Appeal.

On February 18, 2016, Doherty, J.A., released the following judgment for the Court of Appeal.

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31 practice notes
  • ONTARIO COURT OF APPEAL SUMMARIES (JUNE 19 – JUNE 23, 2017)
    • Canada
    • LexBlog Canada
    • June 23, 2017
    ...of Contract, Commercial Arbitration, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp, 2014 SCC 53, Popack v. Lipszyc, 2016 ONCA 135, Dunsmuir v. New Brunswick, 2008 SCC 9 Salewski v. Lalonde, 2017 ONCA 515 Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Inte......
  • Court Of Appeal Summaries (May 30, 2022 ' June 3, 2022)
    • Canada
    • Mondaq Canada
    • June 6, 2022
    ...6(15.1), Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic, Popack v. Lipszyc, 2016 ONCA 135, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Wilson v. Servier Canada Inc., 50 O.R. (3d) 219 (S.C.) SS&C Technologie......
  • COURT OF APPEAL SUMMARIES (MAY 30, 2022 – June 3, 2022)
    • Canada
    • LexBlog Canada
    • June 3, 2022
    ...6(15.1), Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic, Popack v. Lipszyc, 2016 ONCA 135, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Wilson v. Servier Canada Inc., 50 O.R. (3d) 219 (S.C.) SS&C Technologi......
  • Esfahani v Samimi,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 5, 2022
    ...they cannot later argue procedural unfairness after the substantive decision is made and they do not like the result: Popack v Lipszyc, 2016 ONCA 135 at para 39; Peterson at paras [160]       In all of these circumstances, Samimi made strategic and tactical dec......
  • Request a trial to view additional results
17 cases
  • Esfahani v Samimi,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 5, 2022
    ...they cannot later argue procedural unfairness after the substantive decision is made and they do not like the result: Popack v Lipszyc, 2016 ONCA 135 at para 39; Peterson at paras [160]       In all of these circumstances, Samimi made strategic and tactical dec......
  • Tall Ships Landing Devt. Inc. v. City of Brockville, 2019 ONSC 6597
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • November 15, 2019
    ...its acceptance”: at para. 38. [47] Deference to arbitral decisions is based on a desire for efficiency and finality: Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, at para. 6. Courts must recognize that arbitral decisions are the product of choices that the parties have made, both in ......
  • Popack v. Lipszyc,
    • Canada
    • Court of Appeal (Ontario)
    • July 12, 2018
    ...Mr. Popack appealed. By a decision dated February 18, 2016, this court dismissed Mr. Popack’s appeal: 2016 ONCA 135, 129 O.R. (3d) 321 . Mr. Popack paid all costs of the set aside proceedings ordered by the Ontario [18]       On April 11, 2016 appellant......
  • Taseko Mines Limited v. Franco-Nevada Corporation,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • April 17, 2023
    ...preference in favour of maintaining arbitral awards rendered in consensual private arbitrations”: Popack v. Lipszyc, 2016 ONCA 135, at para. 26. Also, as Gascon J. explained in Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688, “[t]he preference fo......
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10 firm's commentaries
  • ONTARIO COURT OF APPEAL SUMMARIES (JUNE 19 – JUNE 23, 2017)
    • Canada
    • LexBlog Canada
    • June 23, 2017
    ...of Contract, Commercial Arbitration, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp, 2014 SCC 53, Popack v. Lipszyc, 2016 ONCA 135, Dunsmuir v. New Brunswick, 2008 SCC 9 Salewski v. Lalonde, 2017 ONCA 515 Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Inte......
  • Court Of Appeal Summaries (May 30, 2022 ' June 3, 2022)
    • Canada
    • Mondaq Canada
    • June 6, 2022
    ...6(15.1), Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic, Popack v. Lipszyc, 2016 ONCA 135, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Wilson v. Servier Canada Inc., 50 O.R. (3d) 219 (S.C.) SS&C Technologie......
  • COURT OF APPEAL SUMMARIES (MAY 30, 2022 – June 3, 2022)
    • Canada
    • LexBlog Canada
    • June 3, 2022
    ...6(15.1), Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic, Popack v. Lipszyc, 2016 ONCA 135, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Wilson v. Servier Canada Inc., 50 O.R. (3d) 219 (S.C.) SS&C Technologi......
  • Court Of Appeal Summaries (September 12 ' 16, 2022)
    • Canada
    • Mondaq Canada
    • September 19, 2022
    ...ONSC 2929, Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, 97 O.R. (3d) 161, Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, Desputeaux v. Éditions Chouette (1987) Inc., 2003 SCC 17, Travis Coal Restructured Holdings LLC v. Essar Global Fund Ltd......
  • Request a trial to view additional results
4 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books A Practitioner's Guide to Commercial Arbitration Preliminary Sections
    • June 24, 2017
    ...137, 139, 140, 147 Pechstein/International Skating Union. See also Claudia Pechstein v Intenational Skating Union Popack v Lipszyc, 2016 ONCA 135, af’g 2015 ONSC 3460 ..................................................85, 130, 141, 143, 395, 400, 402–4 Premium Nafta Products Ltd v Fili Shipp......
  • Arbitral Awards: Appeals, Setting Aside, and Enforcement
    • Canada
    • Irwin Books A Practitioner's Guide to Commercial Arbitration The End
    • June 24, 2017
    ...permit setting aside an arbitral award if basic standards of fairness have not been met. 20 See Sattva , above note 17 at para 106. 21 2016 ONCA 135 at para 26, an appeal from the motion judge’s decision at 2015 ONSC 3460. 22 Above note 7, s 46. 23 Ibid , s 47. 24 See R & G Draper Farms (Ke......
  • Shifting the Paradigm: Moving from Litigation to Arbitration
    • Canada
    • Irwin Books A Practitioner's Guide to Commercial Arbitration The Beginning
    • June 24, 2017
    ...7, 9, and 11 [ Boxer ]. 23 2016 SCC 45. 24 2015 BCCA 297 at para 53. 85 KEnnEth J GlAsnEr, QC In a similar vein, in Popack v. Lipszyc , 2016 ONCA 135, 262 A.C.W.S. (3d) 841, Doherty J.A. linked the fact of a private consensual arbitration with the need for judicial deference to the result o......
  • Arbitration Independence and Bias: Testing the Limits
    • Canada
    • Irwin Books A Practitioner's Guide to Commercial Arbitration The Beginning
    • June 24, 2017
    ...An English translation is online: www.tas-cas.org/ileadmin/user_upload/ Pechstein___ISU_translation_ENG_inal.pdf. 3 2016 ONCA 135, af’g 2015 ONSC 3460. 4 While both domestic and international arbitration laws in Canada require arbitrators to be independent of the parties and to act impartia......

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