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Arbitration - Appeal-Set-Aside Time Limits [AA s.47]. Campbell v. Toronto Standard Condominium Corporation No. 2600
In Campbell v. Toronto Standard Condominium Corporation No. 2600 (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a Superior Court application ruling that reversed an arbitrator's award ruling. The application held that s.46(1)9 ['Setting aside award - Fraud'] and s.47(2) of the Arbitration Act (AA) ['Time limit - Exception for Fraud'] operated, here on the argument that 'constructive fraud' (which is an equitable principle quite broader that typical fraud) applied in these AA provisions.
Here the court considers the time limits for commencement of appeals and set-asides [AA s.47]:(e) Case law interpreting s. 47: time limit for bringing appeals or applications
[48] Under s. 47(1), an appeal of an award or application to set aside an award “shall be commenced” within 30 days after the decision. This court has affirmed that there is no judicial discretion to extend the 30-day time limit: R & G Draper Farms (Keswick) Ltd. v. 1758691, 2014 ONCA 278, 24 B.L.R. (5th) 175, at paras. 16-21. This interpretation is not only consistent with the wording of the statute, but also with the principles of efficiency and finality.
[49] Section 47(2) recognizes two exceptions to the 30-day time limit: there is no such limit if the appellant or applicant alleges corruption or fraud. Notably, like fraud, corruption also requires evidence of dishonesty: see e.g., Toronto Standard Condominium Corporation No. 1466 v. Weinstein, 2021 ONSC 1306, at para. 22, leave to appeal refused, 2021 ONCA 470, leave to appeal refused, [2021] S.C.C.A. No. 369.
[50] The parties have not pointed to any appellate case law interpreting s. 47(2) but do point to Superior Court decisions interpreting “fraud” as actual fraud: see e.g., Weinstein; 1323257 Ontario Ltd. v. Hyundai Auto Canada Corp. (2009), 2009 CanLII 494 (ON SC), 55 B.L.R. (4th) 265 (Ont. S.C.). As I will explain, these decisions were correct in interpreting “fraud” as actual fraud.
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[59] In this case, had the parties applied to set aside the arbitral award within the 30-day period set by s. 47(1), it is conceivable that their claims might have fallen within some of the other grounds enumerated in s. 46 for setting aside an award, such as the invalidity of the agreement, as set out in s. 46(1)2, or procedural unfairness, as set out in s. 46(1)6 of the Act, though I do not want to be taken as suggesting that such grounds would or could have succeeded in the circumstances. Those routes were no longer open to the respondents after the expiration of 30 days by the express terms of ss. 46 and 47: see e.g., Mattamy (Downsview) Limited v. KSV Restructuring Inc. (Urbancorp), 2023 ONSC 3013, at paras. 39-40.
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