In Clark v. Unterschultz, 2020 ABQB 423, Madam Justice June M. Ross agreed to revisit her earlier decision in Clark v. Unterschultz, 2020 ABQB 338 which allowed an appeal in part, limited to the arbitrator having not provided adequate reasons for a lump sum award. In her follow up decision, Ross J. dismissed Applicant’s application under Alberta Rules of Court, Alta Reg 124/2010 as a “second kick at the can”, holding that any remedy Applicant may have lay with the Court of Appeal. Ross J. did agree to reframe her earlier order and, exercising her own options under the Arbitration Act, RSA 2000, c A-43, provided directions to the arbitrator. In doing so, Ross J. gave the arbitrator much broader scope than that which may have been read into her earlier decision and expressly confirmed his discretion to determine the procedure warranted to exercise that authority.
In her earlier decision, Ross J. acknowledged that she had options once she granted the appeal, including confirming, varying or setting aside the award. Having acknowledged those options, she elected to give directions and remit the Award.
“[143] I have concluded that the appropriate remedy is to remit the matter to the Arbitrator to provide adequate reasons for the lump sum support award, including the principles of compensatory support and factors considered in relation to these principles, as well as factors considered in awarding lump sum support. Given the Arbitrator’s familiarity with the evidence, and the discretionary nature of support awards, I have concluded that it is not appropriate to give directions or the court’s opinion on the question of law, beyond the requirement for reasons”.
See the earlier Arbitration Matters note on Ross J.’s earlier decision: “Communication of privileged offers after award but before clarification/costs insufficient to raise bias”.
In a follow up to that earlier decision, Ross J. ruled on an application under Rule 9.13 of the Alberta Rules of Court, Alta Reg 124/2010 seeking clarifications and additional reasons.
“Rule 9.13 At any time before a judgment or order is entered, the Court may
(a) vary the judgment or order, or
(b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it”.
Citing Lewis Estates Communities Inc. v. Brownlee LLP, 2013 ABQB 731 for the appropriate use of Rule 9.13, Ross J. further noted that Rule 9.3 provided her room to clarify her decision instead of correcting it.
“Rule 9.13 At any time before a judgment or order is entered, the Court may
(a) vary the judgment or order, or
(b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it”.
In its follow up application, Applicant sought clarification as to whether or not Ross J. had granted leave to appeal on a question of law under specific issues and, if not, why not. At paras 7-12, Ross J. did provide clarifications by indicating paras of her earlier decision and agreed to issue a decision based on a draft submitted by Respondent.
Having provided clarifications, she drew the line, twice.
First, at para. 13 she declined to go further and exercise her discretion to vary her initial decision. “In my view, the Applicant in seeking reconsideration of these matters is seeking a “second kick at the can.” Any remedy the Applicant may have is with the Court of Appeal”.
Second, at para. 14 she declined Applicant’s request that she issue further reasons on another issue. “This is not a matter of something having been omitted from the Decision in error; the issues were expressly addressed and decided. In seeking further reasons, the Applicant has reargued, at some length, these issues argued on the original application. It is simply another form of a “second kick at the can.” If my reasons are inadequate, any remedy that the Applicant may have lies with the Court of Appeal”.
Despite refraining from making those two (2) changes sought by Applicant, Ross J. did agree to modify the remedy granted earlier by revisiting the provisions of the Arbitration Act, RSA 2000, c A-43 which allowed her to confirm, vary or set aside or remit an award to an arbitrator. See para. 142 of her earlier decision.
Examining her options, Ross J. agreed at para. 17 to provide directions to the arbitrator and direct that the arbitrator did have the authority to change the award from a lump sum to a different amount. In doing so, Ross J. effectively gave the arbitrator much broader scope than that which may have been read into her earlier decision.
“[18] I am not setting aside the lump sum award, but I am leaving it open to the Arbitrator to vary or even set aside the award, if he concludes that this is appropriate. The problem with the lack of reasons was that I could not determine whether the Arbitrator had considered the factors that he was required by law to consider: the conditions, means, needs and other circumstances of each spouse, and the exceptional nature of a lump sum award. The remedy is intended to ensure that the Arbitrator considers the matter with reference to those factors. In my view, it would unreasonably restrict the Arbitrator’s reconsideration to dictate that he must reach the same conclusion following proper consideration, as he reached following consideration that may have fallen short of legal requirements”. (bold in the original)
In addition, she left the procedure to the arbitrator to determine, avoiding imposing that the arbitrator hold a new hearing as doing so might impose “an unwarranted expense in the circumstances”.
urbitral note – First, the application did not invoke provisions of the Arbitration Act and sought independent source of jurisdiction under the Alberta Rules of Court, Alta Reg 124/2010. Ross J. agreed that the Alberta Rules of Court applied but did require consideration of the Arbitration Act at paras 16-17 to exercise that jurisdiction. The assistance of the courts, once engaged, is not freed altogether from the provisions of the Arbitration Act if issues arise in the orders or decisions stemming from that assistance.
Second, regarding Rule 9.13, see also Evans v. The Sports Corporation, 2011 ABQB 478 and Paniccia Estate v. Toal, 2012 ABQB 11, aff’d Paniccia Estate v. Toal, 2012 ABCA 397.
In Lewis Estates Communities v. Brownlee LLP para. 33, the court addressed the purpose and benefit of such a Rule which the court in Evans v. The Sports Corporation at para. 13 read to give it “extremely broad authority to do what I think is correct in these circumstances”.
“[33] It makes sense to apply R. 9.13 to correct the sorts of errors identified in [Evans v. The Sports Corporation, 2011 ABQB 478] and [Paniccia Estate v. Toal, 2012 ABQB 11]. Doing so not only averts an injustice but saves litigants the costs and delay of bringing an otherwise unnecessary appeal. R. 9.13 is not, however, a vehicle for seeking reconsideration of a judgment call such as the treatment of evidence or the finding of facts. An unsuccessful litigant’s remedy in such a case lies only in an appeal. And, because judgments need not and often will not specifically address every argument put before the Court, where a Court is invited to reconsider under R. 9.13 a matter that it has specifically addressed in its original judgment, the putative error ought be plain and manifest. Otherwise, R. 9.13 would quickly become a vehicle for litigants seeking second kicks at the can. This concern also explains why the test for the admission of fresh evidence on appeals is so high; the trial is designed to determine the facts”.