Z.S. v. B.P., 2020 ONSC 885 is the latest in a series of cases in which Ontario courts have had to determine if an arbitration agreement is enforceable notwithstanding its failure to comply with the procedural requirements of the Regulation to the Arbitration Act.

The parties had signed Minutes of Settlement in which they agreed to proceed with mediation/arbitration. The parties and the arbitrator executed a mediation/arbitration agreement which provided that it would become effective once the domestic violence screening required by the Regulation had been completed. The husband refused to attend for screening and argued that the med/arb agreement was ineffective.

The court ordered the husband to attend for domestic violence screening following which the mediation/arbitration agreement would be effective. Having agreed to mediate/arbitrate in the Minutes of Settlement, the court found that the husband was obliged to cooperate to make the med/arb agreement effective. The issue before the court was somewhat easier than the issues in Horowitz v. Nightingale, Giddings, and  Lopatowski. In those cases the court had to determine if  a party was bound to proceed with arbitration where no arbitration agreement had ever been signed. In Z.S. v. B.P. the parties had executed a med/arb agreement but had failed to comply with the requirement of domestic violence screening in accordance with the Regulation.

While the result in Z.S. v. B.P. will be welcomed by FDR practitioners, the court’s reasoning is still somewhat troubling. The arbitrator signed the required certificate certifying that the parties had been screened for domestic violence and power imbalance (as required by the Regulation) although that was not the case. The Regulation does not appear to permit a certification that is conditional on future events. The court assumed that the screening would find that arbitration was the appropriate process, although that was by no means a forgone conclusion. This case is another reminder for practitioners that the formal procedural requirements of the Arbitration Act and the Regulation must be followed if the process and its results are to be enforceable.

Lorne Wolfson is a  senior partner in  the Family Law Group at Torkin Manes.  Lorne’s practice includes all aspects of family law, including divorce, custody and access, property, support, and domestic contracts. He conducts litigation before every level of court in Ontario, as well as providing mediation and arbitration services.

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