In Kwadrans v Kwadrans, 2023 ABCA 203, the Alberta Court of Appeal considered the appeal of a chambers judge’s order that struck the appeal of an arbitration award in a family law dispute. The chambers judge held that the appellant, by filing a Notice to Attend Family Docket Court instead of an originating application, did not properly commence his appeal of the arbitral award within 30 days as required by the Alberta Arbitration Act, RSA 2000, c A-43 (“Arbitration Act”). The chambers judge issued an order striking the appeal. The Court of Appeal upheld the chambers judge’s finding and dismissed the appeal. Kwadrans makes clear that although the Arbitration Act is silent about how an appeal is to be commenced, rule 3.2(5) of the Alberta Rules of Court, Alta Reg 124/2010 (“Rules of Court”) fills that gap and requires that an appeal be made by originating application. Further, based on the authority of the Alberta Court of Appeal in Kwadrans and Allen v Renouf, 2019 ABCA 250, the Court does not have discretion to cure a procedural deficiency if the effect would be to extend a limitation period under the Arbitration Act. Kwadrans addresses issues that may arise as a result of the interplay between the Rules of Court and the Arbitration Act generally and has application to appeals of commercial arbitral awards.
Background facts – The parties received an arbitral award on July 21, 2021, relating to child support and the division of matrimonial property. The parties’ arbitration agreement said that a party may appeal the arbitral award under the Arbitration Act, as of right, on questions of law, fact, or mixed fact and law.
Pursuant to section 44(1) of the Arbitration Act, “[i]f the arbitration agreement so provides, a party may appeal to the court on a question of law, on a question of fact or on a question of mixed fact and law.” Section 46(1) of the Arbitration Act provides that an appeal of an arbitration award under section 44(1) must be commenced within 30 days after the appellant receives the award. However, the Act is silent as to how an appeal is to be commenced.
The appeal of the award to the Alberta Court of King’s Bench – On August 5, 2021, the appellant filed a Notice to Attend Family Docket Court in the existing divorce action that said (at para 5):
“The Applicant seeks to appeal the Arbitration Award and further seeks an Order to stay the enforcement of the Arbitration Award in the interim.
This Notice to Attend is filed in the course of commencing an Arbitration Award to appeal under the 30-day limitation set out at s. 46(1) of the Arbitration Act.”
The parties appeared in Family Docket Court on August 30, 2021. The presiding justice directed that the matter was to be brought in civil chambers, by way of an originating application, to determine whether the appeal was out of time.
The appellant filed an originating application on September 30, 2021, seeking a stay of the arbitration award pending appeal, an order confirming that the appeal was not brought of out of time pursuant to section 46(1) of the Arbitration Act, and other relief. The respondent filed a cross-application seeking to dismiss the originating application on the basis that it was filed after the 30-day limitation period set out in section 46(1) of the Arbitration Act.
The chambers judge held that the Notice to Attend Family Docket Court did not properly commence the appeal of the arbitration award. The proper process required that the appeal be commenced by way of an originating application. The appellant’s use of the Notice, instead of an originating application, was not a technicality that could be cured by rule 3.2(6) of the Rules of Court. The chambers judge issued an order dismissing the originating application on the basis that it was filed out of time and struck the appeal.
Appeal to the ABCA – The appellant appealed the chambers judge’s order to the Court of Appeal of Alberta.
The Court of Appeal considered whether the chambers judge had erred in finding that an appeal of an arbitral award must be commenced by way of an originating application and, therefore, the appellant was out of time to commence his appeal.
The Court of Appeal commented that “[s]ection 46 of the Arbitration Act provides that an appeal ‘must be commenced within 30 days’ after the appellant receives the award but the Act is otherwise silent on how the appeal must be ‘commenced’” (at para 16). The Court held that rule 3.2(5) of the Rules of Court describes how the appeal is to be commenced. Rule 3.2(5) requires that an appeal be made by originating application:
“If an enactment authorizes, requires or permits an appeal or reference to be made to the Court and does not provide a procedure, the appeal or reference must be made by Originating Application in Form 5.”
Accordingly, the Court of Appeal held that the chambers judge did not err when she concluded that an originating application was required to be filed within 30 days of receipt of the arbitral award in order for the appellant to commence his appeal.
In addition, the Court of Appeal considered whether the chambers judge had erred in determining that she was not able to exercise her discretion to cure the appellant’s use of the wrong form to commence his appeal. The appellant argued that his Notice to Attend Family Docket Court crystallized his right of appeal and that the chambers judge ought to have used her authority under rule 3.2(6) to “cure” any defect that resulted from him using the Notice and not an originating application.
Rule 3.2(6) says that:
“If an action that is started in one form should have been started or should continue in another, the Court may make any procedural order to correct and continue the proceeding and deal with any related matter.”
The Court of Appeal emphasized that rule 3.2 provides that an action may be started in one of three ways: a statement of claim, an originating application, or “a notice of appeal, reference or other procedure or method specifically authorized or permitted by an enactment.” The Court held that the appellant’s Notice to Attend Family Docket Court is not a commencement document listed in rule 3.2 and did not start an action. Accordingly, the Court found that the chambers judge did not have authority under rule 3.2(6) to correct or cure the form used by the appellant to commence his appeal.
In addition, the appellant argued that the chambers judge should have used her authority under rule 1.5 of the Rules of Court to cure his use of a Notice to Attend Family Docket Court.
Rule 1.5 states in part as follows:
“1.5(1) If a person contravenes or does not comply with any procedural requirement, or if there is an irregularity in a commencement document, pleading, document, affidavit or prescribed form, a party may apply to the Court
(a) to cure the contravention, non-compliance or irregularity, or
(b) to set aside an act, application, proceeding or other thing because of prejudice to that party arising from the contravention, non-compliance or irregularity.
[…]
(5) The Court must not cure any contravention, non-compliance or irregularity if to do so would have the effect of extending a time period that the Court is prohibited from extending. […]”
The Court of Appeal did not accept the appellant’s argument that the chambers judge ought to have used rule 1.5 to cure the defect in the appellant’s form. Given that the appellant did not commence the appeal within 30 days as required by the Arbitration Act, the Court held that “the appellant is in effect seeking an extension of time to file an appeal of the arbitration award, where the court cannot extend the time for filing an appeal under the Arbitration Act: Allen v Renouf, 2019 ABCA 250 at para 6” (at para 34).
In addition, the Court emphasized that it was not appropriate to provide a rule 1.5 remedy in the circumstances (at para 35):
“The general rule 1.5 should not be invoked if there is a specific rule that addresses the issue in question, here being rule 3.2(6): see Makar v Luedey, 2013 ABQB 189 at para 16; see also Ruth Sullivan, The Construction of Statutes, 7th ed (LexisNexis Canada Inc, 2022) at §11.05. […] Further, rule 1.5(5) expressly prohibits the court from curing any contravention, non-compliance, or irregularity if to do so would have the effect of extending a time period that the court if prohibited from extending, which as already noted, is the case with the Arbitration Act.”
The Court of Appeal agreed with the chambers judge’s determination that an appeal of an arbitral award is properly commenced by the filing of an originating application. In addition, the Court held that neither rule 3.2(6) nor rule 1.5 of the Rules of Court were available to the chambers judge to cure the defect caused by the appellant’s filing of a Notice to Attend Family Docket Court instead of an originating application.
In addition, the Court commented that although the appellant’s decision to file a Notice to Attend Family Docket Court to start his appeal may be understandable given examples of other cases in which appeals of arbitral awards had proceeded through Family Docket Court, the procedure for commencing an appeal was not challenged in those cases. In contrast, the question of whether the appellant had used the proper procedure to commence his appeal was squarely at issue in this case. The Court concluded that it is not able to ignore the express wording of the Arbitration Act and applicable Rules of Court. The proper procedure to commence the appeal required the filing of an originating application.
The appeal was dismissed.
Contributor’s Notes:
First, although the Kwadrans decision relates to a family law dispute, it applies equally to commercial parties that seek to commence an appeal of an arbitration award under section 44(1) of the Alberta Arbitration Act. This case makes clear that, pursuant to section 46 of the Arbitration Act and rule 3.2(5) of the Rules of Court, the proper procedure for commencing the appeal of an arbitral award under section 44(1) of the Arbitration Act requires that an originating application be filed within 30 days after the award is received. Based on the authority of the Alberta Court of Appeal in Kwadrans and Allen, the Court does not have authority to extend the time to file an appeal in the face of a clear statutory limitation period under the Arbitration Act.
Second, the Court’s discussion in Kwadrans about Rule 3.2(6) of the Rules of Court suggests that the Court does not have authority under Rule 3.2(6) to correct or cure a defect in a form used to commence an appeal of an arbitral award if the form is not a commencement document listed in Rule 3.2 and does not start an action. Third, Kwadrans should be considered by parties that seek a remedy pursuant to the general rule 1.5 about “Rule contravention, non-compliance and irregularities.” Kwadrans was recently cited by the Court of King’s Bench of Alberta in Kudzin v APM Construction Services Inc., 2023 ABKB 425 in support of the principle that rule 1.5 should not be used to effectively amend the Rules of Court or override mandatory or limiting provisions (at para 52). Based on Kwadrans and the Alberta Court of King’s Bench decision in Makar, if there is a rule that expressly addresses the issue in question, rule 1.5 should not be invoked.