Rules for appealing an arbitration award

In Schafer v Schafer, 2023 ABKB 448, the court outlined the legal framework for granting leave to appeal and arbitration award.

The parties had entered into an agreement to arbitrate which allowed the parties to appeal the arbitration award pursuant to section 44 of of the Arbitration Act on questions of law only.

After arbitration, the father applied to King’s Bench to appeal the arbitration award alleging 22 errors in law. In particular, the father was seeking to appeal terms of the award which granted primary parenting and decision making to the mother, and allowed the mother to relocate with the child from Olds to Calgary.

In reaffirming past cases, Justice Devlin noted that where a party is applying to appeal and award the court should exercise a “meaningful gatekeeping function to enhance the finality of first-instance proceedings and to avoid the unnecessary and unproductive imposition of further expense.” Justice Devlin further commented that the court should not automatically grant leave on the bare assertion of a legal question.

In declining to permitted the father’s appeal, Justice Devlin considered the following points:

- The arbitrator had not exceeded her jurisdiction by awarding the mother final decision-making over all matters, even though in her closing arguments the mother changed the relief she was seeking

- The arbitration agreement gave the arbitrator broad jurisdiction regarding parenting and this encompassed the jurisdiction to make the order

- The award gave the father full consultative rights and resort to a court application in the event of an impasse with the mother

- The shifting procedures the arbitrator used to complete the matter in a timely fashion did not result in breaches of fairness amounting to an error in law

- The arbitrator gave detailed reasons in the award and through the reasons she gave demonstrated that the salient issues were intensely and exhaustively litigated

- Suggesting that the arbitrator was closed minded fell short of the requirements for showing bias and further a claim of bias should “be reserved for those cases in which they actually arise … and not be presented as catch-all expressions of litigatory disappointment”