



COURT OF APPEAL FOR ONTARIO

CITATION: Toronto Standard Condominium
    Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020
    ONCA 612

DATE: 20201001

DOCKET: M51387 (C66825)

Strathy C.J.O., MacPherson,
    Pardu, Huscroft and Jamal JJ.A.

BETWEEN

Toronto Standard Condominium Corporation
    No. 1628

Applicant

(Respondent/Moving
    Party)

and

Toronto Standard Condominium Corporation No. 1636,

Soho Grand Condominiums Inc. and Soinco Limited

Respondents

(Appellants/Responding Parties)

Carol A. Dirks, Ronald Davis and Rachel
    Fielding, for the moving party

Allan Sternberg, Emily Hives and Philip
    Anisman, for the responding parties

Heard: June 17, 2020 by video conference

On appeal from the order of Justice
    Lorne Sossin of the Superior Court of Justice, dated March 22, 2019, with
    reasons reported at 2019 ONSC 1827.

Jamal J.A.:

A.

overview

[1]

Toronto Standard Condominium Corporation No.
    1628 (Condo 1628) moves to quash an appeal brought by Toronto Standard
    Condominium Corporation No. 1636 (Condo 1636), Soho Grand Condominiums Inc.
    (Soho), and Soinco Ltd. (Soinco) from the order of the motion judge refusing
    to stay a court proceeding in favour of arbitration. Condo 1628 claims this court
    lacks jurisdiction because the appeal is barred by s. 7(6) of the
Arbitration Act, 1991
, S.O. 1991, c. 17
    (
Arbitration Act
).
[1]

[2]

Subject to certain exceptions under ss. 7(2) and
    7(5), s. 7(1) of the
Arbitration Act
provides that if a party to an arbitration agreement commences a court
    proceeding about a matter they agreed would be submitted to arbitration, the
    court shall, on the motion of another party to the arbitration agreement, stay
    the court proceeding. Under s. 7(5), when arbitrable and non-arbitrable matters
    are combined in a single court proceeding, if certain conditions are met, the court
    may stay the proceeding with respect to the matters dealt with in the
    arbitration agreement and allow it to continue with respect to the other
    matters. Section 7(6) decrees: There is no appeal from the courts decision.

[3]

This motion concerns the scope of s. 7(6). Condo
    1628 asks this court to overrule 20 years of its jurisprudence on when s. 7(6)
    bars an appeal.

[4]

This courts leading decision interpreting s.
    7(6),
Huras v. Primerica Financial Services Ltd.
(2000), 137 O.A.C. 79 (C.A.), held that if a motion judge decides that
    an arbitration agreement does not apply to the dispute before the court, then the
Arbitration Act
also does
    not apply, including the bar on appeals in s. 7(6).
Huras
has been followed by this court in
    seven unanimous decisions, including by two five-judge panels, and adopted as persuasive
    authority by the appeal courts of three other provinces with provisions identical
    to s. 7(6) in their arbitration statutes.

[5]

Condo 1628 invites this court to overrule the
Huras
line of cases and quash this
    appeal based on the Supreme Court of Canadas decision in
TELUS Communications Inc. v. Wellman
,
    2019 SCC 19, [2019] 2 S.C.R. 144. In
Wellman
, Moldaver J. for the majority held that s. 7(5) does not grant the
    court discretion to refuse to stay claims that are dealt with in an arbitration
    agreement: at para. 8. He ruled that s. 7(5) does not  permit the court to
    ignore a valid and binding arbitration agreement: at para. 103.
Wellman
overturned this courts
    contrary interpretation of s. 7(5) in
Griffin v.
    Dell Canada Inc.
, 2010 ONCA 29, 98 O.R. (3d) 481,
    leave to appeal refused, [2010] S.C.C.A. No. 75, which had construed s. 7(5) as
    granting a motion judge discretion to refuse to stay claims dealt with in an arbitration
    agreement.

[6]

As I elaborate below, although
Wellman
overturned
Griffin
on the interpretation of s.
    7(5), it did not disturb the
Huras
line of cases on the interpretation of s. 7(6). In my view, the
Huras
line of cases was correctly
    decided.

[7]

I also conclude that s. 7(6) does not bar an appeal
    from the motion judges order in this case. The motion judge found that the
    proceeding before the court combines matters that are dealt with in the
    arbitration agreement with other matters that are not dealt with in the
    arbitration agreement. Because the motion judge did not have the benefit of
Wellman
at the time of his decision, he
    applied this courts decision in
Griffin
, refused to stay any part of the proceeding under s. 7(5), and
    allowed the entire proceeding to continue before the court. But as
Wellman
later confirmed, s. 7(5) does
    not grant the court discretion to refuse to stay claims that are dealt with in
    an arbitration agreement, and does not permit a court to ignore a valid and
    binding arbitration agreement. Because the motion judge granted relief that was
    unavailable under s. 7(5) or elsewhere in s. 7, he did not make a decision under
    s. 7, so an appeal is not barred by s. 7(6). And because this was a final order
     terminating potential proceedings before the arbitrator and overriding a
    substantive contractual right to arbitrate  an appeal lies to this court under
    s. 6(1)(b) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43.

[8]

I would therefore dismiss the motion to quash
    the appeal.

B.

background

(a)

Facts

[9]

This motion and the appeal arise in litigation about
    amounts owing under a cost-sharing agreement (Reciprocal Agreement) for the
    costs of certain common facilities in two adjoining condominium projects on
    Wellington St. West in Toronto.

[10]

The Reciprocal Agreement is between Soho, the
    declarant
[2]
of the two condominium projects, and Condo 1628. Condo 1628 and
    Condo 1636 each administer one of the two adjoining condominium projects.

[11]

The Reciprocal Agreement apportions costs for
    the common facilities between Condo 1628 (responsible for 69%) and Condo 1636
    (responsible for 31%). The common facilities are owned by Soinco, but are
    managed, operated, and controlled by Condo 1636. Condo 1636 assumed all the
    covenants and obligations of Soho under the Reciprocal Agreement and enforces
    any default of Condo 1628s obligation to pay its share of the common
    facilities costs.

[12]

The Reciprocal Agreement contains the following
    arbitration provision:

ARTICLE 6           ARBITRATION

6.1 The validity, construction and performance
    of this Agreement shall be governed by the laws of the Province of Ontario and
    any dispute that may arise under this Agreement shall be determined by
    arbitration by a single arbitrator to be agreed upon by the parties within
    thirty (30) days of written notification by
any of
    the parties
of a request for arbitration. If the parties
are unable to
agree upon the arbitrator, same shall
    be appointed upon application to a single judge of the Ontario Superior Court
    of Justice
in accordance with
and
pursuant to
the
Arbitration Act, 1991
(Ontario), as amended. The arbitrators decision shall be final and binding
    upon the parties and shall not be subject to appeal.

[13]

In addition, s. 132 of the
Condominium Act, 1998,
S.O. 1998, c. 19 (
Condominium
    Act
)
provides that an agreement  such as the Reciprocal Agreement  between
    a declarant and a corporation created under the
Condominium
    Act
shall be deemed to contain a provision to
    submit any disagreement between the parties to mediation and, if mediation fails,
    to arbitration under the
Arbitration Act
.

[14]

Condo 1628 paid its share of the common
    facilities costs for the years 2005‑2008 and 2015-2018, but disputed the
    amounts for the years 2009-2014. Condo 1628 and Condo 1636 mediated the
    dispute, as required by s. 132 of the
Condominium
    Act
, but when mediation failed, Condo 1628 refused
    to arbitrate the dispute and instead began an application before the Superior
    Court of Justice against Condo 1636, Soho, and Soinco.

[15]

Condo 1628s court application alleges that Soho
    imposed the Reciprocal Agreement on it through oppression, for which it seeks remedies
    under s. 135 of the
Condominium Act
, and based on false, deceptive, or misleading statements or
    information, for which it seeks remedies under s. 133 of the
Condominium Act
.
[3]
It alleges that
    Soho controlled the board of directors of Condo 1628 when the Reciprocal
    Agreement was concluded and imposed a disproportionate share of the common
    facilities costs on Condo 1628, effectively subsidizing Condo 1636.

[16]

Condo 1636, Soho, and Soinco responded by moving
    before the Superior Court to stay the court application in favour of arbitration.

(b)

The motion judges decision

[17]

The motion judge dismissed the motion and ruled that
    the entire matter should proceed in the form of [an] application before th[e]
    court: at para. 76.

[18]

The motion judge rejected Condo 1628s argument
    that because Soinco and Soho are not parties to the Reciprocal Agreement (Soinco
    is not a party and Sohos rights and obligations were assumed by Condo 1636), they
    cannot rely on the arbitration agreement. He ruled that Soinco, Soho, and Condo
    1636 are closely connected, which in his view likely does not present a bar
    to arbitration for disputes under the Reciprocal Agreement: at para. 34.

[19]

The motion judge accepted that some of Condo
    1628s claims are arbitrable, as Condo 1628 had conceded, and held that none of
    the exceptions in s. 7(2) of the
Arbitration Act
to the mandatory stay under s. 7(1) apply: at paras. 67, 69-70. But
    he also ruled that Condo 1628s court application seeks remedies that may not
    be available through arbitration, including remedies for oppression under s.
    135 of the
Condominium Act
and for providing material information that was false, deceptive,
    or misleading under s. 133 of the
Condominium Act
: at paras. 14, 39‑42, 75. He ruled that the arbitration
    mandated by s. 132 of the
Condominium Act
was clearly not intended to govern disputes whose core or essence
    is oppression: at para. 63. He therefore held that s. 135 of the
Condominium Act
requires aspects of the
    court application to proceed in court, while the arbitration provision in the
    Reciprocal Agreement, s. 132 of the
Condominium Act
, and ss. 7 and 17(1)
of the
Arbitration Act
require other aspects to proceed to arbitration: at para. 69.

[20]

The motion judge ruled that it was not
    appropriate to bifurcate the arbitrable and non-arbitrable claims and held that
    all the claims could continue before the court. Relying on this courts
    decision in
Griffin
,
    he stated that the discretion under s. 7(5) to grant a partial stay of the
    court proceeding should not be exercised where the claims cannot reasonably be
    bifurcated, because this would lead to inefficiency, a potential multiplicity
    of proceedings, and added cost and delay: at para. 73, citing
Griffin
, at para. 47. He therefore ordered
    the entire matter to proceed in court, at paras. 75-76:

While an arbitration could deal with some
    aspects of this dispute, and while other aspects remain contingent on how
    narrow or broad an arbitrator sees the jurisdiction
of
    the arbitration
clause in the Reciprocal Agreement and s. 132 of the
Condominium
    Act
,
it is apparent that
what I have
    concluded are the core or essential aspects of this application would need to
    proceed to this court to be resolved, as they arise under s. 135 of the
Condominium
    Act
.

Consequently, in
light of s. 138 of the
Courts of Justice Act
and r. 1.04 of
    the
Rules of Civil Procedure
, to promote an efficient and complete
    adjudication of the allegations that [Condo 1628] has raised against [Condo 1636],
    Soho and Soinco, this entire matter should proceed in
the
    form of
the application before this court.

(c)

Subsequent events

[21]

A few weeks after the motion judges decision, the
    Supreme Court released
Wellman
. A majority of the Court overturned this courts decision in
Griffin
on the interpretation of s.
    7(5) of the
Arbitration Act
, on which the motion judge had relied.

[22]

Condo 1636, Soho, and Soinco appealed the motion
    judges decision to this court, relying in part on
Wellman
.

[23]

Shortly before the appeal was to be heard by a
    three-judge panel, this court asked the parties to be prepared to address
    whether it had jurisdiction to hear the appeal, given the comments of the
    majority of the Supreme Court in
Wellman
, at paras. 91 and 104, which mention s. 7(6) of the
Arbitration Act
.

[24]

At the appeal hearing, Condo 1628 claimed that
    s. 7(6) bars the appeal. Its position was that this court should overturn the
Huras
line of cases on the
    interpretation of s. 7(6) and quash the appeal. As a result, this court
    adjourned the appeal to convene a five-judge panel for the motion to quash.

C.

discussion

[25]

The central issue on this motion is whether s.
    7(6) of the
Arbitration Act
bars an appeal to this court from the motion judges order refusing
    to stay the court proceeding and permitting both the arbitrable and
    non-arbitrable claims to proceed in court. Condo 1628 contends that, given the
    reasoning in
Wellman
, this
    court should overturn the
Huras
line of cases on s. 7(6) and quash the appeal.

[26]

To address this issue, I will first review the
    discussion in
Wellman
of the applicable statutory framework of the
Arbitration
    Act
. I will then review the
Huras
line of cases on s. 7(6). With
    that background, I will address three questions:

1.

Did the Supreme Court in
Wellman
overrule
    the
Huras
line of cases
on the
    interpretation of
s. 7(6) of the
Arbitration Act
? My answer is
    no.

2.

Should the
Huras
line of cases be
    overruled? My answer is no.

3.

Does s. 7(6) of the
Arbitration Act
bar
    this appeal? My answer is no.

I would therefore dismiss the motion
    to quash the appeal.

(a)

Wellman
on the
    purpose and scheme of the
Arbitration Act

[27]

Wellman
was mainly
    concerned with the proper interpretation of s. 7(5) of the
Arbitration Act
:

Agreement covering part of dispute

7(5) The court may stay the proceeding
with respect to
the matters dealt with in the
    arbitration agreement and allow it to continue
with
    respect to
other matters if it finds that,

(a) the agreement deals with only some
of the
matters
in respect
    of
which the proceeding was commenced; and

(b) it is
    reasonable to separate the matters dealt with in the agreement from the other
    matters.

[28]

The Court had to decide whether s. 7(5) of the
Arbitration Act
gave a motion judge
    discretion to refuse to stay arbitrable claims in a proposed class action
    brought against a cellphone company on behalf of a class of customers consisting
    of both consumer claims, which were not subject to arbitration, and business
    customer claims, which were subject to arbitration. Such discretion had been
    recognized in
Griffin
,
    at paras. 46-62, and in the decision under appeal before the Supreme Court,
Wellman v. TELUS Communications Company
,
    2017 ONCA 433, 138 O.R. (3d) 413, at paras. 8, 72-73, 76, 98. Such discretion was
    also recognized by the motion judge in this case: at paras. 72-76. However, Moldaver
    J. for the majority ruled that this was the wrong interpretation of s. 7(5). He
    overturned this courts decision in
Wellman
and stayed the claims of the business customers because those
    customers were legally bound by the arbitration agreement: at para. 102.

[29]

I will review in some detail Moldaver J.s
    reasoning for reaching this conclusion because it is central to Condo 1628s
    argument on this motion.

[30]

Moldaver J. interpreted s. 7(5) in accordance
    with the modern approach to statutory interpretation: the words of an Act are
    to be read in their entire context and in their grammatical and ordinary sense
    harmoniously with the scheme of the Act, the object of the Act, and the
    intention of the Parliament: at para. 47, citing E.A. Driedger,
The Construction of Statutes
, 2nd ed. (Toronto:
    Butterworths, 1983), at p. 87, and
Bell ExpressVu
    Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2
    S.C.R. 559, at para. 26.

[31]

Moldaver J. stated, at paras. 51-56, that the
    purpose and scheme of the
Arbitration Act
reflect the policy that parties to a valid arbitration agreement
    should abide by their agreement, a policy that is tied to two principles. The
    first is party autonomy  the principle that parties should generally be
    allowed to craft their own dispute resolution mechanism through consensual
    agreement: at para. 52 (citations omitted). The second is the principle of
    limited court intervention in arbitration matters: at para. 55.

[32]

He stressed that these policies and principles
    are intimately related: [t]he policy that parties to a valid arbitration
    agreement should abide by their agreement
goes hand in
    hand
with the principle of limited court intervention in arbitration
    matters: at para. 55 (emphasis added). The principle of limited court
    intervention in arbitration matters fosters party autonomy and respects the
    parties choice of arbitration as their dispute resolution mechanism. As
    Moldaver J. explained, the hands off approach to matters governed by the
Arbitration Act
is in keeping with the
    modern approach that sees arbitration as an autonomous, self-contained, self‑sufficient
    process pursuant to which the parties agree to have their disputes resolved by
    an arbitrator, not by the courts: at para. 56, citing
Inforica Inc. v. CGI Information Systems and Management Consultants
    Inc.
, 2009 ONCA 642, 97 O.R. (3d) 161, at para.
    14. I will return to the intimate relationship between these policies and
    principles later.

[33]

Moldaver J. read s. 7(5) in the context of s. 6
    and the rest of s.
7
. Section 6 of the
Arbitration Act
provides:

Court intervention limited

6
No court
    shall intervene in matters governed by this Act, except for
the following purposes
,
in
    accordance with
this Act:

1. To assist the conducting of
    arbitrations.

2. To ensure that arbitrations are
    conducted
in accordance with
arbitration
    agreements.

3. To prevent unequal or unfair treatment
    of parties to arbitration agreements.

4. To enforce
    awards.

[34]

He noted that s. 6 signals that courts are
    generally to take a hands off approach to matters governed by the
Arbitration Act
: at para. 56.

[35]

Moldaver J. also read s. 7(5) in light of s.
    7(1), which provides:

Stay

7
(1) If a
    party to an arbitration agreement commences a proceeding
in respect of
a matter to be submitted to
    arbitration under the agreement, the court in which the proceeding is commenced
    shall, on the motion of another party to the arbitration agreement, stay the
    proceeding.

[36]

He explained, at para. 63, that the general rule
    in s. 7(1)  that when a party to an arbitration agreement commences a
    proceeding regarding a matter dealt with in the agreement, the court shall stay
    the proceeding in favour of arbitration  reaffirms the concept of party
    autonomy and upholds the policy underlying the
Arbitration
    Act
that parties to a valid arbitration agreement
    should abide by their agreement.

[37]

Moldaver J. also noted s. 7(2), which provides five
    exceptions to s. 7(1):

Exceptions

(2) However, the court may refuse to stay the
    proceeding in
any of
the following cases:

1. A party entered into the arbitration
    agreement while under a legal incapacity.

2. The arbitration agreement is invalid.

3. The subject-matter of the dispute is not
    capable of being the subject of arbitration under Ontario law.

4. The motion was brought with undue delay.

5. The matter is
a
proper
one
for default or summary
    judgment.

[38]

He explained that these exceptions are all
    cases where it would be either unfair or impractical to refer the matter to
    arbitration: at para. 65, citing
MDG Kingston Inc.
    v. MDG Computers Canada Inc.
, 2008 ONCA 656, 92
    O.R. (3d) 4, at para. 36, leave to appeal refused, [2010] S.C.C.A. No. 94.

[39]

Finally, Moldaver J. addressed s. 7(5), the
    partial stay provision, which he noted provides another exception to the
    general rule in s. 7(1): at para. 66. He held that ss. 7(5)(a) and (b) contain two
    preconditions and a discretionary exception:

·

The two preconditions are, first, the
    proceeding must involve both (1) at least one matter that
is
dealt
    with in the arbitration agreement and (2) at least one matter that
is not
dealt
    with in the arbitration agreement; and, second, it is reasonable to separate
    the matters dealt with in the [arbitration] agreement from the other matters: at
    paras. 66-68 (emphasis in original).

·

The discretionary exception provides that [i]f
    both preconditions are satisfied, then instead of ordering a full stay [of the
    court proceeding], the court may allow the matters
that
    are
not
dealt with in the arbitration agreement to proceed in
    court, though it must nonetheless stay the court proceeding
in respect of
the matters
that
are

dealt with in the
    agreement: at para. 69 (emphasis in original).

[40]

Moldaver J. refused to read s. 7(5) in isolation
    from ss. 7(1) and 7(2), as effectively a standalone provision giving the motion
    judge discretion to refuse to stay the court proceeding for the matters dealt
    with in the arbitration agreement: at paras. 73-74. Although this court had interpreted
    s. 7(5) that way in
Griffin
, Moldaver J. held that this was the wrong interpretation of s.
    7(5). He held that such an interpretation conflicts with the policy underlying
    the
Arbitration Act
that parties to a valid arbitration agreement should abide by their agreement. It
    would also reduce the certainty and predictability associated with arbitration
    agreements by allowing persons who are party to an arbitration agreement to
    piggyback onto the claims of others  and potentially discourage parties from
    using arbitration as an efficient, cost-effective means of resolving disputes:
    at para. 76.

[41]

Moldaver J. added that s. 138 of the
Courts of Justice Act
, which provides
    that [a]s far as possible, multiplicity of legal proceedings shall be
    avoided, does not provide a basis to override s. 7(5). He noted that the
    stipulation in s. 138 that the court shall avoid a multiplicity of
    proceedings is tempered by language that the court must do so only as far as
    possible. He observed that s. 7(5) expressly contemplates bifurcation of
    proceedings, with a potentially concurrent arbitration and court adjudication,
    and therefore the court must give effect to the will of the legislature in s.
    7(5): at para. 90.

[42]

Moldaver J. thus held that when arbitrable and
    non-arbitrable matters are combined in a single court proceeding and it is
    reasonable to separate these matters, s. 7(5) gives the motion judge discretion
    to allow the court proceeding to continue in respect of the matters not dealt
    with in the arbitration agreement, provided that the judge stays the court
    proceeding in respect of the matters dealt with in the arbitration agreement. But
    under s. 7(5) the motion judge cannot refuse to stay the court proceeding in
    respect of the matters dealt with in the arbitration agreement: at paras.
    101-102. Section 7(5) does not  permit the court to ignore a valid and
    binding arbitration agreement: at para. 103.

[43]

Wellman
expressly
    overturned this courts contrary interpretation of s. 7(5) in
Griffin
. But
Wellman
also necessarily overturned other
    cases that have adopted the same erroneous interpretation of s. 7(5) as this
    court in
Griffin
. In
Wellman
, Moldaver J. noted that this court
    in
Griffin
had
    referred to a line of cases in which courts refused a stay and allowed the
    action to proceed on the basis that only some of the litigants were bound by an
    arbitration clause and the claims were so closely related that it would be
    unreasonable to separate them: at para. 34. The Ontario cases that Moldaver J.
    listed are
Radewych v. Brookfield Homes (Ontario)
    Ltd.
, 2007 CanLII 23358 (Ont. S.C.),
    affd 2007 ONCA 721;
Johnston v. Goudie
(2006), 212 O.A.C. 79, leave to appeal refused,
    [2006] S.C.C.A. No. 410;
Penn-Co Construction
    Canada (2003) Ltd. v. Constance Lake First Nation

(2007),
    66 C.L.R. (3d) 78 (Ont. S.C.), affd 2008 ONCA 768, 76 C.L.R. (3d) 1;
Frambordeaux Developments Inc. v. Romandale Farms Ltd.
, 2007 CanLII 55364 (Ont. S.C.).
These cases must, in my view, be taken as having been overturned on
    the interpretation of s. 7(5).
I
    will return to this point later.

[44]

Finally, Moldaver J. discussed s. 7(6) briefly. Before
    addressing those comments, I will first review the
Huras
line of cases on the interpretation of s. 7(6).

(b)

The
Huras
line of cases on s. 7(6) of the
Arbitration
    Act

[45]

In
Huras
, this court held that a motion judges decision that a matter is
    not subject to arbitration under an arbitration agreement is a decision outside
    the scope of s. 7, and thus an appeal from that decision is not barred by s.
    7(6).

[46]

Huras
concerned
    a proposed class proceeding brought on behalf of a group of persons who had enrolled
    in a training program to become part of a companys sales force. The trainees were
    not paid during the training period, but if later hired would sign an agreement
    providing that any dispute between the parties would be negotiated and then
    arbitrated.

[47]

The motion judge in
Huras
dismissed a motion brought under s. 7(1) of the
Arbitration Act
to stay the proposed
    class proceeding and refer the dispute to arbitration because he held that the
    arbitration clause did not apply retroactively to the training period. On a
    motion to quash the appeal, Finlayson J.A. for the court held, at para. 10, that
    s. 7(6) did not bar the appeal if the motion judge had concluded that the
    arbitration agreement did not apply:

Where there is no arbitration clause, the
Arbitration
    Act, 1991
has no application, or, putting it another way, the dispute lies
    beyond the scope of s. 7. It follows that if the court has decided that the
Act
is not applicable, then the prohibition against an appeal in s. 7(6) is equally
    not applicable: see
Deluce Holdings Inc. v. Air Canada
(1992), 12 O.R.
    (3d) 131 (Gen. Div.) and
Simmons v. London (City)
, [1997] O.J. No.
    3073 (Gen. Div.).

[48]

Finlayson J.A. held that the court had
    jurisdiction to hear the appeal under s. 6(1)(b) of the
Courts of Justice Act
, which provides
    that, unless an appeal lies to the Divisional Court, an appeal lies to the
    Court of Appeal from a final order of a judge of the Superior Court of Justice.
    He ruled that the dismissal of the stay motion was a final order as to the
    forum where the dispute would be resolved and affected the substantive
    contractual right to resolve the dispute by arbitration. Section 6(1)(b)
    therefore provided a right of appeal to this court: at paras. 12-17.

[49]

In the 20 years since
Huras
was decided, Finlayson J.A.s
    interpretation of s. 7(6) has been followed by this court in seven unanimous
    decisions, including by two five-judge panels: see
Brown
    v. Murphy
(2002), 59 O.R. (3d) 404 (C.A.), at
    para. 8,
per
Charron
    J.A. (as she then was);
Mantini v. Smith Lyons LLP
(2003), 64 O.R. (3d) 505 (C.A.), at paras. 15-16,
per
Feldman J.A., leave to appeal refused,
    [2003] S.C.C.A. No. 344;
Woolcock v. Bushert
(2004), 246 D.L.R. (4th) 139 (Ont. C.A.), at para. 15,
per
Cronk J.A.;
Smith Estate v. National Money Mart Co.
, 2008 ONCA 746, 92 O.R. (3d) 641, at para. 29,
per
Sharpe J.A. (five-judge panel),
    leave to appeal refused, [2008] S.C.C.A. No. 535;
Inforica
, at paras. 31-32,
per
Sharpe J.A.;
Griffin
, at para. 25,
per
Sharpe J.A. (five-judge panel); and
Haas
    v. Gunasekaram
, 2016 ONCA 744, 62 B.L.R. (5th) 1,
    at para. 3, n. 1,
per
Lauwers J.A
.

[50]

Brown
and
Griffin
contain especially clear statements
    of the interpretation of s. 7(6) adopted in
Huras
.

[51]

In
Brown
, Charron J.A. explained, at para. 5, that
Huras
first requires the court to
    interpret the arbitration agreement and to decide whether the subject matter of
    the action falls within its scope; only then can the court decide whether the
    appeal bar in s. 7(6) applies:

Where the motions court determines that the arbitration
    clause has no application, as it did in
Huras
, the dispute lies beyond
the scope of
s. 7 and the
Arbitration Act
is not applicable. Finlayson J.A. therefore concluded that the prohibition
    against an appeal in s. 7(6) was equally not applicable.

[52]

Charron J.A. summarized when s. 7(6) applies, at
    para. 8:

[T]he bar under s. 7(6) applie[s] to any
    decision by the motions court under s. 7 to grant or refuse a stay of 
a
    proceeding in respect of a matter to be submitted to arbitration under the agreement

    within the meaning of s. 7(1). However, a decision by the motions court that a
    matter was
not
subject to arbitration under the terms of the
    arbitration agreement fell outside the scope of s. 7 and a right of appeal lay
    to this court from that decision. [Italics in original.]

[53]

In
Griffin
, at para. 25, Sharpe J.A. summarized when s. 7(6) does not apply:

The
Arbitration Act
, s. 7(6)
provides that "there is no appeal
    from the court's decision" on a stay application under the section.
It
    is now well-established that this provision does not preclude an appeal from an
    order refusing to grant a stay on the ground that the matter is not subject to
    arbitration
:
Huras v. Primerica Financial Services Ltd.
,
(2000),

137 O.A.C. 79 (C.A.)
;
Mantini v. Smith Lyons LLP

(2003),
64 O.R. (3d) 505
,
[2003]
    O.J. No. 1831 (C.A.)
;
Inforica Inc. v. CGI
    Information Systems and Management Consultants Inc.

(2009),
97 O.R. (3d) 161 (C.A.)
; [
Smith Estate v. National Money Mart Co.
,
    2008 ONCA 746].

As the motion
    judge found that the matter was not subject to arbitration, on the authority of
    these cases, it follows that
s. 7(6)
does not bar an appeal to this court
. [Emphasis added.]

[54]

The Supreme Court in
Wellman
did not refer to this paragraph
    from
Griffin
.

[55]

Two of the leading texts on Canadian arbitration
    law have summarized the jurisprudence on s. 7(6) in comparable terms.

[56]

J. Brian Casey in
Arbitration Law in Canada: Practice and Procedure
, 3rd ed. (Huntington, N.Y.: Juris, 2017), states, at p. 367:

It is now well established that prohibition
    respecting appeal does not preclude an appeal from an order refusing to grant a
    stay on the ground that the matter is not subject to arbitration.

[57]

Similarly, J. Kenneth McEwan and Ludmila B.
    Herbst in
Commercial Arbitration in Canada: A Guide
    to Domestic and International Arbitrations
(Aurora: Canada Law Book, 2004) (loose-leaf updated 2018) state, at para. 3:40.110:

[A] decision by the motions court that a
    matter (or, where applicable, all the claims) is not subject to arbitration
    under the terms of the arbitration agreement falls outside the scope of the
    stay provision and a right of appeal lies to the court of appeal from that
    decision
. An order refusing a stay finally
    determines the forum in which the dispute is to be resolved and terminates any
    possible proceedings before the arbitral body. The order also deprives a party
    of the substantive right of resolving its dispute by good faith negotiation and
    arbitration. [Emphasis added; footnotes omitted.]

[58]

Although the Ontario legislature has amended Ontarios
    arbitration legislation several times since
Huras
was decided, and has enacted legislation allowing consumers to commence
    class proceedings regarding consumer agreements even when those agreements require
    mandatory arbitration, it has never overridden this courts interpretation of
    s. 7(6): see S.O. 2006, c. 1, s. 1; S.O. 2006, c. 19, Sched. C, s. 1(1); S.O.
    2009, c. 33, Sched. 2, s. 5; S.O. 2017, c. 2, Sched. 5, s. 13; and
Consumer Protection Statute Law Amendment Act, 2002
, S.O. 2002, c. 30, s. 8(1).

[59]

This courts interpretation of s. 7(6) in the
Huras
line of cases has also been adopted
    as persuasive authority by the appeal courts of Manitoba, New Brunswick, and
    Alberta in interpreting identical provisions in their arbitration statutes, all
    of which are modelled on s. 7(6) of the Uniform Law Conference of Canadas
Uniform Arbitration Act
(1990): see
Hnatiuk v. Court
, 2010 MBCA 20, 251
    Man. R. (2d) 178, at paras. 26-35;
Chrysler Canada
    Inc. v. Eastwood Chrysler Dodge Ltd.
, 2010 MBCA
    75, 262 Man. R. (2d) 1, at para. 37;
Hopkins v.
    Ventura Custom Homes Ltd.
, 2013 MBCA 67, 294 Man.
    R. 168, at paras. 43-49;
Briones v. National Money
    Mart Co.
, 2014 MBCA 57, 306 Man. R. (2d) 129, at
    paras. 21-22, leave to appeal refused, [2014] S.C.C.A. No. 355;
SNC-SNAM, G.P., a partnership between SNC-Lavalin Inc. and
    Snamprogetti Canada Inc. v. Opron Maritimes Construction Ltd.
, 2011 NBCA 60, 336 D.L.R. (4th) 129, at paras. 35-40;
A.G. Clark Holdings Ltd. v. HOOPP Realty Inc.
, 2013 ABCA 101, 544 A.R. 114, at paras. 6-14; and
Lafarge Canada Inc. v. Edmonton (City)
,
    2013 ABCA 376, 561 A.R. 305, at para. 4.

[60]

In
Opron Maritimes
, at paras. 36 and 40, Richard J.A. (now Chief Justice) for the New
    Brunswick Court of Appeal explained why he found this courts reasoning in
Huras
and later cases to be
    compelling:

The Ontario cases persuade me to conclude 
    that if a motion judge stays a proceeding
on the
    grounds
the conditions in s. 7(1) are met, there can be no appeal from
    that decision. Similarly, if a motion judge concludes that at least
one of the criteria
listed in s. 7(2) is met, and
, as a result,
refuses to stay the proceeding, there
    can be no appeal from that decision. Likewise, if a motion judge makes a
    determination under s. 7(5) of the [
Arbitration Act
, S.N.B. 1992, c.
    A-10.1], there can be no appeal from that decision.
On
    the other hand,
if the motion judge holds there is no applicable
    arbitration agreement upon which the proceedings could be stayed, or
, in other words,
if the judge
does not make any of
the determinations he or she
might be called upon to
make under s. 7 of the
Arbitration
    Act
, then s. 7(6) cannot be successfully invoked to bar an appeal
.
    [Emphasis added.]

[61]

The Alberta Court of Appeal in
HOOPP Realty
, at para. 13, agreed with Richard
    J.A.:

We agree with the conclusion reached by Richard
    JA of the New Brunswick court that, if the motion judge holds there is no
    applicable arbitration agreement upon which the proceedings could be stayed,
    then s 7(6) cannot be successfully invoked to bar an appeal: see
Opron
    Maritimes
at para 40. In such circumstances, the usual litigation process
    is followed. The litigants
are entitled to access
to
    all the court processes, including appellate review, the agreement itself
    having been determined to fall outside
the provisions
    of
the
Arbitration Act
, [R.S.A. 2000, c. A-43]. If the
    agreement is outside the scope of the
Act
, s 7(6) can have no
    application.

[62]

This review of the
Huras
line of cases shows that courts have tackled the question of when
    s. 7(6) bars an appeal through several related inquiries. Courts have held that
    s. 7(6) does not bar an appeal when: (i) there is no arbitration agreement or
    no applicable arbitration agreement; (ii) the dispute lies beyond the scope of s.
    7; (iii) the
Arbitration Act
does not apply; and (iv) the motion judge did not make a decision under
    s. 7. Each of these inquiries is directed at the same question  the question raised
    by s. 7(6)  whether the motion judge made a decision under s. 7 of the
Arbitration Act
. If the answer is
    yes, s. 7(6) bars an appeal. If the answer is no, s. 7(6) does not bar an
    appeal.

[63]

With this background on
Wellman
and the
Huras
line of cases, I now turn to
    consider the three questions arising on this motion: (1) Did
Wellman
overrule the
Huras
line of cases? (2) Should the
Huras
line of cases be overruled? (3)
    Does s. 7(6) of the
Arbitration Act
bar this appeal?

Issue #1: Did the Supreme Court in
Wellman
Overrule the
Huras
Line of Cases?

[64]

Although Condo 1628 relies on
Wellman
, it does not claim that
Wellman
overruled the
Huras
line of cases on the
    interpretation of s. 7(6). Its factum accepts that 
Wellman
expressly avoids ruling on s.
    7(6), and states that Moldaver J. declines to make a final ruling on [s.
    7(6)] for a variety of reasons.

[65]

I agree with Condo 1628s interpretation of
Wellman
on this point.

[66]

Moldaver J. referred to s. 7(6) in two
    paragraphs of his reasons. The first time was at the end of the discussion of
    the Section 7 Framework, at para. 91:

(iv)     Section 7(6)  Bar on Appeals

[91]    Finally, s. 7(6) provides simply that
    [t]here is no appeal from the courts decision. Given the absence of any
    qualifying language, s. 7(6) must be taken as referring to a decision made
    under any subsection
contained
in s. 7. This
    would include, for example, a decision to stay the proceeding under s. 7(1), a
    decision to refuse a stay under s. 7(2), or a decision to order a partial stay
    under s. 7(5).

[67]

This paragraph was not part of the
ratio decidendi
of the majority decision,
because this
    was not the legal point actually decided. The point actually decided was that
    the lower courts had erred in law by interpreting s. 7(5) of the
Arbitration Act
incorrectly and
    refusing to order a stay that, under s. 7(1), was mandatory  [Section] 7(5)
    does not  permit the court to ignore a valid and binding arbitration
    agreement: at para. 103.

[68]

Still, para. 91 of
Wellman
forms part of the majoritys discussion of the s. 7 framework and should
    be viewed as
obiter dicta
intended to provide guidance, while mindful that not every phrase
    in a judgment of the Supreme Court should be treated as if enacted in a
    statute:
R. v. Henry
,
    2005 SCC 76, [2005] 3 S.C.R. 609, at para. 57. I take Moldaver J.s central
    point to be that the decision referred to in s. 7(6) is a decision made
    under any subsection contained in s. 7  an observation consistent with, and
    reflected in, the
Huras
line of cases.

[69]

The second time Moldaver J. referred to s. 7(6) in
Wellman
was just
    before the conclusion of his reasons, at para. 104:

4. Section 7(6)  Bar on Appeals

[104]  Finally, I note that the court below
    did not address the potential application of s. 7(6) of the
Arbitration Act
,
    and the matter was discussed only briefly during oral argument before this
    Court.
Neither of the parties
has suggested
    that the s. 7(6) bar applies.
In the absence of
full
    submissions, I do not consider it appropriate to make a final ruling on the
    matter.

[70]

This paragraph flags for future consideration,
    and with the benefit of full submissions, the issue of when s. 7(6) applies. Because
    the interpretation of s. 7(6) was left open for future consideration, I
    conclude that
Wellman
did not overrule the
Huras
line of cases.

[71]

I now turn to consider the issue flagged but not
    decided in
Wellman
 when
    s. 7(6) bars an appeal to this court. Subsumed in this issue is whether the
Huras
line of cases should be overruled.

Issue #2: Should the
Huras
Line of Cases
    Be Overruled?

(a)

This courts approach to overruling its own
    decisions

[72]

As a general rule, this court is bound to follow
    its past decisions, even if an individual judge or a different panel of the
    court disagrees with them. As Sharpe J.A. explained on behalf of a five-judge
    panel in
Fernandes v. Araujo
, 2015 ONCA 571, 127 O.R. (3d) 115, at para. 45:

As an intermediate court of appeal, we are
    ordinarily bound to follow our past decisions, even decisions with which we
    disagree.
It is important that we do
so. Our
    common law legal tradition
rests upon the idea that
    we will adhere
to what we decided in the past. As expressed in the Latin
    phrase
stare decisis
, we stand by things
that
    have been
decided. The rule of precedent provides certainty,
    consistency, clarity and stability in the law. It fosters the orderly and
    efficient resolution of disputes and allows parties to obtain reliable legal
    advice and to plan their
affairs accordingly
.

[73]

Even so, this court may depart from its own
    precedents.
When this court is asked to overrule one of
    its own decisions, the court first asks whether the earlier decision was
    correctly decided. If the court determines that the earlier decision was
    wrongly decided, the court then asks whether the decision should be overruled,
    based on weighing the advantages and disadvantages of correcting the error, by
    focusing on the nature of the error, and the effect and future impact of either
    correcting it or maintaining it, including the effect and impact on the
    parties and future litigants and on the integrity and administration of our
    justice system:
David Polowin Real Estate Ltd. v.
    Dominion of Canada General Insurance Co.
(2005), 76
    O.R. (3d) 161 (C.A.), at paras. 107, 127, leave to appeal refused, [2005]
    S.C.C.A. No. 388; see also
R. v. Jenkins
, 2010 ONCA 278, 99 O.R. (3d) 561, at para. 29, leave to appeal
    refused, [2010] S.C.C.A. No. 223;
Green v. Canadian
    Imperial Bank of Commerce
, 2014 ONCA 90, 118 O.R.
    (3d) 641, at para. 15, affd 2015 SCC 60, [2015] 3 S.C.R. 801; and
United States v. Aneja
, 2014 ONCA 423,
    120 O.R. (3d) 620, at para. 58.

[74]

In what follows, I first summarize Condo 1628s
    submission and identify the three propositions on which it is based. I then
    consider whether the
Huras
line of cases should be overruled.

(b)

Condo 1628s submission

[75]

Condo 1628 submits that this court should
    overrule the
Huras
line of cases. Its submission rests on three propositions.

[76]

First, Condo 1628 asserts that the
Huras
line of cases is not in
    accordance with the modern approach to statutory interpretation. Condo 1628s
    factum contends that there are only two possible interpretations of s. 7(6):
    either s. 7(6) bars all appeals under s. 7, which it calls the comprehensive
    interpretation; or s. 7(6) only bars appeals where a stay has been granted,
    which it calls the
status quo
interpretation, and which it says is reflected in the
Huras
line of cases. Condo 1628 claims that
    this court should prefer the comprehensive interpretation over the
status quo
interpretation [a]s most
    consistent with the purpose and spirit of the
Arbitration
    Act
, including the hands off approach of limited
    judicial intervention that
Wellman
affirms, and because the comprehensive interpretation better
    reflects the modern approach to statutory interpretation. Condo 1628 submits that
    s. 7 must be read as a one-time opportunity for a party to an arbitration
    agreement to challenge a proceeding in the courts. Once that opportunity is
    exhausted, there is no further recourse.
There is
    no appeal
 (emphasis in original).

[77]

Second, Condo 1628 asserts that s. 7(6)
    precludes any appeal from a motion
brought
under
    s. 7, including this appeal (emphasis added).

[78]

Third, Condo 1628 asserts that the
Huras
line of cases is wrongly decided
    because it reads words into s. 7(6) by allowing an appeal to this court if the
    motion judge refused to stay the court proceeding. Condo 1628s factum contends
    that the reasoning of the
Huras
line of cases is [i]mpeccably logical, but this is not what s. 7
    says:

S. 7(6) does not distinguish between results.
    Whether a stay is granted or denied, the decision is still one under s. 7. It
    is the
Courts decision
. S. 7(6) bars appeals from the courts
    decision. Had the Legislature intended to bar appeals from stays but allow
    appeals from refusals it could have said so. It chose not to.

The
status quo
interpretation
    inferentially adds a term to s. 7: if the motions Court refuses the stay, then
    it is not a courts decision under s. 7(6). This added term is unexpressed in
    s. 7. [Emphasis in original.]

(c)

The
Huras
line of cases was correctly decided

[79]

In addressing Condo 1628s submission, I
    acknowledge that the proper interpretation of s. 7(6) of the
Arbitration Act
is not straightforward.
    The appellate jurisprudence in four provinces interpreting the eight words in
    s. 7(6) confirms this; see also
Hnatiuk
, at para. 27 (interpretation of s. 7(6) not so straightforward
    despite first blush reading of the provision);
Opron
    Maritimes
, at para. 39.

[80]

As I will explain, however, ultimately I do not
    accept Condo 1628s interpretation of s. 7(6) or the three propositions on
    which it is based. In my view, the
Huras
line of cases was correctly decided.

[81]

Condo 1628s first proposition is that the
Huras
line of cases does not reflect
    the modern approach to statutory interpretation. It says that the
Huras
line of cases fails to read the
    words of s. 7(6) in their entire context and in their grammatical and ordinary
    sense harmoniously with the scheme of the
Arbitration
    Act
, the object of that Act, and the intention of
    the Ontario legislature.

[82]

I do not agree with this submission.

[83]

I start with the text of s. 7(6). Section 7(6)
    states: There is no appeal from the courts decision. This raises the question:
    what decision is referred to?

[84]

This question was answered by Moldaver J. in
Wellman
, at para. 91: [g]iven the
    absence of any qualifying language, s. 7(6) must be taken as referring to a decision
    made under any subsection
contained
in s. 7. Moldaver J. gave as examples of decisions
    made under s. 7 a decision to stay the proceeding under s. 7(1), a decision to
    refuse a stay under s. 7(2), or a decision to order a partial stay under s.
    7(5): at para. 91.

[85]

Interpreting s. 7(6) as barring an appeal when
    the court
makes a decision
under any other subsection of s. 7 reads s. 7(6) in context, which
    includes the rest of s. 7. By contrast, Condo 1628s interpretation reads s.
    7(6) as essentially a standalone provision, in isolation from the rest of s. 7,
    as barring an appeal whenever a motion is brought under s. 7  this is Condo
    1628s second proposition, which I address below.

[86]

The Supreme Courts recent decision in
Uber Technologies Inc. v. Heller
, 2020 SCC
    16, adds further weight to the view that s. 7(6) bars an appeal only from a
    decision made under s. 7 of the
Arbitration Act
. A majority of the Court held that an arbitration agreement in a
    standard form contact between Uber and its drivers was unenforceable. One issue
    before all three levels of court was which arbitration statute applied to the
    dispute  the
Arbitration Act
, which contains an appeal bar in s. 7(6), or the
International Commercial Arbitration Act, 2017
, S.O. 2017, c. 2, Sched. 5 (
ICAA
), which contains no counterpart to s. 7(6). Uber brought a motion under
    the
ICAA
to stay the proposed
    class proceeding in favour of arbitration. The motion judge agreed that the
ICAA
applied and stayed the proceeding:
Heller v. Uber Technologies Inc.
, 2018 ONSC 718, 421 D.L.R. (4th) 343, at paras. 34, 50, 80. On
    appeal, this court had serious reservations about this conclusion, but stated
    that nothing turned on it and allowed the appeal because the court held that the
    arbitration agreement was unenforceable:
Heller v.
    Uber Technologies Inc.
, 2019 ONCA 1, 145 O.R. (3d)
    81, at paras. 16, 21, and 74. On further appeal to the Supreme Court, Abella
    and Rowe JJ. for the majority dismissed the appeal. They held that the
Arbitration Act
rather than the
ICAA
applied, but in a footnote remarked
    that had the motion judge issued a stay of the court proceeding under the
Arbitration Act
 the properly
    applicable statute  no appeal to the Court of Appeal would have been available
    because of s. 7(6). Abella and Rowe JJ. stated, at para. 19, footnote 5:

We note in passing that
if the motion judge had issued
a stay under the [
Arbitration
    Act
], no appeal to the Court of Appeal would have been available ([
Arbitration
    Act
], s. 7(6)). A direct appeal to this Court with leave would still have
    been permissible [citations omitted].
In this case,
because
    the motion judges order was made (in error) under the
ICAA
, the Court
    of Appeal did have jurisdiction.

[87]

In my view, Abella and Rowe JJ.s footnote is
    consistent with the comments of Moldaver J. in
Wellman
, and both are consistent with the
Huras
line of cases  s. 7(6) of the
Arbitration
    Act
bars an appeal only when the motion judge made
    a decision under s. 7.

[88]

This interpretation also respects the two principles
    animating the
Arbitration Act 
party autonomy and limited court intervention in arbitration
    matters. When, for example, a motion judge finds that an arbitration agreement and
    thus the
Arbitration Act
do not apply, neither principle is undercut. But if on appeal this
    court concludes that the arbitration agreement and thus the
Arbitration Act
do apply and that the
    dispute should be referred to arbitration, this courts decision promotes party
    autonomy by holding the parties to their agreement to arbitrate. It also
    promotes limited court intervention in arbitration matters, because the court intervenes
    only to ensure that the dispute is arbitrated as agreed.

[89]

By contrast, Condo 1628s interpretation undercuts
    party autonomy by precluding an appeal even when a motion judge erroneously
    fails to give effect to an arbitration agreement. Further, although Condo 1628
    extols its approach as respecting the principle of limited court intervention, its
    approach misunderstands that principle by detaching it from the principle of
    party autonomy. The principle of limited court intervention is a principle of limited
    court intervention
in the arbitration process
. Improperly
    ending an arbitration before it has begun does nothing to promote that principle
    and instead flouts the principle of party autonomy.

[90]

I would therefore reject Condo 1628s first
    proposition, that the
Huras
line of cases strays from the modern approach to statutory
    interpretation.

[91]

I would also reject Condo 1628s second
    proposition, that s. 7(6) bars an appeal from any motion
brought
under s. 7. Section 7(6) refers to a decision, not to a motion brought,
    under s. 7. To state the obvious, a motion may be brought on one statutory basis,
    but the courts decision may be made on a different basis. Citing s. 7 in a
    notice of motion does not bar an appeal to this court. What matters is the
    statutory basis of the motion judges decision  whether the courts decision
    was
made
under s. 7.

[92]

Condo 1628 further argues that not only was the
    motion before the motion judge here brought under s. 7, because s. 7 was the
    stated source for the motion, but s. 7 was also the basis of the motion
    judges decision, because that provision was integral to his reasons. This
    argument does not depend on establishing that the
Huras
line of cases was wrongly decided; it asserts that even under the
Huras
line of cases, s. 7(6) bars an
    appeal. I will address this argument below when I apply the
Huras
line of cases to this appeal.

[93]

Finally, I would reject the third proposition
    advanced by Condo 1628, that the
Huras
line of cases reads words into s. 7(6) by permitting appeals to
    this court when the motion judge refuses to stay the court proceeding.
    According to Condo 1628, the
Huras
line of cases creates an asymmetric rule: appeals are barred if the
    motion judge stays a court proceeding under s. 7 (which Condo 1628 accepts is correct),
    but appeals are not barred if the motion judge refuses to stay a court
    proceeding under s. 7 (which Condo 1628 claims is wrong).

[94]

In my view, Condo 1628s submission does not
    accurately describe the caselaw interpreting s. 7(6). The caselaw recognizes that
    there can be no appeal from a motion judges decision either to grant or refuse
    a stay if the decision is made under s. 7. For example, in
Brown
, Charron J.A. summarized the
    appeal bar in s. 7(6) as applying to any decision by the motions court under
    s. 7 to grant

or refuse a stay
of 
a proceeding in respect of a matter to be submitted to arbitration
    under the agreement
 within the meaning of s. 7(1):
    at para. 8 (italics in original, underlining added). Charron J.A.s statement tracks
    the example Moldaver J. gave in
Wellman
, that s. 7(6) bars an appeal from a decision
to refuse a stay
under s. 7(2): at para. 91
    (emphasis added). See also
Opron Maritimes
, at para. 32: if a motion judge concludes that at least one of the
    criteria in s. 7(2) is met, and, as a result,
refuses to stay
the
    proceeding, there can be no appeal from that decision (emphasis added).

[95]

Thus, the caselaw interpreting s. 7(6) does not
    create an asymmetric rule. Section 7(6) bars an appeal from a motion judges
    decision made under s. 7, whether that decision grants or refuses a stay.

[96]

I would therefore reject each of the three
    propositions Condo 1628 advances to overturn the
Huras
line of cases. In my view, the
Huras
line of cases was correctly decided.

Issue #3: Does s. 7(6) of the
Arbitration
    Act
Bar This Appeal?

[97]

The final issue is whether s. 7(6) of the
Arbitration Act
bars this appeal. If the
    motion judge made a decision under s. 7, then s. 7(6) bars an appeal; but if
    the motion judge did not make a decision under s. 7 and his decision involved a
    final order, an appeal lies to this court under s. 6(1)(b) of the
Courts of Justice Act
.

[98]

As already noted, Condo 1628 asserts that the
    motion judge made a decision under s. 7 because s. 7 was the stated source of
    the motion before him and was integral to his reasons.

[99]

Although there is force to Condo 1628s argument
    that s. 7 was integral to the motion judges reasons, I have concluded that the
    motion judge did not make a decision under s. 7 of the
Arbitration Act
, and thus s. 7(6) does not bar this appeal
. I reach this conclusion for three reasons.

[100]

First, the motion judge did not make a decision under s. 7(1) of the
Arbitration Act
. He
did not stay the
    court proceeding, in whole or in part.

[101]

Second, the motion judge did not make a decision under s. 7(2) of
    the
Arbitration Act
.
    He held that none of the exceptions under s. 7(2) applies: at para. 67. This
    ruling is not challenged.

[102]

Third, the motion judge did not make a decision under s. 7(5) of the
Arbitration Act
. That
    provision provides no statutory authority to refuse to grant a stay of the
    arbitrable claims. Such a disposition is unavailable under s. 7.

[103]

The motion judge, however, refused to grant a stay of any part of the
    court proceeding. He applied this courts decision in
Griffin
and concluded that he had
    statutory authority to override the parties arbitration agreement and to
    permit the entire action  including the arbitrable claims  to proceed in court:
    at paras. 72‑76. But the Supreme Court in
Wellman
held that s. 7(5) provides no such authority. Such a disposition is
    unavailable under s. 7. Under s. 7(5), the motion judge could
order only a partial stay of the court
    proceeding
 to allow the matters not dealt with in the
    arbitration agreement to proceed in court. Had he ordered a partial stay under
    s. 7(5), s. 7(6) would have barred an appeal from that decision. But he had no
    authority to order that the entire matter should proceed in the form of the
    application before this court: at para. 76. This was not a disposition available
    to him under s. 7(5).

[104]

It is not enough, in my view, for a motion judge
to intend or purport to make
a decision under s. 7(5) to trigger the appeal bar in s. 7(6). Rather,
    s. 7(6) is triggered only where s. 7(5) provides
statutory authority
for
    the courts decision, that is, where the potential disposition is permitted
    under s. 7(5). If s. 7(5) cannot sustain a motion judges decision to override
    an arbitration agreement, then that decision cannot be made under s. 7(5). Otherwise,
    even after the Supreme Courts decision in
Wellman
, s. 7(6) would bar an appeal to this court if a motion judge continues
    to apply
Griffin
in
    error.

[105]

I recognize that the motion judge did not have the benefit of
Wellman
when he made his decision
.
At the time, this courts
    interpretation of s. 7(5) in
Griffin
would have afforded him a discretion to override the arbitration
    agreement and allow the entire court proceeding to continue before the court. But
    the Supreme Court in
Wellman
corrected this courts earlier error of interpretation and explained
    what s. 7(5) always meant, from the day of its enactment. The Court did not
    change what s. 7(5) meant or alter its meaning with prospective effect only. Section
    7(5)
never
provided statutory authority for the motion judge to override the
    parties arbitration agreement. Such a disposition has never been available under
    s. 7(5). The motion judges decision was thus not made  because it could not be
    made  under s. 7(5).

[106]

I find support for this conclusion on the legal effect of the
    Supreme Court in
Wellman
overturning this courts erroneous interpretation of s. 7(5) in Lord
    Nicholls speech in
National Westminster Bank plc
    v. Spectrum Plus Limited
, [2005] UKHL 41, [2005] 2
    A.C. 680. Lord Nicholls eloquently described how, generally, a court correcting
    an erroneous judicial interpretation of legislation does not change the law or
    overrule a previous decision with prospective effect only. Instead, the court gives
    effect to the legislatures intention from the date of the enactment of the
    legislation. As Lord Nicholls explained, at para. 38:

[T]he interpretation the court gives an Act of
    Parliament is the meaning which, in legal concept, the statute has borne from
    the very day it went onto the statute book. So, it is said, when your
    Lordships House rules that a previous decision
on
    the interpretation of
a statutory provision was wrong,
there is no question of the House changing the
law.
    The House is doing no more than correct an error of interpretation. Thus, there
    should be no question of the House overruling the previous decision with
    prospective effect only.
If the House were to take
that
    course it would be sanctioning the continuing misapplication of the statute so
    far as existing transactions or past events are concerned. The House, it is
    said, has no power to do this. Statutes express the intention of Parliament.
    The courts must give effect to that intention from the date the legislation
    came into force. The House, acting in its judicial capacity, must give effect
    to the statute and it must do so
in accordance with
what
    it considers is the proper interpretation of the statute.

[107]

This court cited Lord Nicholls comments approvingly in
Ontario (Finance) v. Progressive Casualty Insurance Company of
    Canada
, 2009 ONCA 258, 95 O.R. (3d) 219, at para.
    57.

[108]

It follows that when deciding whether s. 7(6) applies, this court
    cannot avoid evaluating whether s. 7(5) provides statutory authority for the motion
    judges decision. This court must first isolate the basis for the motion judges
    decision before deciding whether s. 7(6) bars an appeal. If s. 7(5) does not provide
    authority for the motion judges decision, then s. 7(6) does not bar this appeal.

[109]

Condo 1628 disputes this, citing this courts decision in
Eggiman v. Martin
, 2019 ONCA 974, leave
    to appeal refused, [2020] S.C.C.A. 44. It claims that this court cannot
    entertain an appeal if s. 7 was integral to the motion judges decision, even
    if he had no statutory authority to apply that provision. Respectfully, I do
    not agree.

[110]

In
Eggiman v. Martin
, 2019 ONSC 1388  released after this courts decision in
Wellman
but before the Supreme Courts
    decision  a motion judge had purported to apply s. 7(5) to refuse to stay an
    action where only some defendants were bound by an arbitration agreement. The
    effect of this decision was to override the arbitration agreement. The motion
    judge relied on this courts decisions in
Radewych
(which was followed in
Griffin
) and
Wellman
. As I have already explained above at para. 43 of my reasons, the
    Supreme Court in
Wellman
overturned these decisions as having erroneously interpreted s.
    7(5).

[111]

This court dismissed the appeal in
Eggiman
as barred by s. 7(6). Although this court decided
Eggiman
after the Supreme Courts
    decision in
Wellman
, the
    court did not refer to
Wellman
in its reasons. Rather, at paras. 8-10 of
Eggiman
, the court relied on this
    courts decision in
Radewych
and concluded
that because the order under appeal fell squarely under s. 7(5), the
    appeal was barred by s. 7(6):

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.

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
.

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). [Emphasis
    added.]

[112]

I agree with the above remarks to the extent they accept that the
    operative question under s. 7(6) is whether the motion judge made a decision under
    s. 7. I respectfully disagree, however, with how s. 7(6) was applied in
Eggiman
. In my view, a motion judges
    decision cannot fall squarely within s. 7(5) if the Supreme Court of Canada has
    repudiated that interpretation of s. 7(5), with effect from the date of the
    enactment of the legislation. Section 7(5) has never provided a court with authority
    to override an arbitration agreement, despite this courts erroneous
    interpretation of s. 7(5) in
Griffin
and
Radewych
. Such a disposition is unavailable and has always been unavailable under
    s. 7(5). All that is left, then, is the motion judges
intended
or
purported
reliance on s. 7(5) as
    statutory authority, but without any legal basis in the statute to do so. Nor, in
    my respectful view, can one avoid addressing whether s. 7(5) provides statutory
    authority for the motion judges decision. That issue must be addressed to
    determine whether the judges decision was made under s. 7(5), and thus whether
    s. 7(6) applies.

[113]

The Supreme Court refused leave to appeal in
Eggiman
, but as is well known, the
    refusal to grant leave
should not be taken to indicate agreement with
    the judgment sought to be appealed[] from:
Canadian Western
    Bank v. Alberta
, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 88.

[114]

To conclude, in my view, the motion judge here had no statutory
    authority under s. 7(5) of the
Arbitration Act
to refuse to stay the claims subject to arbitration and to override
    the arbitration agreement. Such a disposition is unavailable and has always
    been unavailable under s. 7(5). The motion judges decision was therefore not
    made under s. 7 of the
Arbitration Act
, so s. 7(6) does not bar an appeal. And because his order was final
     terminating any possible proceedings before the arbitrator and countermanding
    a substantive contractual right to arbitrate  an appeal from that order lies
    to this court under s. 6(1)(b) of the
Courts of
    Justice Act
.

[115]

This conclusion about the application of s. 7(6) is faithful to the principles
    animating the
Arbitration Act
: it respects the parties autonomy to arbitrate their disputes, and
    it involves no court intervention in the arbitration process. It also honours the
    intention of the Ontario legislature as to the meaning and scope of s. 7(5)
    of the
Arbitration Act
.

[116]

By contrast, Condo 1628s approach to the application of s. 7(6) subverts
    the principles animating the
Arbitration Act
: it fails to respect party autonomy by overriding a valid arbitration
    agreement, and it involves court intervention in the arbitration process by
    ending any arbitration before it has begun. It also flouts the intention of the
    Ontario legislature as to the meaning and scope of s. 7(5) of the
Arbitration Act
.

D.

disposition

[117]

I would dismiss the motion to quash the appeal, with costs to the
    respondents in the agreed amount of $20,000 all inclusive.

Released: October 1, 2020 (G.R.S.)

M.
    Jamal J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. J.C. MacPherson J.A.

I
    agree. G. Pardu J.A.

I
    agree. Grant Huscroft J.A.


APPENDIX

Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194

1.04
(1) These
    rules shall be liberally construed to secure the just, most expeditious and
    least expensive determination of every civil proceeding on its merits.



To Defendant

21.01
(3)

A defendant may move before a judge to have an action
    stayed or dismissed
on the ground that
,

Jurisdiction

(a) the
    court has no jurisdiction over the subject
matter
of
    the action[.]

Arbitration Act, 1991
, S.O. 1991, c. 17

Court
    intervention limited

6
No court shall intervene in matters
    governed by this Act, except for
the following
    purposes
,
in accordance with
this Act:

1. To assist the
    conducting of arbitrations.

2. To ensure that
    arbitrations are conducted
in accordance with
arbitration
    agreements.

3. To prevent unequal or
    unfair treatment of parties to arbitration agreements.

4. To enforce awards.

Stay

7
(1)

If a party to an arbitration
    agreement commences a proceeding
in respect of
a
    matter to be submitted to arbitration under the agreement, the court in which
    the proceeding is commenced shall, on the motion of another party to the
    arbitration agreement, stay the proceeding.

Exceptions

(2) However, the
    court may refuse to stay the proceeding in
any of
the
    following cases:

1. A party entered into
    the arbitration agreement while under a legal incapacity.

2. The arbitration
    agreement is invalid.

3. The subject-matter of
    the dispute is not capable of being the subject of arbitration under Ontario
    law.

4. The motion was
    brought with undue delay.

5. The matter is
a
proper
one
for
    default or summary judgment.

Arbitration may continue

(3) An
    arbitration of the dispute may be commenced and continued while the motion is
    before the court.

Effect of refusal to stay

(4) If the court
    refuses to stay the proceeding,

(a) no arbitration of
    the dispute shall be commenced; and

(b) an arbitration
that has been
commenced shall not be continued, and
    anything done
in connection
with the
    arbitration before the court
made its decision
is
    without effect.

Agreement covering part of dispute

(5) The court may
    stay the proceeding
with respect to
the
    matters dealt with in the arbitration agreement and allow it to continue
with respect to
other matters if it finds that,

(a) the agreement deals
    with only some
of the
matters
in respect of
which the proceeding was commenced;
    and

(b) it is reasonable to
    separate the matters dealt with in the agreement from the other matters.

No appeal

(6) There is no
    appeal from the courts decision.

Condominium Act, 1998
, S.O. 1998, c. 19



Mediation and
    arbitration

132
(1) Every agreement
mentioned
in
    subsection (2) shall be deemed to contain a provision to submit a disagreement
    between the parties
with respect to
the
    agreement to,

(a) mediation by
    a person selected by the parties unless the parties have
previously
submitted the disagreement to mediation;
    and

(b) unless a
    mediator has obtained a settlement between the parties
with
    respect to
the disagreement, arbitration under the
Arbitration Act,
    1991
,

(i) 60 days after the
    parties submit the disagreement to mediation, if the parties have not selected
    a mediator under clause (a), or

(ii) 30 days after the
    mediator selected under clause (a) delivers a notice stating that the mediation
    has failed.

Application

(2) Subsection
    (1) applies to
the following agreements
:

1. An agreement between
    a declarant and a corporation.

2. An agreement between
    two or more corporations.

3. An agreement
    described in clause 98 (1) (b) between a corporation and an owner.

Disagreements on budget statement

(3) The declarant
    and the board shall be deemed to have agreed in writing to submit a
    disagreement between the parties
with respect to
the
    budget statement described in subsection 72 (6) or the obligations of the
    declarant under section 75 to mediation and arbitration
in accordance with
clauses (1) (a) and (b)
    respectively.

Disagreements between corporation and owners

(4) Every
    declaration shall be deemed to contain a provision that the corporation and the
    owners agree to submit a disagreement between the parties
with respect to
the declaration, by-laws or rules to
    mediation and arbitration
in accordance with
clauses
    (1) (a) and (b) respectively.

Duty of mediator

(5) A mediator
    appointed under clause (1) (a) shall confer with the parties and endeavour to
    obtain a settlement
with respect to
the
    disagreement submitted to mediation.

Fees and expenses

(6) Each party
    shall pay the share of the mediators fees and expenses that,

(a) the settlement
    specifies, if a settlement is obtained; or

(b) the mediator specifies
    in the notice stating that the mediation has failed, if the mediation fails.

Record of settlement

(7) Upon
    obtaining a settlement between the parties
with
    respect to
the disagreement submitted to mediation, the mediator shall
    make a written record of the settlement which shall form part of the agreement
    or matter that was the subject of the mediation.

False,
    misleading statements

133
(1) A declarant shall not, in a statement or information that the
    declarant
is required to provide
under this
    Act,

(a) make a
    material statement or provide material information
that
    is
false, deceptive or misleading; or

(b) omit a
    material statement or material information that the declarant
is required to provide
.

Right to damages

(2) A corporation
    or an owner may
make an application to
the
    Superior Court of Justice to recover damages from a declarant for any loss
    sustained
as a result of
relying on a statement
    or on information that the declarant
is required to
    provide
under this Act if the statement or information,

(a) contains a material
    statement or material information
that is
false,
    deceptive or misleading; or

(b) does not contain a
    material statement or material information that the declarant
is required to provide
.



Oppression
    remedy

135
(1) An owner, a corporation, a declarant or a mortgagee
    of a unit may
make an application to
the
    Superior Court of Justice for an order under this section.

Grounds for order

(2) On an
    application, if the court determines that the conduct of an owner, a
    corporation, a declarant or a mortgagee of a unit is or threatens to be
    oppressive or unfairly prejudicial to the applicant or unfairly disregards the
    interests of the applicant, it may
make an order to
    rectify
the matter.

Contents of order

(3) On an
    application, the judge may make any order the judge deems proper including,

(a) an order prohibiting
    the conduct referred to in the application; and

(b) an order requiring
    the payment of compensation.

Courts of Justice Act
, R.S.O. 1990, c. C.43

Court of Appeal jurisdiction

6
(1) An appeal lies to the Court of Appeal from,



(b) a final order
    of a judge of the Superior Court of Justice, except an order referred to in
    clause 19 (1) (a) or an order from which an appeal lies to the Divisional Court
    under another Act[.]

Stay of
    proceedings

106
A court, on its own initiative or on
    motion by any person, whether or not a party, may stay any proceeding in the
    court on such terms as
are
considered
    just.



Multiplicity
    of proceedings

138

As far as
    possible
, multiplicity of legal proceedings shall be avoided.





[1]

The relevant statutory provisions and rules are set out in
    an Appendix to these reasons.



[2]
Under the
Condominium Act
,
    1998
, S.O. 1998, c. 19, s. 1(1), a
declarant is defined to mean a
    person who owns the freehold or leasehold estate in the land described in the
    description and who registers a declaration and description under this Act, and
    includes a successor or assignee of that person but does not include a
    purchaser in good faith of a unit who pays fair market value or a successor or
    assignee of the purchaser.



[3]
Section 135(1) of the
Condominium Act
provides that an order
    for an oppression remedy may be sought by application to the Superior Court of
    Justice. Section 133(2) provides that an application to recover damages against
    a declarant for making a material statement or providing material information
    that is false, deceptive, or misleading may be sought by application to the
    Superior Court of Justice.


