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

• Judge: Doherty, Pardu and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Thursday February 18, 2016
• Jurisdiction: Ontario
• 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.