



COURT OF APPEAL
    FOR ONTARIO

CITATION: Eggiman v. Martin, 2019 ONCA 974

DATE: 20191212

DOCKET: C66745

Simmons, Pardu and Nordheimer JJ.A.

BETWEEN

Christina Eggiman and
    Christina T.H. Corp.

Plaintiffs
(Respondents)

and

Shawn Daniel Martin,
    Trisha Dollie Martin, TS Martin Inc.,
and the TDL Group Corp./Groupe TDL Corporation

Defendants
(
Appellants
)

Andy Seretis, for the appellants

Todd D. Storms and Zach Flemming-Giannotti, for the
    respondents

Heard: November 8, 2019

On appeal from the order of Justice Wolfram Tausendfreund
    of the Superior Court of Justice, dated February 27, 2019, with reasons
    reported at 2019 ONSC 1388.

REASONS FOR DECISION

A.

OVERVIEW

[1]

The motion judge dismissed the appellants motion seeking a stay of the
    underlying action. The appellants sought the stay pursuant to an arbitration
    agreement they had entered into with the respondents. For the following reasons,
    we conclude that the appeal from the motion judges decision is barred by
    statute. The appeal is therefore dismissed.

B.

BACKGROUND

[2]

The appellants and respondents are parties to an arbitration provision
    that is part of the contractual arrangements by which the appellants operate
    two Tim Hortons franchises on behalf of the respondents. The Operating Agreements
    each contain broadly-worded arbitration provisions in the following terms:

All matters in difference between the parties in relation to
    this Agreement shall be referred to the arbitration of a single arbitrator
    appointed by TDL, which shall either be an employee of TDL or a third party
    arbitrator, at TDL's discretion. The award and determination of the arbitrator
    shall be binding upon the parties and their respective heirs, executors,
    administrators and assigns.

[3]

The respondents purported to terminate the Operating Agreements after
    becoming aware of certain conduct of the appellant, Shawn Martin. The
    respondents then commenced the within action against the appellants and the
    other defendant in which they seek damages for breach of contract, intentional
    interference with economic relations, and conversion.

[4]

In response, the appellants brought their motion to stay the action in
    favour of the arbitration process. The motion judge dismissed their motion. In
    doing so, the motion judge recognized that the action could only be stayed
    against the appellants and not the other defendant, who was not subject to the
    arbitration clause. The motion judge held that a partial stay was not a
    reasonable result since it would lead to a multiplicity of proceedings. The
    motion judge also noted that the other defendant,
TDL, actually had the authority, under the arbitration clause, to appoint
    the arbitrator. The motion judge held that this unique aspect of the case also
    led to the potential for unfairness in the arbitration process.

[5]

The appellants appeal from the motion judges decision. They contend
    that s. 7(1) of the
Arbitration Act
, 1991
, S.O. 1991, c. 17,
    requires that the action be stayed and that none of the exceptions to that
    mandatory stay, set out in s. 7(2), apply in this case. The appellants also say
    that the motion judge erred in finding that s. 7(5) of the

Arbitration
    Act
, 1991
, permitted him to refuse to grant a stay on the grounds that
    it would lead to a multiplicity of proceedings.

C.

ANALYSIS

[6]

At the conclusion of the hearing, the court directed the parties to file
    written submissions on whether this court had jurisdiction to hear an appeal
    from the motion judges order in light of s. 7(6) of the
Arbitration Act
,
    1991
. This issue was raised by the respondents, for the first time, at the
    hearing. Section 7(6) reads simply: There is no appeal from the courts
    decision.

[7]

We have now received and reviewed the parties submissions on this
    point.

[8]

There is no appeal to this court from the order of the motion judge.
    Section 7(6) is very clear on this point. If it is determined that the
    arbitration provision applies to the issue that is raised in the proceeding, and
    thus s. 7 is invoked, then s. 7(6) precludes any appeal from the decision
    rendered respecting the motion to stay, whether that order grants or refuses
    the stay:
Brown v. Murphy
(2002), 59 O.R. (3d) 404 (C.A.), at para. 8.

[9]

This same point is made in
Radewych v. Brookfield Homes (Ontario)
    Ltd.
,
2007 ONCA 721, where the court said, at para. 4: [The motion
    judges] decision  falls squarely within s. 7(5) of the
Arbitration Act
and as such, s. 7(6) of that Act applies and renders his decision unappealable.

[10]

As a consequence, this appeal must be dismissed. In reaching that conclusion,
    we are not to be seen as agreeing with the analysis engaged in by the motion
    judge. Rather, we simply do not reach his analysis as any review of it is
    precluded by s. 7(6).

[11]

The respondents are entitled to their costs of the appeal fixed in the
    agreed amount of $6,500 inclusive of disbursements and HST.

Janet Simmons J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.


