In Alvarez v Alvarez, 2021 ABQB 717, Justice Malik denied leave to appeal an arbitrator’s award on a question of law pursuant to section 44(2) of the Arbitration Act, RSA 2000, c. A-43. He found that no question of law was raised. However, the case raises issues concerning s. 44(1) of the Act, which allows a party to ask the tribunal to “correct typographical errors, errors of calculation and similar errors in the award” and s. 40, which permits a party to ask the tribunal to “explain any matter” in the award. The arbitrator issued an Award, and later at the request of the applicant, a Corrected Award, which included a “nominal correction”. It also addressed the applicant’s requests for correction, but made no changes to the Award. Before Justice Malik, the applicant argued (unsuccessfully) that the Award and Corrected Award contained errors of law. Justice Malik noted that the, “[a]rbitrator acknowledged that the Award was abbreviated to save time and costs, that just because he had not set out every fact or argument did not mean he had not considered them, and that a party could request additional reasons should they wish to pay the additional cost.” The applicant argued on the application for leave to appeal that the arbitrator had not explained his Award sufficiently. The decision does not indicate whether the parties requested an abbreviated award to save time and costs. The Award was issued 8 months after the close of hearings.
In October, 2019, the parties entered into a Mediation/Arbitration Agreement to resolve their various disputes relating to the breakdown of their relationship (spousal support and division of matrimonial property). The parties were unable to reach agreement at mediation and the arbitration hearing occurred during several days in February, 2020. The arbitrator released his Award on October 5, 2020. The Award stipulated that any party could request “corrections, clarifications or additional reasons” within 30 days. On October 27, 2020, the applicant’s lawyer requested that the arbitrator make corrections and clarifications and, on November 2, 2020, provided detailed information and documents to the arbitrator to support the request.
On November 19, 2020, the arbitrator issued a Corrected Award, which included a “nominal correction” and responses to the applicant’s requests but no adjustments to the Award. The arbitrator noted that the “corrections” were “meant to deal with typographical errors of calculation, and similar errors in the Award or to amend the Award to correct an injustice based on an oversight on my part” and should not be “new or repeat arguments or a chance to present new evidence”.
Justice Malik considered two preliminary issues on the application for leave to appeal.
The first was whether the application was brought within the 30-day period set out in s. 46 of the Act. Justice Malik found that that the 30-day period started when the applicant received the Corrected Award. The applicant e-filed his application to for leave to appeal on December 10, 2020, and provided a copy to the arbitrator and respondent that day, but because of court “filing delays” the application was not formally filed by the court until January 11, 2021. Although he found that he could not extend the time for filing the application for leave to appeal, he found that the applicant had complied with the requirement by e-filing the application on time; the court’s filing delays were not his fault and could not be attributed to him.
The second was whether the leave application was barred by section 44(3) of the Act, which provides that a party may not appeal an award on a question of law that was “expressly referred to the arbitral tribunal for decision”. Justice Malik found that the leave application was not barred on this ground. The questions to be determined by the arbitrator were broadly framed as spousal support and division of family property. He found that s. 44(3), “should be read narrowly” and he disagreed that “the specific questions which the Applicant seeks permission to appeal were identified as discrete legal issues and expressly referred to the Arbitrator for determination.”
On the issue of whether leave to appeal should be granted, Justice Malik found that the applicant failed to meet the test for leave because the proposed appeal was not limited to questions of law, which are, “what the correct legal test and principles are”. He stated further, at paragraph 23, that “[c]ourts must distinguish the legal question from its application to a particular factual matrix because it is the unique facts of a given case, rather than the strict application of a legal standard (particularly where a decision maker has significant discretion), that determines the outcome:
Courts should, however, exercise caution in identifying extricable questions of law because mixed questions, by definition, involve aspects of law…Courts must be vigilant in distinguishing between a party alleging that a legal test may have been altered in the course of its application (an extricable question of law…), and a party alleging that a legal test, which was unaltered, should have, when applied, resulted in a different outcome (a mixed question) (Teal Cedar Products Ltd v British Columbia, 2017 SCC 32 (CanLII), 2017 1 SCR 688 at para 45).”
Justice Malik found that none of the issues raised by the applicant showed that the arbitrator misunderstood the applicable legislation, the relevant case law, or that he otherwise misapplied the law. The arbitrator’s determination of the division of matrimonial property was an exercise of his discretion with respect to questions of mixed facts and law. Further, the applicant’s argument that it was not clear if the arbitrator was “alive to [an] issue” relating to spousal support, was not borne out by a review of the Award and Corrected Award, both of which dealt with the issue and explained why the issue did not arise on the facts of the case. This too was a question of mixed fact and law which required the arbitrator to exercise discretion to render a decision based upon the totality of the parties’ circumstances.
In dismissing the application for leave to appeal, Justice Malik made two additional points:
“ First, it is the Applicant’s view that the Arbitrator failed to explain the Award, or at least the Arbitrator’s reasoning process, in sufficient detail. However, the Arbitrator acknowledged that the Award was abbreviated to save time and costs, that just because he had not set out every fact or argument did not mean he had not considered them, and that a party could request additional reasons should they wish to pay the additional cost (paras 49-53 of the Award).
 Second, it is clear that the Applicant disagrees with the Award. But that does not mean that the disagreement is in respect of a question of law that would justify this court granting permission to appeal the Award.”
The decision provides no insight on whether the parties sought an “abbreviated” award to save time and costs.
First, s. 43 of the Alberta Act (and the domestic Acts of other provinces) provides that an arbitral tribunal may, on its own initiative or at any party’s request, “correct typographical errors, errors of calculation and similar errors in the award” or “amend the award so as to correct an injustice caused by an oversight on the part of the arbitral tribunal”.
The Annotated Arbitration Act, 1991 (Carswell, 2016) by Alexander Gay and Alexandre Kaufman explains the different between these two potential changes to the award in the comparable provisions of the Ontario Act:
“Section 44(1)(a) deals with errors in the expression of a thought by the arbitral tribunal and not errors of thought… Typographical errors, errors of calculation and similar errors in the award are all errors that relate to errors in the expression of thought. In contract, s. 44(1)(b) uses the word “oversight”, which means an error in thought in the award from what was intended. The oversight may not be corrected unless it gives rise to an injustice in the award. The section can probably be relied upon to provide additional reasons to support the conclusions reached by the arbitral tribunal.”
Second, s. 40 provides that “a party may, within 30 days after receiving a copy of the award, request in writing, that the arbitral tribunal provide a further explanation of the reasons on which the award is based.”
Alexander Gay and Alexandre Kaufman explain the meaning of this provision in the Ontario Act as follows:
“When reasons are provided, they need not be lengthy nor necessarily eloquent…They need not refer to all aspects of the evidence or every point raised in the case. The reasons must be sufficient to enable a reviewing court to know whether the applicable legal principles and evidence were properly considered… The words “explain any matter” suggest that s. 40(1) and the requirement to provide an explanation applies to any issue found in the award. A reviewing court may consider clarification issued pursuant to a request under s.40 in determining the reasonableness or correctness of an award.”
For two recent Case Notes in which the court commented upon the dangers that parties may encounter when trying to shortcut the arbitration process to save costs, see Case Notes: B.C. – court qualifies parties’ agreement to require only summary reasons as “penny-wise and pound-foolish” – #381 and Manitoba – applicant for leave to appeal cannot revisit procedural decisions creating limited evidentiary record – #467.
Third, for recent Case Notes that discuss section 44(3) of the Act, which is unique to Alberta, and provides that a party may not appeal an award on a question of law that was “expressly referred to the arbitral tribunal for decision”, see Case Notes: Alberta – legislative rule “unique” to Alberta applied to refuse leave to appeal extricable question of law in multimillion dollar dispute – #058, Alberta – heavily-customized industry standard form contract ineligible for precedential value – #253, Alberta – costs are discretionary, not a discrete legal issue submitted to arbitrator, must be exercised judicially – #281, and Alberta – issue not “expressly” referred to arbitrator may not preclude appeal but still live enough to signal overlooked opportunity to plead – #429.