In Desert Properties Inc. v. G&T Martini Holdings Ltd., 2024 BCCA 24, the Court determined that when an arbitral tribunal corrects an award, the time to seek leave to appeal runs from the date of issuance of the corrected award (“Corrected Award”). The appeal limitation period is not linked to party receipt of the original award (“Original Award”), irrespective of whether the grounds of appeal concern award corrections. The Court’s decision under Arbitration Act, SBC 2020, c. 2 (the “Act”) is consistent with other authorities which have considered the interplay between corrected awards and time limits for award challenges.
Background – G&T Martini Holdings Ltd. (“G&T”) and Desert Properties Ltd. (“Desert”) entered into a series of contracts for the sale and development of an industrial park and commercial centre in suburban Vancouver. One of the contracts included an arbitration agreement directing disputes to a single arbitrator. The parties arbitrated delay and project costs claims.
On November 3, 2023, the arbitrator issued a liability award—the Original Award.
On November 4, 2023, the parties received the Original Award. The parties thereafter corresponded with the arbitrator regarding certain alleged errors in the Original Award.
On December 1, 2023, the arbitrator advised the parties he would be making minor corrections to the Original Award.
On December 4, 2023, Desert filed notice with the Court of Appeal Registry seeking leave to appeal based on alleged legal errors in the Original Award.
Later in the day on December 4, 2023, G&T sought to file its own notice seeking leave to appeal issues in the Original Award. Registry staff suggested that G&T file a cross appeal so a second file would not have to be opened. The Registry’s cross appeal suggestion was emailed to counsel for G&T and Desert.
On December 5, 2023, Desert responded to the Registry email, stating that the Arbitration Act “does not permit any applications for leave to appeal (or cross appeal) to be made later than 30 days after the Award.”
On December 8, 2023, the arbitrator forwarded a Corrected Award to the parties. This was outside the 30-day period to appeal the Original Award.
On December 11, 2023, G&T filed a notice of cross appeal of the Corrected Award.
On December 11, 2023, counsel for Desert emailed G&T counsel, advising that G&T had missed the 30-day limitation provided in section 60(1) of the Act given that G&T was not seeking to appeal award corrections.
On December 13, 2023, G&T filed an application seeking a declaration that the 30-day period for bringing an application for leave to appeal began to run when the arbitrator issued the Corrected Award, i.e. December 8, 2023.
BC Court of Appeal decision on the declaration application – The Court excerpted pertinent portions of the Act, including the corrections and appeal time limit provisions:
“56 (1) Within 30 days after receipt of an arbitral award, unless another period of time has been agreed to by the parties,
1 …a party may request the arbitral tribunal to correct in the arbitral award any computation, clerical or typographical errors or any other errors of a similar nature….
…
60 (1)…an application to set aside an arbitral award…, an appeal…or an application for leave to appeal…must be brought no more than 30 days after the date on which the appellant or applicant receives the arbitral award, correction, interpretation or additional award on which the appeal or application is based.”
The Court of Appeal summarized G&T’s position:
“[8] G&T submits that the final words of s. 60(1)…have the effect of extending the 30-day period for seeking leave to appeal to 30 days from the issuance of the ‘correction, interpretation or additional award’ even if (as in this case) the corrections made by the tribunal under s. 56 are not relevant to and do not form the ‘basis’ of G&T’s proposed cross appeal.”
Desert objected on several grounds, including that G&T was proposing an inefficient and untimely two-track approach, with an appeal of the Original Award and then a cross appeal of the Corrected Award. According to Desert, typo corrections made by an arbitrator should not have the effect of resurrecting an expired time limit under s. 60(1).
The BC Court of Appeal accepted the reasoning in Allen v. Renouf, 2019 ABCA 250, which considered a similar award corrections provision in the Arbitration Act, R.S.A. 2000, c. A-43. The Court repeated and underlined a key passage from the Alberta Court of Appeal’s reasons in Allen, explaining the effect of modifications, corrections, or explanations to the award when there is an appeal:
“[11] …There must be an appeal within 30 days after an award; and by modification of that, if there is a correction of that award, within 30 days after the correction or if there is an explanation of that award, within 30 days of the explanation… so that the appeal always runs from the award as it is…”.
The Court rejected Desert’s timeliness and efficiency concerns:
“[23] … Desert’s interpretation would give rise, in my view, to even greater uncertainty and potential delay. Assuming, for example, in an arbitration between A and B that A filed its application for leave before the arbitrator issued its correction or interpretation. Would A’s appeal before this court be restricted to the uncorrected version of the award? And, if party B filed its appeal after the award was corrected, would B’s appeal proceed on the (corrected) version? Obviously, this result would be nonsensical. The better view, it seems to me, is that any appeal taken under s. 59 is based on the ‘award as it is.’ This approach avoids a series of ‘awards’, appeals and notices of appeal based on successive versions of the award.”
In summary, the Court of Appeal provided G&T the relief sought: an order that the 30-day limitation for bringing an application for leave to cross appeal under s. 60 of the Act began to run on December 8, 2023, when the tribunal issued the Corrected Award. As G&T filed its notice of cross appeal on December 11, 2023, the notice was well within the 30-day appeal time limit applicable to the Corrected Award.
Contributor’s Notes:
The BC corrections provision, s. 56 of the Act, is standard UNCITRAL Model Law issue, found in numerous domestic and international arbitration acts in Canada and around the world. While the Court did not reference the Model Law, it noted that the Act was based in large part on the Uniform Law Conference of Canada (“ULCC”) Uniform Arbitration Act (2016).
The Model Law of course was a major influence for the Uniform Arbitration Act (2016) as the Model Law was years earlier when the ULCC issued the Uniform Arbitration Act (1990). The lineage is important as the Uniform Arbitration Act (1990) and the Model Law heritage are foundational for several domestic acts in Canada, including the Alberta Arbitration Act. The BC Court of Appeal in this case was influenced by the reasoning of Allen, which had interpreted the Alberta Arbitration Act corrections provision. In short, though the Model Law is never mentioned, the lineage in the correction and time limit provisions is apparent and important.
Although the drafting of the ss. 60(1) of the Act is not identical to ss. 46(1) of the Alberta Arbitration Act, the time trigger is the same: receipt of the award by the applicant challenging the award by appeal or set aside.
Once again, the Model Law origins are apparent. Article 34 of the Model Law provides a three-month time limit to bring a set aside application commencing from the date the party making the application receives the award. Under the Model Law of course, there are no appeals: set aside is the sole method of challenging the award.
G&T was granted the order it sought: the 30-day period began to run on December 8, 2023, when the arbitral tribunal issued the Corrected Award. This is the day we are told in “[t]he arbitrator forwarded a corrected award to counsel” (para. 3).
Note: When a party challenges an arbitral award, the statutory time limit trigger is the date the “applicant receives the arbitral award”. However, on several occasions in the Court’s reasons the trigger is treated as the date the award was issued by the arbitral tribunal.
So what? Isn’t issuance of an award the same as receipt of an award?
Not always. In fact, the Court treats issuance and receipt separately in terms of the Original Award: issued on November 3, 2023, but not received by the parties until November 4, 2023. The date the Original Award was “issued” appears to be the date placed on the Original Award by the arbitrator.
The Model Law sets the time trigger to challenge an arbitral award to the date that the applicant who brings the challenge receives the arbitral award. The Model Law was developed in an international arbitration context. An applicant challenging an international arbitration award may well receive an award on a different date than the day an award was made for multiple reasons, including that the applicant and arbitrator may not only be in different time zones, they may be in different days. Such temporal dislocation in less common in domestic arbitration. But it is not impossible.
Did potential conflation between award issuance and receipt make any difference in the subject case? No. The date of award issuance and award receipt by G&T was seemingly the same and G&T filed its cross appeal weeks in advance of the 30-day deadline.
But uncertainly on this point is not necessary. Just follow the statute: time limits under the Act do not run from the date the award is issued by the arbitral tribunal. It is the date the applicant (G&T in this instance) receives the award that triggers the 30-day statutory time limit. Clarity and certainty are always important with time limits, more so with a statutory time limit that cannot be extend by the court (para. 25).
Two final points:
First, because the deadline for requests for corrections is also 30 days, it raises the possibility that a party will have to seek leave to appeal before it knows if the other party will seek a correction.
Second, this decision arose in an application for leave to appeal but the reasoning would also apply in a set aside context.