DOW CHEMICAL CANADA ULC v NOVA CHEMICALS CORPORATION, 2023 ABCA 262
14.75: Disposing of appeals
14.37: Single appeal judges
This Application arose from a previous Decision by the Court of Appeal, granting permission to Appeal two specific points. The Appeal was scheduled for November 9, 2023. In the interim, the Appellant had brought this Application to stay the within Arbitration pending the outcome of the Appeal.
Justice Watson considered Rule 14.37(1) and Rule 14.75 to inquire whether he had jurisdiction to hear this Application and grant the requested remedy. Justice Watson acknowledged that he was currently considering this inquiry due to the lack of specific guidance in the Rules regarding the authority of a single Judge in the Court of Appeal to hear an Appeal of this nature. Upon reviewing Rule 14.37, Justice Watson determined that the only apparent authority for him to proceed with this type of Application as a single Judge is if it is deemed "incidental to an appeal". The Appellant argued that this matter was indeed incidental to an Appeal, as Rule 14.75 grants the Court of Appeal Panel itself the power to issue an injunction. If the Panel is able to grant an injunction based on the authority granted by the Rules, it could be argued that the Justice, as a single Judge, also possesses the incidental authority that upholds the majesty of that authority. Additionally, the Court acknowledged that the Rules hold statutory power, as outlined in the Judicature Act, RSA 2000, c J-2.
After careful consideration of the arguments presented by both parties, the Court determined that it is plausible that an interim measure taken during an Appeal could serve a protective or prophylactic purpose, thereby facilitating a more definitive resolution of the matter by the Appeal Panel at a later stage. Justice Watson ultimately concluded that he had the requisite jurisdiction to address the issue of the Stay of the Arbitration for the present purposes. Subsequently, the Court proceeded to evaluate the merits of the Application and ultimately granted a Stay of the Arbitration, albeit on a limited basis, by suspending the tribunal's timetable until the Appeal hearing had concluded.View CanLII Details