Permission to appeal, merits of appeal from arbitration heard separately: Alberta Court of Appeal

The Alberta Court of Appeal has ruled that a permission to appeal and a notice of appeal from an arbitration award on child support where appealable issues were not indicated cannot be heard together.

In Esfahani v Samimi, 2022 ABCA 178, the parties entered into an arbitral award relating to child support. Hadi Samimi sought to appeal certain aspects of the award.

Under s. 44(2) of the Arbitration Act, RSA 2000, c A-43, an arbitration award may provide an avenue of appeal to a court, but otherwise the appellant requires permission to appeal.

In this case, the parties signed a standard form arbitration agreement but failed to select the option that allowed an appeal to a court on a question of law, fact, or mixed law and fact under the act. Thus, Samimi needed to apply for permission to appeal.

The chambers judge directed that the application for permission to appeal and the actual merits of the appeal be scheduled and heard together on the same day. The judge reasoned that since all substantial issues must be examined to determine whether leave was to be granted, both are usually heard in the same day.

Haleh Esfahani appealed the chamber judge’s decision. She alleged that both cannot be heard at the same time.

The appeal court agreed. Citing New Way Homes Ltd. v. Bateman, 2009 ABCA 88 in interpreting s. 44(2) of the Arbitration Act, the appellate court ruled that “where an arbitration agreement does not specify the types of issues that can be appealed, permission to appeal must be sought and permission to appeal may only be granted on errors of law.”

The legislature mandates a bifurcated process for dealing with leave applications, which preserves the design of arbitration proceedings – to provide an efficient and economical way to produce finality of awards, said the court.

There was also a danger in hearing both simultaneously since, assuming there was proper basis for the appeal, the judge would inevitably decide the appeal on the merits, rendering permission to appeal moot, said the court.

This, the appeal court suspended Samimi’s notice of appeal until he obtained permission to appeal.