The Defendant applied for permission to appeal the Decision regarding the validity of an Arbitration Agreement between the parties (“Appeal #1”) and the Decision to not stay the Arbitration (“Appeal #2”). The Plaintiff applied for permission to appeal a Costs Order (“Appeal #3”).

Hawkes J.A. noted that Appeal #1 was filed late and held that an Application for late filing was required (the “Application for Late Filing”). Having found that there was a manifest intention to appeal within the time period, that the Defendant had not taken any benefit of the Decision under appeal in the interim, and that the Plaintiff would suffer no prejudice by reason of the extension, Hawkes J.A. concluded that the test regarding late filing had been satisfied and granted the Application for Late Filing.

However, having concluded that the issues raised regarding Appeal #1 did not meet the criteria for granting permission to Appeal, as the law was settled and the circumstances were unique to the parties, Hawkes J.A. denied leave to Appeal #1.

Citing Schafer v Schafer, 2023 ABCA 117, Hawkes J.A. held that no permission was required for Appeal #2. Specifically, pursuant to Rule 14.4(1), the Court of Appeal is a statutory Court which means it can only hear and decide Appeals provided for in Legislation. Rules 14.4 and 14.5 distinguish between Appeals as of right and Appeals where permission to Appeal must be obtained. Rule 14.4 carves out Appeals where the legislature has “otherwise provided”. 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. Applying that reasoning, the right of Appeal with permission in section 48 of the Arbitration Act prevails over the general Appeal provisions in the Rules.

Appeal #3 was denied by Hawkes J.A., who pointed out that the arguments for costs did not meet the threshold for granting permission to Appeal, as they were seen as attempts for error correction rather than raising significant legal questions.