



COURT OF APPEAL FOR ONTARIO

CITATION:  Popack v. Lipszyc, 2016 ONCA 135

DATE: 20160218

DOCKET: C60656

Doherty, Pardu and Benotto JJ.A.

BETWEEN

Joseph Popack, United Burlington Retail Portfolio
    Inc. and United Northeastern Retail Portfolio Inc.

Applicants (Appellants)

and

Moshe Lipszyc and Sara Lipszyc

Respondents (Respondents)

Marlys A. Edwardh and Daniel Sheppard, for the
    appellants

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

Heard:  January 20, 2016

On appeal from the order of Justice Matheson of the Superior
    Court of Justice, dated June 1, 2015, with reasons reported at 2015 ONSC 3460.

Doherty J.A.:


I



overview

[1]

The appellant, Joseph Popack, and the respondent, Moshe Lipszyc, agreed
    to submit their dispute concerning certain properties in Ontario to arbitration
    by a New York Rabbinical Court (the panel).  Under the arbitration agreement,
    the panel was free to choose the appropriate procedures by which to conduct the
    arbitration, no record was to be kept of the evidence or the submissions, and
    no reasons for decision were required from the panel.  The arbitration agreement
    did, however, stipulate that the parties had a right to appear before the panel
    at all scheduled hearings of the panel.

[2]

During the hearing, Mr. Lipszycs representative suggested that the
    panel should hear from the arbitrator in a previous attempted arbitration, Rabbi
    Schwei.  Mr. Popacks representative advised the panel that Mr. Popack did not
    object to the panel hearing from Rabbi Schwei.  It would appear that nothing
    more was said by the parties or the panel about the possibility of Rabbi Schwei
    giving evidence.

[3]

Without notice to either Mr. Lipszyc or Mr. Popack, the panel met
ex
    parte
with Rabbi Schwei on July 8, 2013.  There is no record of this
    meeting.

[4]

The panel issued its award in August 2013.

[5]

Mr. Popack brought an application pursuant to the
International
    Commercial Arbitration Act
, R.S.O. 1990, c. I.9 (the 
ICAA
), to
    set aside the award on the ground that the panel, by conducting the
ex
    parte
meeting with Rabbi Schwei without notice to the appellant, had
    breached the procedure agreed upon by the parties.  Mr. Popack argued that the
    failure to follow the procedure agreed upon by the parties necessitated the
    setting aside of the award under Article 34(2)(a)(iv) of the UNCITRAL Model Law
    on International Commercial Arbitration (a schedule to the
ICAA
).

[6]

The application judge found that the
ex parte
meeting with
    Rabbi Schwei without notice to the parties breached the procedure the parties
    had agreed upon.  She also accepted that the breach provided a ground upon
    which she could set aside the award under Article 34(2)(a)(iv) of the Model
    Law.  The application judge went on, however, to hold that under Article
    34(2)(a)(iv) she had a discretion as to whether to set the award aside.  After
    referring to several factors relevant to the exercise of that discretion, the
    application judge concluded she would not set aside the award despite the
    procedural error by the panel.  She dismissed Mr. Popacks application.  He
    appeals.

[7]

On the appeal, the parties accept that Article 34(2)(a)(iv) applies and
    that the application judge correctly determined that the
ex parte
meeting with Rabbi Schwei without notice to the parties breached the procedure agreed
    upon by the parties.  The appeal focuses exclusively on the application judges
    decision not to set aside the award despite the failure to comply with the
    agreed upon procedure.

[8]

Mr. Popack acknowledges that Article 34(2)(a)(iv) gave the trial judge a
    discretion as to whether the award should be set aside.  He contends, however,
    that the application judge drew the boundaries of that discretion far too
    widely and, in any event, considered immaterial factors in arriving at her decision. 
    Mr. Popack argues that the application judge having determined that the
    procedural breach was significant (para. 73), and that there was a
    possibility of prejudice to Mr. Popack (para. 69), should have set aside the
    award.

[9]

Mr. Lipszyc contends that all of the factors identified by the
    application judge were properly considered by her in the exercise of her
    discretion.  He further submits that the application judges exercise of her
    discretion, particularly in the context of a review of a private arbitral
    award, attracts the highest degree of deference in this court.  Mr. Lipszyc
    argues that, viewed through the deference lens, the application judges order
    should stand.


II



the two letters

(a)

Mr. Popacks letter to the panel

[10]

Before
    examining the application judges reasons, it is necessary to describe two
    documents that were part of the record before her.  The first is a letter dated
    July 15, 2013 from Mr. Popacks representative to the arbitration panel.  This
    letter was sent to the panel about a week after its meeting with Rabbi Schwei
    and while the arbitration was still ongoing.  The letter was sent to the panel without
    any notice to Mr. Lipszyc or his representative.  Mr. Lipszyc became aware of both
    the
ex parte
meeting with Rabbi Schwei and the
ex parte
communication with the panel by Mr. Popacks representative sometime after this
    application was commenced.

[11]

In
    the July 15, 2013 letter, Mr. Popacks representative began by setting out his position
    as to the terms of the award that the panel should make.  He then turned to the
    meeting with Rabbi Schwei.  That part of the letter began: we heard a rumor
    that the Rabbinical Court went to Rabbi Schwei to discuss a
certain release
, etc. (emphasis in original).

[12]

Mr.
    Popacks representative went on to set out Mr. Popacks version of the events
    relevant to the release and Rabbi Schweis involvement in those events.  This
    part of the letter concluded:

We do not know what Rabbi Schwei recalls or does not recall;
    however, his testimony against a contract written and signed between the
    parties is worthless.

In light of the above, it does not diminish Popacks right,
    because had Rabbi Schwei testified in his presence, he would have shown him the
    signed agreement that was written at the time; perhaps Rabbi Schweis
    recollection would have been different than that which he said, (especially
    since Rabbi Schwei already told the Rabbinical Court many years ago at the
    beginning of the Rabbinical Court arbitration, saying that he does not recall
    anything).

[13]

Having
    set out Mr. Popacks position in respect of Rabbi Schweis involvement in this
ex
    parte
communication with the panel, Mr. Popacks representative made the
    following request:

It is therefore our request that
if the
    Rabbinical Court considers Rabbi Schweis testimony (which was without our
    knowledge) we request a Rabbinical Court hearing about this, in the defendants
    presence
,
and the Rabbinical Court should consider this as well. 
    [Emphasis added.]

[14]

The
    letter concluded with an indication that Mr. Popacks representative had
    further arguments to make about the release.  He added please let me know
    about this, because we are not prepared to lose many millions based on
ex
    parte
testimony; therefore, we want a Rabbinical Court hearing about this.

[15]

Counsel
    for Mr. Popack reads the July 15, 2013 letter as an unqualified objection by
    Mr. Popack to the
ex parte
proceeding and a declaration that he would
    have exercised his right to be present and question Rabbi Schwei had he been
    aware of the hearing.  Counsel for Mr. Lipszyc reads this letter as a waiver of
    any complaint about the
ex parte
proceeding and a demand for a hearing
    before the panel only if the panel was of the view that it considered Rabbi
    Schweis testimony relevant to the award it would make.

[16]

The
    application judge referred to the July 15, 2013 letter in the course of listing
    the factors relevant to the exercise of her discretion (para. 71).  She treated
    the letter as a qualified request for a hearing if the panel regarded Rabbi
    Schweis evidence as relevant and as an improper
ex parte
communication made on Mr. Popacks behalf to the panel without Mr. Lipszycs
    knowledge.

(b)

The panels letter

[17]

The
    second document is a letter from the panel prepared in response to inquiries
    made by counsel for Mr. Lipszyc after this application was commenced.  In their
    letter, the panel indicated that Mr. Lipszycs representative had requested
    that Rabbi Schwei give evidence and the panel had granted the request.  The
    letter indicated that neither party objected to our decision, or requested the
    opportunity to be present at the meeting.  The panel further indicated in the
    letter that had either party wanted to attend the meeting with Rabbi Schwei,
    they would have been allowed to do so.

[18]

The
    panel stated in the letter that the information provided by Rabbi Schwei had no
    impact on their award.  The panel referred to Mr. Popacks request in his letter
    that the panel conduct a hearing if it viewed Rabbi Schweis evidence as
    germane.  The panel indicated that it did not hold a hearing as it was
    satisfied that Rabbi Schweis evidence didnt make any change in our ruling.

[19]

Counsel
    for Mr. Popack argued that the letter from the panel should be given no weight by
    the application judge for three reasons.  First, as acknowledged by counsel for
    Mr. Lipszyc, the letter did not accurately describe the events that occurred
    when Mr. Lipszyc raised the possibility of Rabbi Schwei testifying before the
    panel.  Second, the letter was a self-serving attempt by the panel to justify its
    failure to follow the procedure the parties had agreed upon.  Third, the
    contents of the letter breached the panels obligation to maintain the secrecy
    of its deliberations.

[20]

The
    application judge appreciated Mr. Popacks arguments that the letter should be
    given no weight.  She ultimately indicated she would take the letter into
    account in exercising her discretion (para. 68).  The application judge,
    however, did not accept the contents of the letter as an accurate account of
    the dialogue between the parties and the panel when the possibility of Rabbi
    Schwei testifying arose.  She also did not accept as determinative the panels
    indication that Rabbi Schweis testimony had no impact on the award.


III



the application judges reasons

[21]

The
    parties agree that the
ICAA
applies to the award of the panel.  That
    Act brings the Model Law into Ontario domestic law.  Pursuant to Article
    34(2)(a)(iv), a court may set aside an award if the arbitral procedure was
    not in accordance with the agreement of the parties.

[22]

Under
    the terms of the arbitration agreement, the parties were entitled to be
    informed by the arbitrators of the scheduled hearing(s).  Neither Mr. Popack,
    nor Mr. Lipszyc was informed of the panels meeting with Rabbi Schwei.  This
ex
    parte
without notice meeting meant that the procedure followed by the
    panel was not in accordance with the agreement of the parties and triggered
    the power under Article 34(2)(a)(iv) to set aside the award.

[23]

In
    concluding that the award should not be set aside, the application judge considered
    several factors:

i.

The panel did not meet with Rabbi Schwei on its own initiative, but only
    after Mr. Lipszyc had requested that Rabbi Schweis evidence be heard and Mr.
    Popack agreed that the panel could hear Rabbi Schweis evidence (para. 66);

ii.

While the absence of a transcript of the proceedings before the panel
    made it difficult to know exactly what had happened, based on the material
    filed on the application, the panel could well have been under an honest
    misapprehension that the parties were satisfied that it could take Rabbi
    Schweis evidence in their absence (para. 67);

iii.

Rabbi
    Schwei was not aligned with either party and had served as a neutral arbitrator
    in the earlier attempt at arbitration (para. 69);

iv.

Mr.
    Popack could not show actual prejudice, however, there was the possibility of
    prejudice for both sides flowing from the
ex parte
meeting with Rabbi
    Schwei (para. 69);

v.

Setting aside the award would mean added costs as the expenses
    associated with the eight-week arbitration would be lost and a new arbitration
    required.  The application judge referred to this as not especially
    significant (para. 70);

vi.

Mr.
    Popacks father had given evidence before the panel.  He had since died.  If
    the award were to be set aside, a new hearing would be required and Mr. Popack
    Sr.s evidence would not be available to the parties (para. 70);

vii.

When
    Mr. Popack became aware of the meeting with Rabbi Schwei, he made only a
    qualified objection to the procedure followed and requested a hearing only if
    the panel regarded Rabbi Schweis evidence as relevant to its decision (para.
    71); and

viii.

In communicating
ex parte
with the panel and without notice to Mr. Lipszyc, Mr. Popack
    had himself contravened procedural rules and raised fairness concerns (para.
    71).

[24]

The
    first two factors pertain to the seriousness of the procedural breach in the
    specific circumstances.  Factors three and four relate to the potential impact
    of the breach on the award made.  Factors five and six address the potential
    prejudice to the ultimate effective arbitration of the dispute should the award
    be set aside.  Factors seven and eight go to the conduct before the panel of
    the complaining party (Mr. Popack) after he became aware of the procedural
    error.


IV



should this court set aside the award?

[25]

The order under appeal is discretionary.  Virtually all discretionary
    orders involve the balancing of competing interests.  In most cases, the
    existence of a discretion implies that different judges can reasonably arrive
    at different results.  Consequently, appellate courts will defer to the
    exercise of discretion at first instance absent a clearly identifiable error in
    the application of the law, a material misapprehension of the relevant
    evidence, or a result that is clearly wrong in the sense that it is not
    defensible on an application of the relevant law to the facts:  see
Penner
    v. Regional Municipality of Niagara (Regional Police Services Board)
, 2013
    SCC 19, [2013] 2 S.C.R. 125, at para. 27.

[26]

In
    addition to the generally applicable principles that urge deference in the
    review of all discretionary decisions, the nature of the specific order under
    appeal can also enhance the deference rationale.  The application judge
    exercised her discretion in the context of a review of an award rendered in a
    private arbitration before a panel chosen by the parties to determine the
    dispute between them. The parties selection of their forum implies both a
    preference for the outcome arrived at in that forum and a limited role for
    judicial oversight of the award made in the arbitral forum:  see
Quintette
    Coal Ltd. v. Nippon Steel Corp.
(1990)
,
    [1991] 1 W.W.R. 219, at p. 229 (B.C.C.A.), leave to appeal refused, [1990]
    S.C.C.A. No. 431;
Rhé
aume v. Socié
té
dinvestissements
    lExcellence inc.
, 2010 QCCA 2269, at paras. 52-62, leave to appeal
    refused, [2011] S.C.C.A. No. 57.  The application judges decision to not set
    aside the award is consistent with the well-established preference in favour of
    maintaining arbitral awards rendered in consensual private arbitrations.

[27]

Counsel
    for the appellant accepts that deference is a central feature of appellate
    review of discretionary decisions.  He submits, however, that deference must
    end when the exercise of discretion is tainted by the application of an
    erroneous legal principle.  Counsel argues that the application judge erred in
    principle in failing to conform the exercise of her discretion under Article
    34(2) of the Model Law to the manner in which that discretion has been
    exercised by courts in other jurisdictions that also apply the Model Law.

[28]

Counsel
    submits that conformity with the case law from other jurisdictions rises to the
    level of a legal principle because the
ICAA
, and specifically the
    adoption of the Model Law, is a clear legislative signal to Ontario courts that
    they must recognize and enforce awards made in international arbitrations in a
    manner that is consistent with the way in which courts in other jurisdictions
    that apply the Model Law recognize and enforce awards:  see
Automatic
    Systems Inc. v. Bracknell Corp.
(1994), 18 O.R. (3d) 257, at p. 264 (C.A.). 
    Counsel contends that the discretion captured in in Article 34(2) is an
    important feature of the enforcement and recognition scheme established under
    the Model Law.  As such, that discretion must be interpreted consistently among
    various jurisdictions that apply the Model Law if the desired consistency and
    predictability is to be achieved.  Counsel submits that the application judge,
    in declining to set aside the award despite the significant procedural error
    and the potential prejudice to Mr. Popack, failed to adhere to the broadly
    accepted approaches to Article 34(2) followed in other jurisdictions.

[29]

Counsel
    for both parties have helpfully put before the court several cases from many
    jurisdictions that have considered the discretion in Article 34(2).  Counsel
    for Mr. Popack submits that while the cases suggest three different approaches
    to the exercise of the discretion provided in Article 34(2), none would
    countenance the exercise of the discretion in favour of upholding the award in
    the circumstances of this case.

[30]

I
    do not find any bright line rule in the cases that address the nature of the
    discretion in Article 34(2).  Article 34(2) provides several grounds upon which
    awards may be set aside.  It is clear from the case law that the scope of the discretion
    under Article 34(2) is significantly affected by the ground upon which the
    award could be set aside.  For example, Article 34(2)(a)(i) provides that the
    award may be set aside if there is no valid arbitration agreement between the
    parties.  It seems self-evident that if a party establishes that there was no
    valid arbitration agreement, a judge would have considerably less discretion to
    uphold the award despite the absence of a valid arbitration agreement, than a
    judge would have if the error lay in the arbitration panels failure to comply
    with a specific procedural provision in the course of an otherwise proper arbitration: 
    see
Carr v. Gallaway Cook Allan
, [2014] NZSC 75, at paras. 76-80, revg
    on other grounds [2013] NZCA 11;
Dallah Real Estate and Tourism Holding
    Company v. the Ministry of Religious Affairs, Government of Pakistan
,
    [2010] UKSC 46, at paras. 67-69.  In considering whether the application
    judges exercise of her discretion is out of step with decisions from other
    jurisdictions, it is important to focus on those cases in which courts have
    been asked to set aside arbitral awards on grounds involving procedural errors
    in the arbitration process.

[31]

The
    Canadian cases reveal an approach that looks both to the extent that the breach
    undermines the fairness or the appearance of the fairness of the arbitration
    and the effect of the breach on the award itself:  see
Rhéaume
, at
    paras. 50-61;
The United Mexican States v. Metalclad Corporation
, 2001
    BCSC 664, 14 B.L.R. (3d) 285, at paras. 127-29.  In
Rhéaume
, at para.
    61, after reviewing the Canadian case law, the court observed:

[I]t would be wholly inconsistent with the intention of the legislature
    and the current jurisprudential trend to treat every breach of the applicable
    procedure, however minor and however inconsequential, as requiring a court to
    refuse to homologate an award or to annul it if so requested.  A court called
    upon to adjudicate such a proceeding must balance the nature of the breach in
    the context of the arbitral process that was engaged, determine whether the
    breach is of such a nature to undermine the integrity of the process, and
    assess the extent to which the breach had any bearing on the award itself.

[32]

More
    recent decisions in other jurisdictions reflect the same kind of balancing as
    described in
Rhéaume
.
Kyburn Investments Limited v. Beca
    Corporate Holdings Limited
, [2015] NZCA 290 is instructive.  In
Kyburn
,
    the applicant moved to set aside an award on the basis that the arbitration
    panel had improperly met with a witness from one side in the absence of the
    other side while conducting a site inspection.  Not surprisingly, the application
    judge held that the panels conduct had breached the rules of natural justice
    and gave rise to an award that conflicted with the public policy of New Zealand. 
    Conflict with public policy is a ground for setting aside an award under
    Article 34(2).  The application judge, however, exercised his discretion against
    setting aside the award.  The Court of Appeal upheld the exercise of that
    discretion.

[33]

The
    Court of Appeal described the discretion in Article 34(2) in broad terms, para.
    28:

[W]hile the discretion in [Article] 34 is of a wide and
    apparently unfettered nature, it must be exercised in accordance with the
    purposes and policy of the Act which emphasize the finality of arbitral awards
    and reduce the scope for curial intervention in accordance with the intentions
    of the parties to arbitration.

[34]

The
    court explained, at para. 47, that the exercise of the discretion under Article
    34(2) required an evaluation of the nature of the breach and its impact on the
    proceedings:

No single factor is decisive or necessary for an award to be
    set aside.  Sometimes, the breach will be sufficiently serious as to speak for
    itself.  In other cases, the Court will need to consider the materiality of the
    breach and evaluate whether it was likely to have affected the outcome.  Other
    factors may be relevant to the exercise of the discretion, such as the likely
    costs of holding a rehearing.

[35]

The
    Federal Court of Australia, in
TCL Air Conditioner (Zhongshan) Co. Ltd. v.
    Castel Electronics Pty. Ltd.
, [2014] FCAFC 83, also takes an approach that
    balances a broad array of factors in deciding whether to set aside an
    arbitration award on account of procedural errors at the arbitration.  The
    court, at para. 111, identified the purpose of the discretion in Article 34(2) as
    the prevention of real unfairness and real practical injustice flowing from the
    failure to conduct the proceedings in accordance with the proper procedure. 
    The court went on, at para. 154:

[T]he notion of prejudice or unfairness does not involve re-running
    the arbitration and quantifying the causal effect of the breach of some rule. 
    The task of the Court in assessing prejudice or unfairness or practical
    injustice is not to require proof of a different result. If a party has been denied
    a hearing on an issue, for instance, it is relevant to enquire whether, in a
    real and not fanciful way that could reasonably have made a difference. It
    should be recalled that the proper framework of analysis for the IAA is the
    setting aside or non-recognition or enforcement of an international commercial
    arbitration.  In that context, it is essential to demonstrate real unfairness
    or real practical injustice. [Citations omitted.]

[36]

In
    my view, all of the factors identified by the application judge as relevant to
    the exercise of her discretion (listed above, at para. 23) were properly
    considered in deciding whether the improper
ex parte
meeting with
    Rabbi Schwei produced real unfairness or real practical injustice.  The
    relevance of the seriousness of the breach (factors one and two) and the
    potential impact of that breach on the result (factors three and four) to the
    fairness of the arbitral proceedings are obvious.  The potential prejudice flowing
    from the need to redo the arbitration if the order is set aside can also be
    relevant in assessing real practical injustice (factors five and six).  I
    think Mr. Popacks conduct after learning of the procedural breach (factors
    seven and eight) is also significant in this case.


[37]

When
    Mr. Popack learned of the possibility that the panel had improperly interviewed
    Rabbi Schwei in the absence of the parties, he chose not to advise Mr. Lipszyc
    of any possible concern and he chose not to make any formal complaint about the
    procedure followed by the panel.  Instead, Mr. Popack chose to communicate
ex
    parte
with the panel. In that communication he put forward his position
    with respect to Rabbi Schweis involvement and a forceful argument that
    anything Rabbi Schwei might say was worthless.

[38]

Mr.
    Popack did not request a hearing at which he could raise his concerns about the
ex parte
meeting with Rabbi Schwei and share his view of Rabbi
    Schweis evidence with the other side.  Instead, he asked for a hearing only if
    the panel did not agree with his assessment that Rabbi Schweis evidence had no
    value.

[39]

Mr.
    Popack sought to gain an advantage in the arbitration proceedings when he
    learned of the
ex parte
meeting with Rabbi Schwei.  He was content to attempt
    to exploit that advantage by putting his position to the panel without any
    notice to Mr. Lipszyc.  His conduct strongly suggests a tactical decision whereby
    Mr. Popack was content to allow the panel to finish its adjudication and make
    its award despite the improper
ex parte
meeting with Rabbi Schwei.  Mr.
    Popack positioned himself so that he could decide to raise the issue formally
    and on notice to Mr. Lipszyc only if he was not satisfied with the award given
    by the panel.  To reward that tactic by setting aside the award would
    eviscerate the finality principle that drives judicial review of arbitral
    awards and would cause a real practical injustice.  Mr. Popacks conduct after
    he learned of the
ex parte
meeting speaks loudly against setting aside
    this award.

[40]

Mr.
    Popacks
ex parte
communication with the panel is also relevant to the
    consideration of the panels letter explaining its conduct (above, at paras.
    17-20).  Mr. Popack demanded a hearing in respect of Rabbi Schweis evidence
    only if it was going to affect the panels decision.  Having taken that position
    in an
ex parte
communication with the panel, only to subsequently
    challenge the panels award, it does not lay in Mr. Popacks mouth to argue
    that the panel could not provide insight as to the significance of Rabbi
    Schweis evidence.  The panels letter is in effect, at least in part, a
    response to the request made in the
ex parte
communication made on
    behalf of Mr. Popack.  The panels letter explains that it did not convene a
    hearing over Rabbi Schweis evidence because that evidence had no impact on its
    ruling.  Mr. Popack had made it clear that he did not want a hearing if the
    evidence had no impact on the panel. In these circumstances, I think the
    panels explanation for not convening a hearing after it received Mr. Popacks
ex
    parte
communication was relevant to the application judges exercise of
    her discretion.

[41]

One
    other factor referred to by the application judge in exercising her discretion
    deserves some comment.  The application judge considered the death of a
    material witness and thus his unavailability at any subsequent hearing as a
    significant consideration.  She did not do so on the basis that this witness
    helped one side or the other, but rather on the basis that the absence of this
    witness would inevitably detract from the effective and fair resolution of the
    dispute.

[42]

Concerns
    about the effect of procedural errors on the integrity of the process (
Rhéaume
)
    or the practical injustice of the proceeding (
TCL Air Conditioner
)
    will normally focus on the arbitration proceeding giving rise to the award.  In
    the context of private arbitrations, I think the ability of the parties to
    effectively and fairly redo the arbitration process should the award be set
    aside can also be a factor in the exercise of the Article 34(2) discretion, at
    least in cases where neither party bears any responsibility for the procedural
    error said to justify the setting aside of the initial order.  Neither Mr.
    Popack nor Mr. Lipszyc can be blamed in any way for the panels decision to
    take Rabbi Schweis evidence
ex parte
and without notice.

[43]

Counsel
    for the appellant also argued that the application judge should have considered
    Article 34(2)(a)(ii) and Article 34(2)(b)(ii).  The former addresses violations
    of the right of a party to be present at the arbitration process.  The latter
    is concerned with public policy violations.

[44]

Counsel
    submits that although a single procedural error underlies each of the three
    complaints, the appropriate exercise of discretion under Article 34(2) may be
    different depending upon the characterization of the procedural error.

[45]

I
    agree with the application judge that each of the different alleged violations
    comes down to the same conduct and the same balancing exercise.   I do not see
    how the outcome of that balancing exercise can depend on the specific label
    placed on the procedural error giving rise to the Article 34(2) complaint.  For
    example, characterizing the procedural failure as a breach of Ontario public
    policy if it could be so characterized, would not, in my view, automatically
    make the breach more serious or tip the scale in favour of setting aside the
    award.  Whatever label is placed on the procedural error, and whichever
    subsection of Article 34(2) is invoked, the essential question remains the same
     what did the procedural error do to the reliability of the result, or to the fairness,
    or the appearance of the fairness of the process?

[46]

The
    application judge made no error in choosing not to give separate consideration
    to each of the provisions of Article 34 advanced on behalf of Mr. Popack.


V



conclusion

[47]

I would dismiss the appeal.

[48]

I
    would award costs to the respondents in the amount of $25,000, inclusive of
    disbursements and relevant taxes.

Released: DD  FEB 18 2016

Doherty J.A.

I agree G. Pardu
    J.A.

I agree M.L. Benotto
    J.A.


