Background

This highly litigious couple, Dr. Ojo and Ms. Mason, were married for nine years and have two teenage children together. They have been in and out of court since their separation in 2000.

The couple finally obtained a divorce in 2008 and agreed to proceed by way of mediation/arbitration on all corollary issues. They were able to resolve the issues related to parenting through mediation, but had to proceed to arbitration of the property and spousal support matters.
During the arbitration process the husband, who stated he had already spent $1 million in legal fees, decided to represent himself; the wife continued to retain counsel.

In the arbitration the husband, who operates several dialysis clinics in Puerto Rico and the Caribbean, was apparently less than forthcoming about the income from this business, and he failed to lead adequate evidence on a number of contentious points, such as his assets, debts, and ability to work in Canada. The arbitrator found him at times to be deliberately misleading and not credible, and therefore made several negative inferences against him. He decided many, but not all, issues in the wife's favour. The arbitrator ordered the husband to pay $10,000 a month in spousal support, over $100,000 in retroactive support payments, and an equalization payment of about $157,000.

This case concerns the husband's appeal of the arbitrator's decision. He argues that the arbitrator made errors of fact, that he incorrectly applied the law to the facts, that he made procedural errors such as failing to give adequate reasons to support his decisions, and that in making negative inferences against him, the arbitrator demonstrated bias toward the wife. Specifically, the husband alleges the arbitrator failed to take into account the power balance between himself and his wife as a result of his being self-represented.

Decision

On the appeal, Kruzick J. finds that on questions of fact, and questions of mixed fact and law, the arbitrator's decision should not be overturned absent a misapprehension of facts that resulted in a palpable and overriding error. Kruzick J. does not find that the arbitrator committed any such error, nor does he agree that there were any procedural difficulties. The husband's appeal is dismissed.

As Justice Kruzick makes clear in his decision, where a party does not comply with disclosure orders, or fails to provide evidence that he alone possesses, adverse inferences can be drawn against him. The husband took certain positions with regards to his income, debts, and assets, but was unable, or chose not, to support these with adequate evidence. It was therefore within the arbitrator's discretion to make inferences against the husband, and to fashion his order accordingly.

At its heart, this appeal was an attempt on the husband's part to have a new determination of the issues with more favorable results. While he does not achieve his goal, he does succeed in wasting substantial court resources, and adding to his own and his ex-wife's legal fees.

Two important lessons come out of this case. The first is that even binding arbitration will not be seen as "binding" by some determined litigants. For those litigants, arbitration becomes a pointless exercise that only increases the delay and costs incurred before a judge makes a final determination.

Second, litigants such as Dr. Ojo should not think they can choose to represent themselves, fail to adequately argue their case, and then later attempt to turn that failure, and their own self-representation, into a reason to appeal. The husband here may have been able to support some of his claims, had a lawyer assisted him in doing so, or had he brought the necessary evidence. He did not, and as Kruzick J. makes clear, he cannot now use that as a reason to have the decision overturned.