HomeFamily LawScope of Appeal for Arbitration Awards

Scope of Appeal for Arbitration Awards

Under the recent amendments to the Divorce Act, parties to a Divorce are obligated to try and resolve matters through a family dispute resolution process before going to court. One option for family dispute resolution is arbitration. An Arbitrator has the power to create legally binding decisions, and parties to an Arbitration can decide the scope of Appeal in their Arbitration Agreement. However, when the Arbitration Agreement does not specify the scope of appeal, it is limited by section 44(2) of the Arbitration Act, which specifies that individuals must receive permission from the court to appeal, and can only appeal a question of law (not a question of fact or one of mixed law and fact). Further, section 46(1) of the Act specifies that an appeal must be commenced within 30 days after receiving the award.

In the recent Alberta Queen’s Bench decision of  Mailer v Mailer, 2021 ABQB 423, the Arbitration Agreement was governed by section 44(2) of the Act since the parties did not agree to a broader scope of Appeal. The primary issue in Mailer was; can the 30-day deadline to apply for leave for appeal be extended? The answer, according to the Honourable Justice Lema, is no. Specifically, at paras 40 and 42, Justice Lema held, “The Arbitration Act does not provide for extensions of the s. 46 deadlines, whether directly or indirectly” …and “The Court has no power to extend the 30-day deadline for seeking leave to appeal”.

The second issue to be dealt with in Mailer was whether the questions the applicant was seeking to appeal were questions of law. In response to this issue, Justice Lema was clear that issues of: Matrimonial Property division, entitlement to spousal support, and determination of guideline income for the purposes of support are questions of mixed fact and law, and are therefore beyond the limited scope of appeal permitted under section 44(2) of the Act (Citing Clark v Unterschultz, 2020 ABQB 338 at para 52).

This decision underscores the importance of turning your mind to the grounds of appeal when you enter into an Arbitration Agreement. If you do not contemplate what can and cannot be appealed, you run the risk of limiting your ability to appeal as a result of the narrow scope of appeal in the Arbitration Act. The experienced Family Lawyers at Vogel LLP can ensure that your Arbitration Agreement reflects your intentions and protects your ability to appeal.

2021-06-22T14:08:00+00:00June 17, 2021|Family Law|
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