14.37: Single appeal judges

Case Summary

The parties in family litigation proceedings had agreed to arbitrate select issues in a binding arbitration agreement (the “Arbitration Agreement”). After the arbitration, the Applicant applied to challenge the Arbitrator’s decision (the “Arbitration Award”).

The Court first determined that the Arbitration Agreement required the challenging party to seek leave to appeal a question of law. The Arbitration Act, RSA 2000, c A-43 (the “Act”) in section 44(2) requires leave of the Court for a party to appeal an arbitration award on a question of law. The Arbitration Agreement stated that the parties “agree that the decision of the Arbitrator shall be subject to an appeal only on questions of law in accordance with s 44(2) of the Act.”

The Court then determined that the Applicant failed to meet the deadline to apply for leave to appeal. The Act in section 46(1) required the Applicant to apply for permission to appeal within 30 days of receiving the Arbitration Award. However, the Applicant filed a Notice of Appeal instead of an Application for leave to appeal. Justice Lema thus determined that it was too late for the Applicant to apply for leave to appeal.

The Court then considered whether the Act allowed the 30-day deadline to apply for leave to appeal to be extended. The Applicant relied on Rule 14.37, which allows the Court to extend the time to appeal. The Respondent argued that the Rules do not allow a statutory deadline such as section 46(1) of the Act to be extended. Justice Lema agreed and held that the Act does not provide for extension of the section 46 deadline directly or indirectly by incorporating the extension powers in the Rules.

Regardless, the Court determined that the expiry of the deadline to seek leave to appeal likely was of no practical consequence. The Court determined that there were likely no questions of law on appeal. Since the Arbitration Agreement only allowed appeals on questions of law, the Appeal was likely bound to fail.

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