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#19170
POT RETAILERS fail to persuade LEAVE TO APPEAL arbitrator’s Order at industrial condo 2021/01/05 21:32  
Not legal advice as usual

Industrial condo tolerates Declaration-defying non-industrial - but arguably "auxiliary" - commercial uses.

In 2016 - despite the Declarationed industrial-only prohibition - it even purports to pass some sort of RULE purporting to selectively grant some sort of grace for some but NOT ALL such COMMERCIAL activity.

( Prohibited auxilliary sorta non-industrial uses appear to be traffic-generators / parking congesters like churches, restaurant , school )

With the 2018-19 rollout of limited cannabis retailing, one owner or occupant ( Cannaco cannabis ) among other unspecified activity - starts selling cannabis commercially out of its units .

In June 2020 a NO CANNABIS SALE Rule expansion beats a Rule-requisition vote. Why would pot-selling generate a refusal ? ( Unarticulated - might have been that the trade widely had been CASH ONLY before technical licensing & even later. No debit cards etc / financial industry reluctant until clearly lawful. Insurers queasy. . . Whether bags of cash = holdups, crime etc ? . )

Anyway enforcement ensues and culminates in an arbitration award by retired ONCA Justice ( 2003-17 ) Robert Blair & the POT SALE IS ORDERED HALTED !

The unhappy pot-sellers here fail in attempt to override the arbitral decision. The bottom line issue at arbitration would have been : “Does POTSELLING factually violate this Rule-exemption from Bylaws’ wording ? Gate-keeping on appeal, the judge had no trouble deciding this would mean arbitrating facts & mixed Facts & Law .

Thus pot-sellers were narrowed to seek JUDICIAL LEAVE to appeal - but only on an alleged but rejected error in law – arbitrator Blair’s order.

Refused such leave they nevertheless get an extension by 10 weeks.

The arbitral award is otherwise intact / no error in law held.

Judge discusses default right to appeal arbitral decision with leave on questions of law where the Arbitral Agreement is silent as to pre-empting or widening such grounds for appeal. Here the Arbitral Agreement is cited silent as to such but the leave seeker fails to meet criteria to obtain leave to appeal.

More rope-a dope about standard of review : ( TEAL 2017 S.C.C. http://canlii.ca/t/h4f8v ). At least here there'll be something left for the losers to smoke albeit socially-distanced . . .

1852998 Ont Ltd v Halton C.C. # 227 2021 ONSC 21
issued Jan 4/21 http://canlii.ca/t/jcclz

Arbitration Act 1991 S.O. 1991 CH 17 http://canlii.ca/t/2sh

Remedies

Appeals

Appeal on question of law

45 (1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,

(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and

(b) determination of the question of law at issue will significantly affect the rights of the parties. 1991, c. 17, s. 45 (1).

Idem

(2) If the arbitration agreement so provides, a party may appeal an award to the court on a question of law. 1991, c. 17, s. 45 (2).

Appeal on question of fact or mixed fact and law

(3) If the arbitration agreement so provides, a party may appeal an award to the court on a question of fact or on a question of mixed fact and law. 1991, c. 17, s. 45 (3).

Powers of court

(4) The court may require the arbitral tribunal to explain any matter. 1991, c. 17, s. 45 (4).

Idem

(5) The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court’s opinion on the question of law, in the case of an appeal on a question of law, and give directions about the conduct of the arbitration. 1991, c. 17, s. 45 (5).

. . . . .

addendum : see also with cited discussion Justice Perell also upholds an Arbitration decision in TSCC # 2256 v Paluszkiewicz, 2018 ONSC 2329 https://canlii.ca/t/hrg2w
cafcor topic : cost bombshell/ alleged fraud /alterations https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18862&catid=9#18862
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