In the arbitration preceding the Ontario Superior Court of Justice (“OSCJ”) decision, Optiva Inc. v, Tbaytel, 2021 ONSC 2929 (CanLII), the respondent successfully brought a motion for summary judgment before a sole arbitrator.
The applicant then appealed the arbitrator’s award to the OSCJ, arguing, among other things, that the arbitrator could not, absent consent of the applicant, proceed by way of summary judgment.
The OSCJ disagreed with the respondent’s position, instead affirming that the “arbitrator could elect to proceed by summary judgment absent the consent of [the applicant]”.
The court cited, as authority for its conclusion, section 20(1) of the Arbitration Act, which states:
- 20 (1) The arbitral tribunal may determine the procedure to be followed in the arbitration, in accordance with this Act.
The OSCJ opined that “summary judgment should be available to the parties in an arbitration subject to the requirement” that the process:
- Allows the arbitrator to make the necessary findings of fact;
- Allows the arbitrator to apply the law to the facts; and
- Is a proportionate, more expeditious and less expensive means to achieve a just result.
As such, this decision confirms that parties to an arbitration may enjoy the potential benefits of the summary judgment process (i.e. efficiency, cost-savings, etc.) without having to bring their matter before the courts. This is of course subject to the language of the parties’ arbitration agreement, which is generally paramount, and to the arbitration rules that the parties have relied on.
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