In Carrigan v Withers, 2026 ABCA 58, the Court denied an application for a stay of arbitration and enforcement proceedings pending an appeal on the ground that it did not have the legislative authority to do so. The application raised issues of irregularities in the formation of the arbitration agreement. Of significance to this case summary, the applicant named the arbitrator as well as the opposite party in the arbitration as respondents.
Underlying arbitration and previous applications before the ABKB – The arbitration arose from a dispute between two property co-owners (Mr. Carignan and Ms. Bosse) relating to the listing and sale of the property. They entered into an arbitration agreement to resolve their dispute and proceeded with arbitration proceedings before the arbitrator.
The applicant Mr. Carignan became dissatisfied with the arbitration proceedings and filed various court applications challenging the arbitrator’s directives and awards and jurisdiction. In various earlier decisions, the Court of King’s Bench confirmed the awards as enforceable and the arbitrator’s jurisdiction. Notably, the Court ordered in January 2024 that Mr. Carignan was required to obtain leave of the court or written consent of the parties to file any further applications relating to the arbitration.
New application before the ABKB challenging the arbitrator’s jurisdiction – In October 2025, Mr. Carignan filed a new originating application challenging the arbitrator’s jurisdiction on the basis of irregularities in the formation of the arbitration agreement. The application named both the arbitrator and Ms. Bosse as respondents. Mr. Carignan did not apply for leave of the court before filing the application.
The arbitrator applied to set aside the application, in part based on Mr. Carignan’s failure to seek or obtain leave before filing his application. Mr. Carrigan brought a cross-application for retroactive leave to file the application. The Court of King’s Bench found that Mr. Carignan had not explained his failure to seek leave, nor established that leave should be granted. The Court set aside the originating application and dismissed Mr. Carrigan’s application for leave.
The appeal – Mr. Carignan appealed from court decision and sought a stay of all arbitration and enforcement proceedings pending his appeal, pursuant to Rule 14.48(b) of the Alberta Rules of Court, Alta Reg 124/2010. It permits a party to apply to a single appeal judge to seek a stay of proceedings or enforcement of a decision pending appeal. Ms. Bosse applied for an order requiring Mr. Carignan to post security for costs in relation the applications. The Court denied the application for a stay and granted the application for security for costs.
This case note discusses the arbitrator’s preliminary question as to whether the Court had jurisdiction to stay arbitral proceedings pending an appeal. The Court found that Rule 14.48(b) did not confer jurisdiction on the Court to stay arbitration proceedings as it contemplated only a stay of a decision made by a judge, not an arbitral tribunal. In any event, the Court found that there was “nothing to stay”, as the decision below had merely set aside Mr. Carignan’s application challenging the arbitrator’s jurisdiction.
The Court granted Ms. Bosse’s application for security for costs on the ground that Mr. Carignan had failed to pay multiple court orders owed to her and that he acknowledged owing costs and not having sufficient liquid funds to pay them. The Court however declined to award costs to the arbitrator, who also sought costs of the stay application.
Commentary:
This is a rare case from a common law province in which the arbitrator is a party to court proceedings seeking to challenge their jurisdiction or arbitral awards.
The practice of naming arbitrators as respondents or as impleaded persons (“mise en cause”) is more common in Québec, where parties seeking to challenge an arbitrator’s jurisdiction or annul arbitral awards often (but not always) involve the arbitrators in the proceedings.
In this case, the arbitrator was added as a respondent by a self-represented applicant in an application that contravened a court-mandated requirement that leave be obtained before bringing further court proceedings. The arbitrator participated in the Court proceedings by successfully raising an argument on the merits of the stay application (para. 19) that the Court accepted.
The Court however declined to award costs to the arbitrator. This is a similar result to the Alberta Court of King’s bench decision in Uhuegbulem v Balbi, 2025 ABKB 318, covered in Arbitration Matters #913 Alberta – No costs to arbitrator sued for alleged bias, a case where an arbitrator was sued by a plaintiff for alleged bias. In that case, however, the Court expressed some disapproval of the arbitrator’s conduct in the proceedings. Here, the arbitrator was faced with a party seeking to derail the arbitral process and who named her as a defendant in judicial proceedings. She incurred the cost of retaining counsel, made helpful submissions before the Court, and was successful in the argument she advanced. Nonetheless, she was denied costs. Unfortunately, the Court did not provide reasons. The decision not to award costs to the arbitrator in circumstances where the Court otherwise found that costs were warranted for the other respondent seems harsh.