What is perhaps not so straightforward is what recourse a party may have in the event it does not agree with the arbitral award rendered. At first glance this language would appear to preclude any right of appeal. But even with this restrictive language there is arguably some room for appeal to the courts. Whether or not a party can appeal is largely dependent on the basis for the appeal: in other words, is it on a question of law, fact, or mixed fact and law.
The distinction is important, because the Act permits an appeal an arbitral award on a question of law if the agreement is silent on that point - but only with leave of the court. On the other hand, if the agreement states the parties may appeal an arbitral award on the basis of a question of law, fact, or mixed fact and law, they can do so without seeking leave.
The Act provides as follows:. Seneviratne , ABQB Seneviratne that requires the grounds upon which an appeal of an arbitral award can be brought to be stated in the Arbitration Agreement. The court in Seneviratne held that this was not specific enough to permit a party to appeal without leave.
The court held that s. A broad reference to the appeal section, section 44, of the Act is insufficient to create a general right of appeal. That foundational principle is the concept of autonomy i. This principle is followed in several Alberta cases, such as Arnason v. Albert Ltd. Scanga , ABQB The takeaway from these cases and the specific wording of the Act is that parties entering into contracts and contemplating ADR as a process for dispute resolution should also turn their minds to the requisite language with respect to appeal rights of any arbitral award issued, in order to ensure that the wording is specific enough to reflect their wishes.
For example, the parties may expressly agree to have their disputes resolved by arbitration, but may nevertheless agree that the arbitral decision is subject to appeal to the courts on questions of law, on questions of fact, on questions of mixed law and fact, or all of these grounds.
Addressing this question may seem like a tall order at the outset of a contractual relationship, given that at that point no dispute has even occurred, let alone the issuance of an arbitration award and the contemplation of an appeal of one, but it will certainly do the parties well to deal with that at the outset, rather than receiving a nasty surprise about the limits of your arbitral appeal rights when that time comes.
This is a severely limited right of appeal, because construction disputes generally relate to questions of fact, or questions of mixed law and fact. Most construction disputes relate to issues of contract interpretation, which the courts consider to be questions of mixed law and fact.
This very limited scope of appeal is in keeping with the principle of autonomy referenced above. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
All Rights Reserved. A significant perceived value of an arbitration is that it provides an efficient, timely and cost-effective method of dispute resolution. As a general proposition, and subject always to the arbitration agreement between the parties, an arbitration is meant to be final and binding.
Both statutes allow for an appeal based on a question of law, fact, or mixed law and fact depending on the express terms of the arbitration agreement.
This produces inconsistent results. Despite not granting permission pursuant to section 44 3 , the Court nevertheless performed an analysis under section 44 2. It held that the court sets a very high standard for matters at stake in the arbitration that would justify an appeal. The decision of the arbitrator will be final and binding on the parties and subject only to judicial review or an appeal in accordance with the provisions of the Arbitration Act Saskatchewan.
Justice Currie noted that in order to grant leave to appeal, the test under section 45 2 must be met. In his award, the arbitrator did not refer to the prevention principle. As such, the Applicants submitted to the Court that had the arbitrator considered the prevention principle, he would not have ruled as he did. Currie J. After applying the test under section 45 2 of the Act , the Court found importance in the matters at stake in the arbitration and in the dollar value of the ruling.
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