Manitoba – Court of Appeal declines to grant leave to appeal if unnecessary – #072

In Broadband Communications North Inc v. I-Netlink Incorporated, 2018 MBCA 24 , Mr. Justice William J. Burnett sitting in Chambers dismissed an application for leave to appeal a Court of Queen’s Bench decision which itself had granted leave in part to appeal a final award.   Burnett J.’s brief reasons observe that leave is not granted when leave is unnecessary, jurisdiction only being raised if and when an appeal is filed.

Broadband Communications North Inc. (“Applicant”) filed a notice of motion seeking leave to appeal the Court of Queen’s Bench decision in Broadband Communications North Inc. v. I-Netlink Incorporated, 2017 MBQB 146.

An earlier ArbitrationMatters note covers that initial decision, by Mr. Justice James G. Edmond, which dealt with each party applying for leave to appeal a final award pursuant to section 44(2) of Manitoba’s The Arbitration Act, CCSM c A120: see “Manitoba court uses res judicata and abuse of procedure principles to preempt appeal of arbitral award“.  Edmond J. granted leave for specific questions which qualified and dismissed the rest of the leave sought by each party.

Applicant’s original motion for leave to appeal invoked two sources of jurisdiction for the Court of Appeal: section 48 of the Arbitration Act and sections 25, 26 and 29 of The Court of Appeal Act, CCSM c C240.  Applicant later trimmed the two sources to one.  At the hearing before Burnett J. sitting in Chambers, Applicant abandoned reliance on the Arbitration Act, including section 48 and any other provision, to provide jurisdiction. It submitted that the Court of Appeal Act provided Burnett J. with adequate jurisdiction.

Burnett J. issued a brief seven paragraph decision.  He acknowledge the procedural sources relied on by Applicant at the onset of its application for leave and the sole source invoked at the hearing.

Burnett J. was unpersuaded that sections 25, 26 and 29 granted him jurisdiction as a single judge, sitting in Chambers, to grant leave.  “Presumably if those sections provide jurisdiction, leave is not required.

[5] In my view, given that the applicant is not relying on The Arbitration Act, the issue as to whether sections 25, 26 and 29 provide jurisdiction must be decided if and when an appeal is taken from the application judge’s decision.

 [6] Given my conclusions with respect to jurisdiction, it is not necessary to decide whether the traditional criteria for granting leave have been met.

Burnett J. dismissed the application for leave.