1.9: Conflicts and inconsistencies with enactments
14.4: Right to appeal

Case Summary

This was an Appeal of a family law dispute that went to Arbitration. The Father appealed a Costs Award in Court, arguing that the Parties had agreed to the right of Appeal as set out in section 44(1) of the Arbitration Act, RSA 2000, c A-43 (the “Act”). The Mother filed a Cross-Application to strike the Father's Application, submitting that the Parties had agreed to the right of Appeal pursuant to section 44(2) of the Act, requiring leave of the Court. Moreover, the Mother argued, the Father failed to file his Application within the 30 day timeframe specified within the Act. The Chambers Judge granted the Mother's Cross-Application, striking the Father's Application and awarding the Mother $500 in Costs. The Parties were granted permission to Appeal on the question of whether the Court had jurisdiction to hear either or both Appeals. Relying on Schafer v Schafer, 2022 ABCA 358, the Court would grant permission to Appeal both Decisions, should it determine granting such a right was within its jurisdiction. 

Being a Statutory Court, the Court found that the Court of Appeal's jurisdiction was limited to Appeals provided for in legislation, and its jurisdiction to hear Appeals from a decision of a Court of King's Bench Judge is set out in Rule 14.4(1) of the Rules and section 3(b)(iv)(a) of the Judicature Act, RSA 2000, c J-2. The Court of Appeal noted that Rule 14.4 carves out Appeals where the legislature has “otherwise provided”. The Court of Appeal also noted that the language “[e]xcept as otherwise provided” has been interpreted to mean that any claimed right to Appeal under Rule 14.4 may be curtailed by another enactment. This is reinforced by Rule 1.9, which provides that an enactment prevails over the Rules to the extent of any inconsistency. Therefore, the right to Appeal under Rule 14.4 may be curtailed by any limitation to a right of Appeal within the Act, as legislative enactments supersede the generalized Rules.

The Court of Appeal concluded that the Father did have a right of Appeal under Rule 14.4. The Act did not expressly provide the Father with a right of Appeal, nor did it specifically restrict his right of Appeal. This case represented one of the few occasions where Parties were engaged in arbitral proceedings, yet the general right of Appeal was not displaced. In relation to the Father’s Application, the Court held that the Chambers Judge did not error in their interpretation of section 44 of the Act.

The Court of Appeal granted the Mother’s Appeal on the same basis as the Father’s. Nonetheless, the Court held that the Chambers Judge had a wide degree of discretion and considered proportionality when awarding Costs; therefore, the Court could find no reviewable error in the Chambers Judge’s Cost Award.

In conclusion, both Applications were dismissed, and Parties were to bear their own Costs.

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