ABCA decision is "one of few occasions" where right of appeal under Rules not displaced by arbitral proceedings

Hi Lisa,

The decision in Schafer v Schafer, 2023 ABCA 117 dealt with the circumstances in which the Court of Appeal may grant leave to appeal a chambers decision declining to hear appeal of an arbitral award.

The parties disagreed about whether their agreement to submit their family law dispute to arbitration provided for appeal pursuant to s. 44(1) or 44(2) of the Arbitration Act. Relying on s. 44(2), the father had appealed the arbitrator’s costs award without first seeking leave. The chambers judge dismissed his appeal, finding that the father was required to seek leave and the time for doing so had expired.

The Court held that it had jurisdiction to grant leave under the Rules of Court, on grounds that the father’s appeal of the chambers decision interpreting the Agreement to determine what rights of appeal the parties had agreed to was not a situation where the legislature had “otherwise provided” for a right of appeal under the Act. The case therefore “represents one of those few occasions where parties are engaged in arbitral proceedings and yet the general right of appeal in Rule 14.4 is not displaced” (para 39).

The Court emphasized, however, that its decision should not be taken to disturb the settled principle that a decision of an intermediate appellate court exercising its gatekeeping function is not appealable under section 48, nor that specific provisions in the Arbitration Act that provide for a restrict a right of appeal prevail over the general right of appeal in Rule 14.4.

I hope you find this of interest.
Linda