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

JudgeDoherty, Pardu and Benotto, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateThursday February 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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34 practice notes
  • Court Of Appeal Summaries (May 30, 2022 ' June 3, 2022)
    • Canada
    • Mondaq Canada
    • 6 Junio 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 (August 24 ' 28, 2020)
    • Canada
    • Mondaq Canada
    • 2 Septiembre 2020
    ...22, Orgaworld Canada Ltd. v. Ontario (Environment and Climate Change), 2014 ONCA 654, Guindon v. Canada, 2015 SCC 41, Popack v. Lipszyc, 2016 ONCA 135, R. v. Roach, 2009 ONCA 156, R. v. L.G., 2007 ONCA 654, R. v. Rabba (1991), 64 C.C.C. (3d) 445 (Ont. The content of this article is intended......
  • Esfahani v Samimi, 2022 ABKB 795
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 5 Diciembre 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......
  • Table of Cases
    • Canada
    • Irwin Books A Practitioner's Guide to Commercial Arbitration Preliminary Sections
    • 24 Junio 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......
  • Get Started for Free
18 cases
  • Esfahani v Samimi, 2022 ABKB 795
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 5 Diciembre 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)
    • 15 Noviembre 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, 2018 ONCA 635
    • Canada
    • Court of Appeal (Ontario)
    • 12 Julio 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......
  • ENMAX Energy Corporation v TransAlta Generation Partnership, 2022 ABCA 206
    • Canada
    • Court of Appeal (Alberta)
    • 9 Junio 2022
    ...the arbitration award aside engages the discretion of the chambers judge and is entitled to deference on appeal: see Popack v Lipszyc, 2016 ONCA 135 at para 25. Standard of review on an application to set aside an arbitration award under section 45 [23]      &#......
  • Get Started for Free
8 firm's commentaries
  • Court Of Appeal Summaries (May 30, 2022 ' June 3, 2022)
    • Canada
    • Mondaq Canada
    • 6 Junio 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 (August 24 ' 28, 2020)
    • Canada
    • Mondaq Canada
    • 2 Septiembre 2020
    ...22, Orgaworld Canada Ltd. v. Ontario (Environment and Climate Change), 2014 ONCA 654, Guindon v. Canada, 2015 SCC 41, Popack v. Lipszyc, 2016 ONCA 135, R. v. Roach, 2009 ONCA 156, R. v. L.G., 2007 ONCA 654, R. v. Rabba (1991), 64 C.C.C. (3d) 445 (Ont. The content of this article is intended......
  • Court Of Appeal Summaries (September 12 ' 16, 2022)
    • Canada
    • Mondaq Canada
    • 19 Septiembre 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......
  • Court Of Appeal Summaries (August 3 ' 7, 2020)
    • Canada
    • Mondaq Canada
    • 11 Agosto 2020
    ...s. 43, Rules of Civil Procedure, Rule 49, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Popack v. Lipszyc, 2016 ONCA 135, Toronto Area Transit Operating Authority v. Dell Holdings Ltd, [1997] 1 S.C.R. 32, Re Rotenberg et al. and Borough of York (No. 2) , 1976 Can......
  • Get Started for Free
4 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books A Practitioner's Guide to Commercial Arbitration Preliminary Sections
    • 24 Junio 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
    • 24 Junio 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
    • 24 Junio 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
    • 24 Junio 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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