In a recent case released by the Alberta Court of Appeal, Justice O’Ferrall added some clarity to questions surrounding the continuing jurisdiction of the Arbitration Act, RSA 2000, c A-43 once the Court of Queen’s Bench has confirmed an Arbitration Award in the form of an Order of the Court.
In Anand v Anand, 2018 ABCA 259, the parties had attended for mediation/arbitration on a high conflict family law matter. While they were successful in resolving some issues during mediation, other issues proceeded to arbitration and were resolved by way of an Arbitration Award. Subsequent to the granting of the Award, the husband brought an appeal on portions of the arbitration award to the Court of Queen’s Bench. -he Husband also applied for a stay of certain portions of the Award, pending the hearing of the Appeal. The Wife brought an application, contemporaneous to the Husband’s, asking that the Award be confirmed as a Judgment of the Court of Queen’s Bench.
These applications were all heard on March 15, 2018 wherein the presiding Justice denied the Husband’s stay application and endorsed the Award in the form of several Orders. As a result of the Award being confirmed as a Judgment of the Court of Queen’s Bench, the Husband again tried to apply for a stay, but this time not of the Award, but of the Orders. This application was denied.
The Husband did not stop there though. While the Arbitration Act provides the right of appeal of an Award to the Court of Queen’s Bench, the Husband appears to have taken the view that as the Arbitration Award was now in the form of Orders of the Court of Queen’s Bench, the Arbitration Act would no longer govern and the right of Appeal would be in respect of the Orders, and to the Court of the Appeal. In effect, the Husband took the position that as the Court of Queen’s Bench granted Orders enforcing the Award, the Court of Queen’s Bench had no jurisdiction to hear an appeal of their own Orders. As a result, the Husband brought an Application to the Court of Appeal seeking leave to Appeal portions of the Arbitration Award, as captured by the Orders of the Court of Queen’s Bench.
In considering this Application from the Husband, the Justice O’Ferrall of the Court of Appeal found that the right of appeal of an arbitration award flows directly from the provisions of the Arbitration Act and that the Court of Appeal had no jurisdiction to hear an Appeal of the Arbitration Award. While Justice O’Ferrall considered a number of sections of the Arbitration Act that the Husband sought to rely upon, the decision does point to a void in the Arbitration Act that this decision appears to fill. More specifically, O’Ferrall, J. held that sections 44, 45, and 47 of the Arbitration Act clearly demonstrate that there is no jurisdiction at the Court of Appeal hear an appeal, which the Act itself mandates be heard by the Court of Queen’s Bench.
In fact, section 48 of the Arbitration Act specifically cites that an Appeal to the Court of Appeal may only follow a decision by the Court of Queen’s Bench made under section 44, 45, or 47.
O’Ferrall’s decision serves to fill a void left by the Arbitration Act. In particular, section 44(5) states that the Court of Queen’s Bench may, among other things “confirm, vary, or set aside the award…”. Pursuant to section 48 of the Act, the Court of Appeal does have jurisdiction to hear an appeal of any decision made by the Court of Queen’s Bench under section 44(5). In this case, the Court of Queen’s Bench did confirm the Arbitration Award. However, such confirmation of the Award was performed under the jurisdiction of section 49 of the Act, wherein the Court confirms the Award in the form of a Judgment for the purposes of enforcement.
The difference between section 49 and section 44 is that any confirmation of an Award under section 44 can only follow from an Appeal of the Arbitration Award to the Court of Queen’s Bench, whereas confirmation of an Award under section 49 can be granted from a standalone application for such a judgment. The judgment confirming the Award in this case was granted under section 49, not section 44. As such, O’Ferrall, J. held that section 48 was very clear in restricting appeals to only decisions of the Court of Queen’s Bench under sections 44, 45, and 47.
One might then ask what rights a party has once an Award is confirmed under section 49 – the logic of the Husband being that the Award was confirmed as a Judgment of the Court of Queen’s Bench, and no Court may hear an Appeal of its own decision. While O’Ferrall, J. does not explicitly address this question, one can infer that the confirmation of an Award in the form of a Judgment under section 49 does not serve to cancel the Award, rather that judgment of the Court of Queen’s Bench provides the parties with a mechanism to enforce the Award through the Court. As such, the Award still stands, and the parties would not be appealing the judgment confirming the Award, as the Husband in this case sought to do, they would instead be appealing the Award that is the foundation of the judgment. Presumably any appeal of an Award resulting in a decision to set aside that award under section 44(5) of the Act would also result in the vacating of the judgment confirming the award. If the Award that the judgment is based on is found to be flawed and therefore set aside, logic and natural justice would also dictate that the judgment flowing from that award can no longer remain in force.
Ultimately, Anand is an interesting and valuable decision as it serves to clarify the process of appealing arbitration awards, even in the face of a judgment confirming such an award, and further serves to limit a multiplicity of proceedings such as that which the Husband in that case had attempted to create.
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