KWADRANS v KWADRANS , 2023 ABCA
STREKAF, HO AND FAGNAN JJA
1.9: Conflicts and inconsistencies with enactments
14.4: Right to appeal
The Parties, a divorcing couple, entered into an Arbitration Agreement. Pursuant to this Arbitration Agreement, the Parties were entitled to Appeal the Arbitration Award on questions of law, fact, or mixed fact and law.
The Parties received a written Arbitration Award on July 7, 2021, which Award was dated July 5, 2021. On August 5, 2021, the Appellant filed a Notice to Attend Family Docket Court in the existing Action that the Appellant had commenced prior to entering into the Arbitration Agreement seeking to Appeal the Arbitral Award. On August 30, 2021, the Parties appeared in Docket Court. The presiding Justice issued an Endorsement that the matter be brought in Civil Chambers by way of Originating Application to determine whether the Appeal was out of time. Ultimately, on December 9, 2021, the Parties appeared in Civil Chambers. The Chambers Judge found that the Appeal was not properly commenced as it was not commenced by way of Originating Application; an error that the Chambers Judge held that could not simply be cured under Rule 3.2 as it was not an improper form or technicality.
The Court of Appeal noted that, as the Arbitration Act, RSA 2000, c A-43 (the “Arbitration Act”), is silent on how to commence an Appeal, Rule 3.2(5) applies, and the Appeal must be made by way of Originating Application.
The Appellant further submitted that the Chambers Judge should have used the authority pursuant to Rule 1.5 to cure the Appellant’s noncompliance. The Court of Appeal dismissed this argument, as to cure the noncompliance under Rule 1.5 would have resulted in irreparable harm to the Respondent. Further, the Court of Appeal noted that the extension of a time period that the Court is prohibited from extending, such as the case with the Arbitration Act, is not an available remedy under Rule 1.5.
Accordingly, the Court of Appeal dismissed the Appeal.View CanLII Details