Alberta – Arbitration Act does not incorporate court’s powers in Rules of Court to extend delays – #489

In Mailer v. Mailer, 2021 ABQB 423, Mr. Justice Michael J. Lema confirmed he had no authority to extend the delay in which to file an application for leave to appeal an arbitration award, noting that the “Arbitration Act [RSA 2000, c A-43] does not provide for extensions of the s. 46 deadlines, whether directly or indirectly e.g. by incorporating the extension powers in the [Alberta Rules of Court, Alta Reg 124/2010]”.  The party seeking to challenge the award had filed an appeal as of right within the thirty (30) day delay but did not seek leave within that delay. The parties had agreed that their award “shall be subject to an appeal only on question of law in accordance with s. 44(2) of the Arbitration Act” and Lema J. held that their addition of the phrase “in accordance with s. 44(2)” changed the meaning of the first eleven (11) words, imposing a leave requirement.  Though the party appealed in the relevant delay, he failed to comply with the requirements of section 44(2) to seek leave and Lema J. lacked authority to remedy that procedural decision.

Ms. J and Mr. L agreed to arbitrate certain issues raised in their family law litigation and, in their agreement to arbitrate provided the following:

11.1  The decision of the Arbitrator on the issues submitted shall be final and binding on the parties …. The parties agree that the decision of the Arbitrator shall be subject to an appeal only on question of law in accordance with s. 44(2) of the [Arbitration Act, RSA 2000, c A-43]  …

11.3  If one party seeks leave to appeal or to set aside the Award, the Arbitration Award shall be forthwith entered as a judgment of the Court.  …

11.5  The parties further expressly acknowledge that the ultimate determination of the issues will include questions of mixed fact and law and involve the discretion of the Arbitrator”.

Following the hearing, an award issued on March 1, 2021 (“Award”).  Mr. L filed a notice of appeal of the Award on March 31, 2021.  Ms. J resisted Mr. L’s attempt to appeal the Award.  Given Ms. J’s and Mr. L’s respective responses to the Award, in his reasons Lema J. referred to Mr. L as the “challenger” and to Ms. J as the “supporter”.

Ms. J did not dispute the date on which Mr. L filed his notice of appeal but stated that Mr. L “skipped the leave step” and was therefore too late to file an application for leave to appeal outside the legislated thirty (30) day delay to do so.  Mr. L acknowledged that he needed leave and was now out of time to do so but applied to have Lema J. extend that thirty (30) day delay.

Applicable provisions – Lema J. identified sections 44 and 46 of the Arbitration Act as relevant to deciding the matter before him.

44(1)  If the arbitration agreement so provides, a party may appeal an award to the court on a question of law, on a question of fact or on a question of mixed law and fact.

(2)  If the arbitration agreement does not provide that the parties may appeal an award to the court on a question of law, a party may, with the permission of the court, appeal an award to the court on a question of law”.

Lema J. then distinguished the recourses available under section 44(1) and 44(2).

[12] If they do not include any appeal right at all or if they include one not providing for a question-of-law appeal, then ss 44(2) fills the gap for that kind of appeal.  It says that, where the agreement does not provide for such an appeal, “a party may, with the permission of the court, appeal an award to the court on question of law.”

[13] In other words, as far as question-of-law appeals go, the parties either provide such a right for themselves in their agreement (permitted under ss 44(1)) or the Act supplies such a right for them (under ss 44(2))”.

Lema J. noted next that section 46 determined the delay in which a party had to commence an application invoking either of those provisions.

46(1) The following must be commenced within 30 days after the appellant or applicant receives the award, correction, explanation, change or statement of reasons on which the appeal or application is based:

(a) an appeal under section 44(1);

(b) an application for permission to appeal under section 44(2)”.

As appears from the above provisions, where arbitration parties agree on an appeal, the party appealing requires no leave of the court.  Lema J. remarked that section 44(1) asks a single question: “did the arbitration agreement provide such a right”?  If so, the party “can appeal straight off”.  Otherwise, section 44(2) imposes a “hurdle” to obtain permission to appeal and sets out the “tests to clear that hurdle” such as importance to the parties and significant affect their rights.

(i) Did the parties’ agreement to arbitrate authorize questions of law – At paras 19-26, Lema J. parsed the terms of the agreement to arbitrate to determine whether Mr. L and Ms. J. to determine whether they had provided for a right of appeal on a question of law.

[20] As noted, the parties “agree[d] that the decision of the Arbitrator shall be subject to an appeal only on question of law in accordance with s. 44(2) …. ”

[21] The first eleven bolded words of s 11.1 (“shall be … questions of law”) are clear.  If only those words had been used, the parties would plainly have built in a question-of-law appeal right and would have fit squarely within ss. 44(1), with no leave to appeal needed”.

Lema J. held that the addition of the phrase “in accordance with s. 44(2)” changed the meaning of the first eleven (11) words.  In listing his reasons at para. 23, as reproduced below, Lema J. provided drafting advice to those drafting their own agreements to arbitrate and seeking to include or exclude appeals on questions of law.

“- an appeal right “in accordance with ss. 44(2)” necessarily means an appeal subject to a leave requirement.  Otherwise the parties would have said “in accordance with ss. 44(1)”;

– the parties could have engaged ss. 44(2) simply by remaining silent on question-of-law appeals.  In that indirect fashion, they would have satisfied its opening condition (“If the arbitration agreement does not provide that the parties may appeal an award to the court on a question of law”).  But they decided to explicitly invoke ss. 44(2);

– ss 44(1) and (2) are binary: the parties either provide, or do not provide, a question-of-law appeal right.  We start by asking whether the parties, by agreement, created an unconditional question-of-law appeal right.  If they did, a party perceiving a question-of-law error can launch an appeal via that clear pathway.  If they did not create an unconditional right to appeal such questions, by definition, they fall into ss. 44(2), where question-of-law appeals are possible but only with leave;

– what else can the parties have intended by their express reference to ss. 44(2) and the limitation of an appeal “in accordance with” that provision?  Instead of a clear pathway to an appeal, they obviously preferred to impose a leave hurdle; and

– this view is clinched by the follow-up wording of s. 11.3 of the agreement: “If one party seeks leave to appeal or to set aside the award ….”  The bolded wording only makes sense if s. 11.1 imposes a leave hurdle.  Nothing else in the agreement would or could give rise to a “leave to appeal” requirement”.

(ii) statutory time period in which to seek leave – At paras 27-42, Lema J. then examined whether he could grant Mr. L’s request to extend the time in which to file an application for leave to appeal.  Lema J. reviewed section 46(1) and the applicable case law and concluded that he could not extend the delay established by legislation.  See Funk v. Funk, 2018 ABCA 210 para. 43, Legacy Inc. v Red Deer (City), 2018 ABCA 393 footnote 59, Allen v. Renouf, 2019 ABCA 250 paras 6-7 and Masterpiece Cabinetry & Finishing Ltd. v. Risi, 2001 ABQB 118 paras 16-20.

Lema J. closed his review of the cases, concluding that the “Arbitration Act does not provide for extensions of the s. 46 deadlines, whether directly or indirectly e.g. by incorporating the extension powers in the Rules of Court”.

No question of law – At paras 43-57 Lema J. offered his analysis on whether any of the proposed questions qualified as a question of law and, on the facts, determined that “none of the issues identified by the challenger here raise “questions of law””.

urbitral notes – First, Lema J. addressed his jurisdiction to extend a delay set by legislation.  That analysis is not the same as the delays set out in court rules.  The latter typically allow the courts some discretion to extend their ‘own’ delays and case law on doing just that is not applicable to extending legislated delays such as those referred to in the cases cited by Lema J.  The Alberta Court of Appeal in Funk v. Funk, 2018 ABCA 210 noted and applied the limitation inherent in its Alberta Rules of Court, Alta Reg 124/2010 which provided the courts no authority to extend legislated deadlines.

[43] Third, even if the applicant could appeal the December 1, 2017 Judgment, there is still the Arbitral Award, which the applicant appealed after the expiry of the appeal period. He is seeking an extension of time to appeal, but is unlikely to be successful in obtaining one. The Arbitration Act, RSA 2000, c A-43, does not provide for extending time. Even claiming fraud as a basis to set aside an award requires the application be commenced within 30 days after the fraud was discovered: Arbitration Act section 46(2). The Rules of Court do not permit a court to extend statutory appeal periods: B.W. v G.R., 1989 ABCA 205”.

Second, regarding the two (2) Alberta Court of Appeal decisions relied on by Lema J. to determine his lack of authority to extend the delays in section 46 of the Arbitration Act, see:

(i) “Alberta – court has no jurisdiction to extend statutory time limit in which to seek leave to appeal award – #205” regarding Allen v. Renouf, 2019 ABCA 250.  The Court of Appeal upheld a chambers judge’s decision to dismiss an application for leave to appeal on the basis that the court had no jurisdiction to extend a statutory time limit set out in the Arbitration Act, RSA 2000, c A-43.  The arbitrator’s reserve of jurisdiction to issue a costs award did not suspend or add to that time period to challenge the earlier award on the merits.  Case law also distinguishes calculating delays based on the ‘date of the decision’ and the ‘making of the decision’ and should apply with equal merit to delays applicable to arbitration awards.

(ii) “Alberta – Court of Appeal acknowledges lack of authority to extend time to appeal – #083” regarding Funk v. Funk, 2018 ABCA 210. The Court of Appeal dismissed an application to extend the time to appeal an arbitration award because the appeal had no reasonable chance of success. The Court held, among other things, that it did not have authority to extend the time period to appeal set out in the Arbitration Act, RSA 2000, c A-43 and that any remedy to challenge the award ought to be heard by arbitration as the parties had agreed.

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