



COURT OF APPEAL FOR ONTARIO

CITATION: DAC Group (Holdings) Limited v. Fuego Digital Media
    Inc., 2018 ONCA 43

DATE: 20180122

DOCKET: M48702 & M48703 (M48686)

Benotto J.A. (In Chambers)

BETWEEN

DAC Group (Holdings) Limited

Applicant/Responding Party

and

Fuego Digital Media Inc.

Respondent/Moving Party

Kevin Higgins,
    self-represented, appearing for the Moving Party

Lawrence Theall and Melissa
    Wright, for the Responding Party

Heard: January 18, 2018

REASONS FOR DECISION

[1]

Is an order granting a conditional stay of enforcement of an arbitration
    award final or interlocutory? The resolution of this issue establishes
    jurisdiction.

[2]

For the reasons that follow, I conclude that the order is interlocutory
    and jurisdiction lies with the Divisional Court.

Background

[3]

The parties to this motion attended arbitration concerning the ownership
    of certain software. The arbitrator declared that the respondent (DAC) owned
    the software, provided for injunctive relief, and ordered costs of over $1.5
    million.

[4]

Fuego Digital Media Inc.  (Fuego) commenced an application under s. 46
    of the
Arbitration Act, 1991
S.O. 1991, c.17 to set aside parts of the
    award. The application is scheduled to be heard in April, 2018.

[5]

The application judge stayed the award pending final determination
    saying this:

The Court exercises its discretion under section 50(5) and
    50(8) of the
Arbitration Act
to stay enforcement of the final award
    and cost pending the disposition of Fuegos application on the condition that
    Fuego pay DAC the sum of $25,000 on the 15
th
day of each and every
    month commencing on January 15, 2018 until such time as the application to be
    heard in April 2018 is dealt with.

Discussion

[6]

I have concluded that the order is interlocutory.

[7]

First, the merits of Fuegos application remain to be determined. The
    longstanding dicta in
Hendrickson
v.
Kallio
,

[1932] O.R. 675 applies here. There, Middleton J. A. said, at p. 678:

The interlocutory order from which there is no appeal is an
    order which does not determine the real matter in dispute between the parties 
    the very subject matter of the litigation, but only some matter collateral. It
    may be final in the sense that it determines the very question raised by the application,
    but it is interlocutory if the merits of the case remain to be determined.

[8]

Second, the award is under s. 50(5) of the
Arbitration Act
which confirms that a final order has yet to be made. That section provides:

Pending proceeding

(5) If the period for commencing an appeal,
    application to set the award aside or application for a declaration of
    invalidity has not yet elapsed, or if such a proceeding is pending, the court
    may,

(a) enforce the award; or

(b) order, on such conditions as are just, that
    enforcement of the award is stayed until the period has elapsed without such a
    proceeding being commenced, or until the pending proceeding is finally disposed
    of.

[9]

This matter is pending and remains before the court for a final
    determination under s. 50(3) of the
Arbitration Act
.

Disposition

[10]

This
    matter is within the jurisdiction of the Divisional Court. No Notice of Appeal
    has been filed in this court so there is no file to be transferred. The
    companion motions brought on behalf of Fuego to have Mr. Higgins represent the
    company and for a stay are dismissed since this court does not have
    jurisdiction over the appeal. Likewise, I am not prepared to make an order
    regarding time limits with respect to matters in the Divisional Court.

[11]

Fuego
    shall pay DAC its costs of the motion fixed in the amount of $1500 inclusive of
    disbursements and HST.

M.L. Benotto J.A.


