Casual Legal: Permission to appeal an arbitration decision

By Jenna Chamberlain
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

In the recent decision of Dow Chemical Canada ULC v Nova Chemicals Corporation, 2023 ABCA 217 (“Dow Chemical”), the Court confirmed the test for appealing arbitration decisions to the Alberta Court of Appeal.

Arbitration agreements in Alberta are governed by the Arbitration Act (the “Act”).

Pursuant to the Act, any award made by an arbitration tribunal binds the parties, unless the award is appealed or set aside.

An appeal of an arbitration tribunal’s decision is first made to the Alberta Court of King’s Bench. Such an appeal can only be made if allowed in the parties’ arbitration agreement or, specifically for questions of law, with permission of the court.

Section 44 of the Act sets out specific requirements for a court to consider in deciding whether to grant permission to appeal. They are:

• The importance to the parties of the matters at stake in the arbitration justified an appeal
• The determination of the question of law at issue will significantly affect the rights of the parties.

After the Court of King’s Bench has made a decision on appeal, a further appeal may be made to the Court of Appeal, only with permission of a justice of the Court of Appeal.

In Dow Chemical, the Court confirmed the test for such permission requires consideration of four factors, but none of the factors are conclusive:

• Is the issue reasonably arguable?
• Is deciding the issue likely to affect the result of the litigation? 
• Is the answer likely to be of interest to others or likely to influence later suits?
• Is there any independent reason not to re-litigate the question or to limit the scope of the appeal?

In Dow Chemical, the Court found that all the factors were met to a certain extent and granted the parties permission to appeal two particular questions.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.