Appeal Rights Continue To Be Very Limited For Arbitration Awards

• Published date: 09 June 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Borden Ladner Gervais LLP
• Author: Ms Matti Lemmens and Karlee Squires

In the recent decision of Pilgrim v True-Line Contracting Ltd, 2023 ABCA 126, the Court of Appeal of Alberta reinforced that it will apply a high threshold to cases which were decided in arbitration and have already been appealed to the Court of King's Bench.

In 2020, the Court of Appeal stated it "will apply a higher threshold for permission to appeal a second time than it would for a first" and its decision in Pilgrim has demonstrated adherence to this principle.

Background

The parties became involved in a dispute over a construction project and the dispute was submitted to arbitration.

The arbitrator set the deadline for the parties to provide statements by Dec. 1, 2021. The parties were warned that "failure to engage in these discussions may have an impact on your ability to seek remedies" and that failing to meet deadlines would have consequences. The applicants sought an extension of the deadline, which was then set for March 1, 2022. Despite the generous extension, the applicants missed the extended deadline to submit their statement.

On March 2, the respondent submitted an application seeking dismissal of the applicants' claim due to the applicants' failure to comply with deadlines, pursuant to section 27 of the Arbitration Act, RSA 2000, C A-43.

Section 27 of the Arbitration Act allows a tribunal to dismiss a claim if the commencing party does not submit a statement in accordance with the time period specified by the arbitrator, unless the party has a satisfactory explanation. Further, if a party fails to a appear or provide documentary evidence, the arbitrator may make an award on the evidence before them.

The arbitrator requested a response from the applicants on the application brought by the respondent and informed the applicants, that absent a response, he would decide the application on the information available to him. The applicants did not respond.

On March 29, 2022, the newly retained counsel for the applicants was informed that the arbitrator had already commenced writing the award for the section 27 application, but that submission could still be provided on behalf of the applicants. The arbitrator warned that depending on when the applicants' materials were received, the award may already be decided.

On April 4, 2022, the arbitrator issued the section 27 award against the applicants. The applicants' materials were received later that day, after the award had been issued. The applicants had made no submissions in response to the...