The Plaintiff lost an arbitration and applied to the Court of Queen’s Bench to set aside the arbitral award. The Application was dismissed in full and leave to appeal the arbitration award was denied.

In the context of the Arbitration Act, RSA 2000, c A-43, there is an established line of authority that prevents an appeal to a higher Appellate Court from an intermediate Court’s refusal to grant leave to appeal an arbitrator’s award.

Despite this line of authority, the Plaintiff applied to the Court of Appeal for leave to reconsider Sherwin-Williams Company v Walls Alive (Edmonton) Ltd, 2003 ABCA 191, “which held that s. 48 of the Arbitration Act does not vest jurisdiction in this Court to hear an application for leave to appeal where the Court of Queen’s Bench has refused leave to appeal an arbitrator’s award under s. 44 of the Arbitration Act “. The Plaintiff also sought to appeal the Chamber Judge’s Order dismissing the Application and denying leave to appeal the arbitration award.

Rules 14.38 and 14.46 allow a party to apply before a Court of Appeal panel for leave to reconsider a previous Court Decision. The Court emphasized that this power is exercised cautiously in light of the following five factors: (a) the age of the decision, (b) whether the decision has been relied upon so as to create settled expectations, (c) the treatment of the issue by other appeal courts, (d) whether the decision has some “obvious, demonstrable flaw”, and (e) whether the decision was a memorandum of judgment delivered from the bench or a reserved, circulated one.

The Court analyzed each factor and held that there was no obvious, demonstrable flaw in Sherwin-Williams that would justify the Court to reconsider the decision.