Alberta’s Court of Appeal in Allen v. Renouf, 2019 ABCA 250 upheld a chambers judge’s decision to dismiss an application for leave to appeal on the basis that the court had no jurisdiction to extend a statutory time limit set out in the Arbitration Act, RSA 2000, c A-43. The arbitrator’s reserve of jurisdiction to issue a costs award did not suspend or add to that time period to challenge the earlier award on the merits. Case law also distinguishes calculating delays based on the ‘date of the decision’ and the ‘making of the decision’ and should apply with equal merit to delays applicable to arbitration awards.
The parties were involved in a mediation/arbitration to resolve disputes related to division of matrimonial property. After mediation failed, the parties undertook arbitration in October and November 2016. The “main” arbitration award issued May 1, 2017 (“Award”), followed by other “numerous” awards and a costs ward on February 15, 2018. Appellant sought leave on March 16, 2018 to appeal the Award, other awards and the costs award.
Respondent applied for dismissal of the application in regard to the Award and the non-costs awards because it was filed outside the statutory 30 day time list set by section 46(1). That section stipulates that, among other applications, an application for leave to appeal “must be commenced within 30 days after the appellant or applicant receives the award, correction, explanation, change or statement of reasons on which the appeal or application is based”. Appellant replied, arguing that the time limit only started to run from the last award on costs.
In a non-reported decision, the chambers judge dismissed the leave to appeal application. Appellant appealed that decision to the Court of Appeal but was unsuccessful.
The Court of Appeal reinforced earlier decisions, relied on by the chambers judge, which held that an arbitrator’s post-award issuance of a costs award did not suspend the time under section 46(1) the Arbitration Act to appeal or to seek leave to appeal. It held that the “time to appeal runs from the date of pronouncement on the merits or, in other words, from the date the decision is made”.
The Court of Appeal held that the chambers judge was correct when deciding that none of the provisions in the Arbitration Act or the Alberta Rules of Court, Alta Reg 124/2010, or other juridical basis, conferred jurisdiction to extend the statutory time limit. The Court referred to Funk v. Funk, 2018 ABCA 210 para. 43 and BW v. GR, 1989 ABCA 205, 68 Alta LR (2d) 377 para. 11 which noted the lack of jurisdiction to extend delays set out in statutes.
Section 46(1) expressly states that the 30 day period commences from when the party “receives the award”. In providing such wording, the legislation acknowledges that the ‘date’ of the award is not determinative but, rather, the date on which the party ‘receives’ it. For similar wording in other domestic arbitration legislation, see section 47(1) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 and New Brunswick’s Arbitration Act, RSNB 2014, c 100.
urbitral note – For calculating the date from which such appeal application periods must be calculated when the legislation omits to specify ‘receives’, see the distinction made by the Federal Court of Appeal between ‘date of the decision’ and the date the decision was ‘made’ in Videotron Ltée. v. Netstar Communications Inc., 2003 FCA 56.
Mr. Justice Nadon J.A. had to determine when to start the calculation of a 60 day period triggered by the “making of the order” as stated in the Broadcasting Act, SC 1991, c 11.
On November 22, 2002, the Federal Court of Appeal had granted Applicants, pursuant to subsection 31(2) of the Broadcasting Act, leave to appeal decisions made August 29, 2002 by the Canadian Radio-Television and Telecommunications Commission. Applicants were notified by the Federal Court’s Registry on November 26, 2002 and the Order was recorded on that day. When Applicants attempted to file their Notice of Appeal on January 22, 2003, the Registry advised them that it could not be accepted, since they were outside the period prescribed by subsection 31(3) of the Broadcasting Act. Applicants applied for an order granting them leave to file their Notice of Appeal. That application was granted.
Nadon J.A. agreed that a court did not have authority under the Broadcasting Act to extend a statutory delay. Its authority was limited to applicable court rules of procedure to extend delays in rules of procedure.
No one disputed the court’s authority to extend a delay under its own applicable rules of court once an application was properly instituted. Once an application was instituted, court rules applied and the court could extend a date for the performance of a step set out in those court rules. In the case before Nadon J.A., the issue was whether the application was properly instituted and subject to the court’s authority over delays.
The Broadcasting Act did not mention any jurisdiction of the court to extend the date. Respondent resisted the filing of the Notice of Appeal, arguing that it was irregular, having been filed more than sixty days after the date of the order. Applicant argued that the notice of appeal was timely because it was filed within 60 days of receipt of the order.
Nadon J.A. agreed with Applicants. He referred to Re Hache and Minister of Municipal Affairs, 1968 734 (NBCA), 2 D.L.R. (3d) 186, and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and The Board of Industrial Relations, 1974 ALTASCAD 77,  2 W.W.R. 470.
“ I am satisfied, on the basis of the above cases, that the words “the making of the order” cannot possibly mean the date on which the order was signed by a judge. As the present matter clearly shows, many days may go by between the time the order is signed and the moment when it is entered or recorded by the Registry. Until such time as the order is recorded by the Registry, it cannot, in my view, be deemed to have “been made”. To hold otherwise might lead to an absurd result. If, for example, a statute provided that the delay to appeal was fifteen days from the making of the order, and the order signed by the judge was not sent to the Registry before seventeen days, the party’s right would have lapsed before it had even had occasion to become aware of the order.”
Commercial arbitration practitioners should examine the wording in the legislation applicable to their arbitrations to determine if the wording mentions ‘receipt of the award’, ‘date of the award’ or ‘making of the award’. Even if the legislation mentions ‘date’, the reasoning offered by Nadon J.A. remains compelling to allow the calculation to commence from receipt of the award. Most jurisdictions provide legislation for the calculation of delays for various judicial and administrative proceedings but may not speak specifically to or distinguish between the ‘date of the award’ and the ‘making of the award’ in commercial arbitrations.
The case law further distinguishes between decisions pronounced in the presence of parties and later issued in writing and those only issued later, out of the presence of the parties.