ESFAHANI v SAMIMI, 2022 ABKB 795
1.2: Purpose and intention of these rules
3.18: Notice to obtain record of proceedings
14.16: Filing the Appeal Record – standard appeals
14.18: Contents of Appeal Record – standard appeals
14.20: Contents of Appeal Record – appeals from tribunals
Upon the Parties’ marital breakdown, they had their child support and property division matters determined by way of an arbitration (the “Arbitration”). The Appellant sought to Appeal and set aside the Arbitrator’s matrimonial property award pursuant to Section 44 of the Arbitration Act, RSA 2000, c A-43 (the “Act”) (the “Arbitration Appeal”). Among the other issues considered by the Court, the Respondent took issue with the record relied on by the Appellant, specifically alleging that the Appellant had failed to produce the entire record of the Arbitration.
The Respondent argued that the Appellant had filed only excerpts of the Arbitration transcript but was obligated to provide the entire transcript and record that had been before the Arbitrator. The Respondent asserted that the Arbitration Appeal was a Judicial Review and was a case that involved an Application to set aside an arbitration award under Section 45 of the Act, and not an Appeal under Section 44 of the Act.
The Court determined that the Rules relating to records on Judicial Reviews do not necessarily apply to an arbitration Appeal. The Court noted that a Judge’s review of an arbitration decision on Appeal was distinct from a Judicial Review as understood and applied in administrative law.
The Court noted that although neither the Act nor the Rules expressly set out what an Appeal record must contain or what should be put before the Court in an arbitration Appeal, an arbitration Appeal is not a trial de novo and should be considered on the same basis as an Appeal from the Court of King’s Bench to the Court of Appeal.
The Court found that: (1) some of the Rules governing an Appeal to the Court of Appeal pursuant to Part 14 of the Rules may provide guidance, but do not directly apply to Court of King’s Bench arbitration Appeals; and (2) the strict application of Court of Appeal type procedures to an arbitration Appeal may create unnecessary procedural formalities not helpful to an arbitration Appeal. The Court ultimately noted that it maintained the discretion and flexibility to deal with a variety of arbitration processes on Appeals before it.
The Court determined that where a transcript of an arbitration proceeding exists or where documents in the nature of the “Pleadings” or “Final Documents” exist, similar to those described in Rule 14.16, 14.18(1)(b) and (c), and 14.20(a), they should be provided to the Court. The Court additionally noted that where an arbitration agreement provides that this is the contractual responsibility of the arbitrator to prepare, the arbitrator is not required to prepare the record in the same way as an administrative tribunal is pursuant to Rule 3.18.
The Court additionally set out that not all evidence before the arbitration tribunal must be provided to the Court on an arbitration Appeal. Specifically, the Court noted that only evidence that is “necessary to resolve the issues on the appeal” should be included with the exclusion of “any evidence, exhibits and other materials unlikely to be needed”. The Court further noted that a “wholesale data dump” of everything filed in an arbitration proceeding is inappropriate and inconsistent with Rule 1.2. The Court also set out that Parties may seek Court direction pursuant to Part 4, Division 2 of the Rules, to ensure the efficient use of Court resources.
The Court found in the circumstances that the several volumes of Affidavit materials and ultimately the full transcript provided to the Court, did not amount to a deficiency in the record. The Court ultimately focused its review on the portions of the record that were referred to in argument or were necessary to resolve the issues on the Arbitration Appeal.View CanLII Details