Saskatchewan – Court of Appeal rules appeal right on court’s jurisdiction not displaced by Arbitration Act – #054

The Saskatchewan Court of Appeal distinguished appeals under Saskatchewan’s The Arbitration Act, 1992, SS 1992, c A-24.1 (“AA”) from appeals under Saskatchewan’s The Court of Appeal Rules, Sask Gaz April 18, 1997 (“Appeal Rules”).   In Saskatchewan v. Capitol Steel Corporation, 2018 SKCA 3, the Court held that a chambers judge’s decision that he had no jurisdiction under the AA was a decision subject to appeal under the Appeal Rules.

The Government of Saskatchewan (“Government”) appealed a decision of a chambers judge.  The decision of the chambers judge is the subject of an earlier Arbitration Matters note :  “Saskatchewan court’s narrow interpretation of its authority to review widens arbitrator’s autonomy to manage arbitral process”.

On appeal, Capital Steel Corporation (“Capital”) applied to quash the appeal under Rule 46.1 of Appeal Rules.

The Court of Appeal distinguished appeal of the chambers judge’s decision from an appealing of the reasons for it.  In this manner, the Court was careful to note that in ruling on Capital’s application, the Court made no assessment of the correctness of the chambers judge’s decision.

In first instance, the Government had applied to the Court of Queen’s Bench under section 18(9) of  AA.  Sections (8), (9) and (10) read as follows:

(8) The arbitral tribunal may rule on an objection as a preliminary question or may deal with it in an award.

 (9)  If the arbitral tribunal rules on an objection as a preliminary question, a party may, within 30 days after receiving notice of the ruling, make an application to the court to decide the matter.

 (10)  There is no appeal from the court’s decision on an application pursuant to subsection (9).

The chambers judge held that section 18(9) was not triggered by the arbitrator’s decision.  The Court of Appeal held that the chambers judge had interpreted sections 18(8) and 18(9) of the AA which conferred jurisdiction on the Court of Queen’s Bench.

In so doing, the Chambers judge effectively interpreted ss. 18(8) and (9) of the Act, ruling that an appeal under s. 18(9) addresses substantive, not procedural, matters. In the application before us today, we are not concerned with determining the correctness of that decision. The issue is strictly whether the appeal should be quashed on the ground the Government of Saskatchewan has no right to appeal in light of s. 18(10) of the Act.

The Court considered that the chambers judge’s decision was one which interpreted the AA and determined the judge’s decision.  As his decision dealt with his jurisdiction, section 7(2) of The Court of Appeal Act, 2000, SS 2000, c C-42.1  applied.  The latter provides a general right of appeal to the Court and that right was not “displaced” by the AA.

The Court dismissed Capital’s application to quash the Government’s appeal.

In closing its short reasons, the Court also noted ‘to be clear’, that it did not address the issue of whether leave to appeal is required.