Esfahani v Samimi, 2022 ABKB 795

Court of King’s Bench of Alberta Citation: Esfahani v Samimi, 2022 ABKB 795 Date: 20221205 Docket: 4801 180692 Registry: Calgary Between: Haleh Rabbani Esfahani Plaintiff (Respondent) - and - Hadi Samimi Defendant (Appellant) _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ Table of Contents I. Introduction . 3 II. Background . 3 III. Procedural History of the Arbitration . 4 IV. Issues . 6 V. Analysis . 7

A. Standard of Review in an Appeal under Section 44(1) of the Act 7 1. Principles of Statutory

Interpretation . 7 2.

Interpretation of

Section 44 of the Act 8 3. Conclusion re Standard of Review .. 19 B. Procedural Fairness under section 44(1) of the Act 19 1. Can Procedural Fairness be Raised in a

Section 44 Appeal? . 19 2. Can an Appellant Rely on Pre-Hearing Procedural Decisions? . 21 3. The Required Procedural Fairness in Arbitrations under the Act 23 C. The Record and the Samimi 2021 Affidavit 25 1. Appropriate Record . 25 2. Fresh Evidence on Arbitration Appeal 26 D. Did the Arbitrator Err in her Credibility Findings? . 28 E. Arbitrator’s Treatment of Esfahani’s Alleged Lack of Disclosure / Late Disclosure . 28 1. Arbitrator’s Decision To Proceed with the Arbitration . 29 2. Arbitrator’s Failure to Draw an Adverse Inference Against Esfahani 31 3.

Alleged Breaches of Procedural Fairness regarding Disclosure . 32 F. Did the Arbitrator err in respect of her treatment or findings in respect of Ghazal Javan? . 34 1. Arbitrator’s Refusal To Adjourn the Arbitration to Allow Expert Evidence . 34 2. Accepting Father’s Evidence about the Ghazal Javan Shares and Concluding they Were Not Beneficially Owned by Esfahani 35 3. Evidence of Esfahani’s Contribution to Ghazal Javan During the Marriage . 35 G. Did the Arbitrator err in respect of her treatment or findings related to the SUV? . 35 H.

Did the Arbitrator err in respect of her treatment or findings related to the Tangerine credit card? 37 I. Did the Arbitrator err in respect of her treatment or findings in respect of the Sun Life Whole Insurance Policy? . 38 J. Did the Arbitrator Err in her Treatment or Findings in respect of Jewelry? . 38 K. Did the Arbitrator Err in her Treatment or Findings in Respect of Samimi’s Charitable Donations / Tax Refunds? . 39 L. Did the Arbitrator Err in her Treatment or Findings in Respect of Silkroad Road? . 39 M. Should the Costs Award be Varied? . 40 VI. Conclusion . 40 I. Introduction [ 1 ] Mr.

Hadi Samimi ( Samimi ) and Ms. Haleh Rabbani Esfahani ( Esfahani ) were married and have children together. After a breakdown of their marriage, the parties sought to resolve their child support and property division matters by way of arbitration, and the Arbitrator, Krysta Ostwald, KC ( Arbitrator ), made awards on those issues. [ 2 ] Samimi appeals and seeks to set aside the Arbitrator’s matrimonial property award ( Award ) pursuant to section 44(1) of the Arbitration Act , RSA 2000 c A-43 [ Act ] but does not also apply pursuant to

section 45 of the Act . He raises several grounds of appeal, including that the Arbitrator failed to apply principles of procedural fairness in the matrimonial property division arbitration ( Arbitration ), as well as other alleged errors of fact, law or mixed fact and law.

The Appeal raises numerous issues, including the appropriate standard of review in an appeal under section 44(1) of the Act , whether matters of procedural fairness can be relied on in an appeal under section 44(1) of the Act , whether an arbitrator’s procedural directions can or must be appealed under the Act , the appropriate record and test for adducing fresh evidence on an appeal of an arbitration award, among others. [ 3 ] For the reasons set out below, the Appeal is dismissed and the Award is not set aside.

However, the Award is varied to address certain specific issues and the Arbitrator is directed to recalculate her final property division and revisit her costs decision in light

of this decision. II. Background [ 4 ] Samimi and Esfahani were married in 2007. They had two children, in 2014 and 2017, and then separated in 2018. [ 5 ] In January 2019, Esfahani filed a Statement of Claim for Divorce and Division of Matrimonial Property. The procedural history of the disputes arising out of the marital breakdown between the parties have been acrimonious and complex. As appears common in such disputes, distinct issues travel their own distinct procedural path and are often dealt with separately, rather than all matters proceeding to one omnibus resolution process.

Here, the issue of parenting has been proceeding through a court process. The issues of child support, matrimonial property division and costs have been proceeding by way of arbitration. [ 6 ] These Reasons relate only to the matrimonial property division arbitration process. [ 7 ] In August 2019, the parties entered into a Mediation/Arbitration Agreement ( Arbitration Agreement ) with the Arbitrator by which they submitted the issues of child support, property division and costs for determination of temporary relief, if appropriate, and for final determination.

The Arbitration Agreement included the option of checking the “remedy” sub-clause they wished to rely upon, but no option was selected: 15.1 Any Award may be subject to Remedies under the Arbitration Act : (choose either (

a) or (

b) or (c)) (

a) In accordance with subsection 44 and/or 45 of the Arbitration Act ; (

b) A party may apply for Remedies under the Arbitration Act on (choose one or more of the following) A question of law, A question of fact; or A question of mixed fact and law; (

c) The parties agree that there will be no right of Remedies under the Arbitration Act from the Arbitrator’s Award. [ 8 ] The parties’ failure to select their remedy was an issue in the child support arbitration process. In April 2020, the Arbitrator issued an amended arbitral award relating to child support. Samimi sought to appeal it. In May 2021, Justice Ashcroft directed that the application for permission to appeal under section 44(2) of the Act would be scheduled and heard together with the appeal of the child support award.

Samimi sought permission to appeal Justice Ashcroft’s endorsement, and permission was granted: Esfahani v Samimi , 2021 ABCA 290 . On appeal, the Court of Appeal confirmed that where parties have chosen arbitration as the method to resolve disputes and do not expressly elect the broader review remedies found in

section 44 of the Act , the requirement to seek permission to appeal under section 44(2) applies and the permission to appeal application must be heard before the substantive appeal: Esfahani v Samimi , 2022 ABCA 178 [ Esfahani 2022 ] . [ 9 ] The Arbitration comes from the same Arbitration Agreement as the child support arbitration. However, in respect of the Arbitration, the parties subsequently agreed that the “Rights of Appeal shall be pursuant to

section 15.1(b) – A party may apply for Remedies under the Arbitration Act ; namely on a question of law, a question of fact and/or a question of mixed fact and law”. This agreement of the parties was reflected in a May 27, 2020 “Amended Process Arbitration Award” ( May 27 Decision ) issued by the Arbitrator. As a result, with the agreement of both parties this Appeal was brought pursuant to section 44(1) of the Act , as opposed to section 44(2) of Act , and no permission to appeal was required. III.

Procedural History of the Arbitration [ 10 ] Prior to the Arbitration, the Arbitrator made several procedural decisions or directions. [ 11 ] On October 10, 2019, the Arbitrator issued a “Consent Arbitration Award” dealing with, among other things, the parties’ financial disclosure. On November 27, 2019, the Arbitrator issued a “Value of Matrimonial Home – Arbitration Award”, which related to the purchase of the matrimonial home by Samimi from Esfahani for a set price. [ 12 ] On January 23, 2020, the Arbitrator issued an “Arbitration Award” dealing with the process for issues of property division and costs.

It provided deadlines for answers to undertakings, the process for provision of affidavits and reply affidavits, and setting the date for the Arbitration oral hearing ( Hearing ). [ 13 ] The May 27 Decision provided, among other things:

(1) Esfahani’s father, Alireza Rabbani Esfahani ( Father ) shall be asked to swear an affidavit towards the answering of some of Esfahani’s undertakings;

(2) Esfahani’s Father would be questioned on his affidavit, if requested by Samimi, at the Hearing; (3) updated deadlines for affidavits and reply affidavits; (4) for the exchange of proposed exhibits or other documents to be put to a witness; (5) that the oral hearing would take place on June 17 and 18, 2020; (6) a party may appeal for questions of law, a question of fact and/or a question of mixed fact and law; and (7) for written argument following the Hearing and that “there shall be no further submissions thereafter”. [ 14 ] On June 18, 2020, after hearing from the parties that the Arbitration needed to be adjourned and various procedural matters needed to be addressed, the Arbitrator issued an “Amended Amended Process Arbitration Award” ( June 18 Decision ).

The Arbitration was rescheduled to late July 2020.

[ 15 ] On July 22, 2020, the Arbitrator issued an “Interim Applications Arbitration Award” ( July 22 Decision ). [1] The July 22 Decision arose after arguments made by the parties on four issues that Samimi raised, including disclosure, lateness of exhibit books, and expert evidence.

The Arbitrator refused to order further disclosure, refused to strike late exhibit books, and refused to further adjourn the Arbitration so Samimi could seek to adduce expert evidence about business practices in Iran. [ 16 ] On July 28, 2020, the night before the start of the Hearing, Esfahani responded to a Samimi disclosure request and provided further disclosure ( July 28 Disclosure ). [ 17 ] The Hearing proceeded on July 29-31, 2020. [ 18 ] On July 31, 2020, the Arbitrator issued a “Process Arbitration Award dated July 31, 2020”, ( July 31 Decision ).

The July 31 Decision memorialized certain process agreements or decisions that arose during the Hearing, and provided, among other things:

(1) Samimi was to provide his response to an outstanding undertaking; (2) the parties were to provide the Arbitrator with an email confirming whether they agreed to the Arbitrator reviewing the July 28 Disclosure; and

(3) Samimi was given an opportunity to authenticate certain exhibits. [ 19 ] On September 2, 2020, the Arbitrator issued a “Procedural Arbitration Award” ( September 2 Decision ).

In the September 2 Decision, the Arbitrator struck certain evidence Samimi attempted to submit with his written argument, after the close of the evidence. [ 20 ] On October 19, 2020, the Arbitrator issued a Final Arbitration Award, and on December 11, 2020, the Arbitrator issued the Amended Final Arbitration Award in respect of the property division. [ 21 ] On February 10, 2021, the Arbitrator issued a “Costs Arbitration Award” ( Costs Award ) in respect of both the child support arbitration and the Arbitration. [ 22 ] After various procedural steps in this Court, on September 24, 2021, Samimi filed his Appeal, which was scheduled to be heard in October 2021.

Esfahani does not dispute that Samimi commenced the Appeal within the deadline as set out in section 46(1) (

a) of the Act . [ 23 ] When he filed his Appeal, Samimi also filed an affidavit ( Samimi 2021 Affidavit ). Samimi did not file an application to adduce fresh evidence on the Appeal. [ 24 ] Samimi raises several intertwined grounds of appeal. Esfahani disputes each ground of appeal on its merits. In addition, Esfahani raises arguments relating to the record on Appeal, the Samimi 2021 Affidavit, and Samimi’s failure to appeal the July 22 Decision. I have organized the various issues for an orderly analysis below. IV. Issues [ 25 ] This Appeal raises these issues: (

a) What is the appropriate standard of review of an arbitrator’s decision under section 44(1) of the Act ? (

b) Can allegations of breaches of procedural fairness or natural justice be relied upon in an appeal under section 44(1) of the Act ? If so, (

i) Can an appellant rely on procedural decisions made prior to the arbitration hearing? (ii) What is the applicable standard of review or test for determining the required procedural fairness in an arbitration under the Act ? (

c) What is appropriate record before a court on an appeal under section 44(1) of the Act and, in particular, is Samimi entitled to rely on the Samimi 2021 Affidavit in this Appeal? (

d) Did the Arbitrator err in her credibility assessment or findings? (

e) Did the Arbitrator err in respect of her treatment or findings in respect of Esfahani’s alleged lack of disclosure or timely disclosure? (

f) Did the Arbitrator err in respect of her treatment or findings in respect of Esfahani’s shares in the Iranian corporation Ghazal Javan Publications Co. ( Ghazal Javan )? (

g) Did the Arbitrator err in respect of her treatment or findings related to the Honda Pilot SUV ( SUV )? (

h) Did the Arbitrator err in respect of her treatment or findings related to the Tangerine credit card? (

i) Did the Arbitrator err in respect of her treatment or findings in respect of the Sun Life Whole Insurance Policy? (

j) Did the Arbitrator err in respect of her treatment or findings in respect of certain jewelry? (

k) Did the Arbitrator err in respect of her treatment or findings with respect to Silkroad House Inc ( Silkroad )? (

l) Should the Costs Award be varied?

V. Analysis A. Standard of Review in an Appeal under Section 44(1) of the Act [26] This Appeal is brought pursuant to section 44(1) of the Act. Section 44(1) says that if the arbitration agreement so provides, aparty may appeal an award to the court on a question of law, on a question of fact or on a question of mixed law and fact. [27] In this case, the parties appear to agree that the appellate standard of review applies.

However, the choice of the standard ofreview is a question of law and the parties’ positions or agreement are not determinative—the court must determine the correct standardof review: Monsanto Canada Inc v Ontario (Superintendent of Financial Services), 2004 SCC 54 at para 6; James v Real EstateCouncil of Alberta, 2006 ABCA 222 at para 16. [28] The Act does not state a standard of review on an arbitration appeal. Therefore, I must interpret

section 44 of the Act todetermine the appropriate standard of review, having regard to any binding or persuasive judicial decisions, including the decisions ofthe Supreme Court of Canada in Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53; Teal Cedar Products Ltd v British Columbia,2017 SCC 32; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65; and Wastech Services Ltd v GreaterVancouver Sewerage and Drainage District, 2021 SCC 7. 1. Principles of Statutory

Interpretation [29] The modern approach to statutory

interpretation requires a court to consider the words of a statute in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislatureor Parliament: Alberta Securities Commission v Hennig, 2021 ABCA 411 at para 22; Tokio Marine & Nichido Insurance Company vSecurity National Insurance Company, 2020 ABCA 402 at paras 213-214; Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, at para 21; Geophysical Service Incorporated v EnCana Corporation, 2017 ABCA 125 at para 77.

The entire contextincludes the history of the provision at issue and its place in the overall scheme of the Act: Tokio at para 214. Context and purpose mustalways be considered: Tokio at para 214.

Courts should resist interpreting a statute in a way that overwhelms the statute’s plainlanguage: Agrium v Orbis Engineering Field Services, 2022 ABCA 266 at para 26; Re:Sound v Motion Picture Theatre Associationsof Canada, 2012 SCC 38 at para 33. [30] It is also important for courts to keep in mind principles for harmonizing different statutes, pursuant to the principles ofcoherency, consistency and consistent expression: Agrium at para 27; R v Ulybel Enterprises Ltd, 2001 SCC 56 at para 30; Vavilov atpara 44.

The presumptions of coherence and consistency apply not only to Acts dealing with the same subject but also, albeit with lesserforce, to the entire body of statute law produced by a legislature; therefore, other things being equal,

interpretations that minimize thepossibility of conflict or incoherence among different enactments are preferred: R v Ulybel at para 30. 2.

Interpretation of

Section 44 of the Act [31] I have reviewed the context, legislative history, purpose, objects, text and scheme of the Act, in the context of the persuasiveand binding authority. I conclude that the standard of review to be applied in an appeal under section 44(1) of the Act, at least where theparties have not attempted to contract out of the provisions of the Act requiring the arbitral tribunal to apply the law, is the appellatestandard of review. I reach this conclusion based on several factors, including: (1) the general purposes of arbitration legislation and thelimited role of courts; (2) the Act’s context and legislative history;

(3) Alberta courts’

interpretation of

section 44 of the Act prior toSattva; (4) the Supreme Court of Canada decisions in Sattva and Teal Cedar; (5) the Vavilov and Wastech decisions; and (6) whetherthe appellate standard of review undermines or is inconsistent with the purposes of the Act. a. General Purposes of Arbitration Legislation and the Act [32] Our Court of Appeal has confirmed the objective of arbitration legislation and the non-intervention role of courts.

In EPCORPower LP v Petrobank Energy and Resources Ltd, 2010 ABCA 378, the Court stated, at para 16: As a matter of law and policy, the role of the courts in relation to arbitration has been one of non-intervention. The objective ofarbitration legislation and the jurisprudence interpreting it is to promote adherence to agreements, efficiency and fairness and to lendcredibility to an important dispute resolution process. Courts are instructed to be mindful of this overarching purpose in any exercise ofdiscretion.

The discretion seems to be framed in the negative, as one “not to refer”, a distinction intended to emphasize the legislativepreference for arbitration. [33] These general statements are consistent with the purpose of the Act based on its context and legislative history discussedbelow.

See also Enmax Energy Corporation v TransAlta Generation Partnership, 2015 ABCA 383 at para 21 [ENMAX 2015], in thecontext of a regulated form of arrangement that included an arbitration agreement. [34] In ENMAX Energy Corporation v TransAlta Generation Partnership, 2022 ABCA 206 [ENMAX 2022], the Court madesimilar observations, and added, at para 29, that “arbitrations are intended to provide a faster and less expensive process to resolvedisputes”.

The Court noted that the appeal provisions of the Act limits judicial intervention and promotes finality, at para 35: The appeal provision limits judicial intervention and promotes finality by restricting the circumstances under which the court mayreview an arbitration award. The availability and scope of an appeal depends on what the parties agreed to under the arbitrationagreement.

If the parties did not agree that they could appeal an award, the appeal cannot proceed unless the court grants permissionafter determining that the appeal involves a question of law and is warranted in the circumstances pursuant to the requirements insubsection (2.1). Court intervention is further restricted under subsection (3), by precluding appeals involving a question of law which

was expressly referred to the arbitration panel. [35] In Esfahani 2022, the Court of Appeal confirmed, at para 15, and in the context of the leave to appeal requirement in section44(2), that the Act provides that “judicial involvement in arbitrations ought to be restricted as a matter of law”. [36] These general comments, and in particular those specific to the appeal provisions of the Act, are binding on me and I agreewith them. They must be considered when interpreting

section 44 the Act and the appropriate standard of review. b. The Act’s Context and Legislative History [37] Prior to the Act’s 1992 enactment, Alberta, like most provinces, had a long-standing legislative arbitration regime with itsroots in the English Arbitration Act, 1889 (UK), c 49. Prior to the Act, Alberta arbitration legislation did not include an appeal right, butallowed the Court to set aside an arbitral award if the arbitrator “misconducted” themselves or the award was “improperly procured”:Arbitration Act, RSA 1980 c A-43, section 11(2). [38] Over time, the

interpretation of “misconduct” led to a “malleable and flexible concept” which provided courts with a widediscretion to set aside awards on legal, factual or procedural grounds, including based on errors “on the face of the award”: HeritageHouse Holdings Ltd v Gloge Heating & Plumbing, [1978] AJ No 230, 1978 Alta SCAD 363; Re Otis Elevator Co Ltd et al andInternational Union of Elevator Constructors, Local 130 et al (1975), 53 DLR (3d) 563, (Alta CA); Slavutych vBaker et al (1975), (SCC), [1976] 1 SCR 254; W.H. Hurlburt, “New Legislation for Domestic Arbitrations” (1992) 21Can Bus LJ at 18 [Hurlburt 1992]; W. H.

Hurlburt, “Setting Aside Private Non-Labour Arbitration Awards for Errors of Law – SomeRecent Decisions” (1988) 26:2 Alta L Rev 345 [Hurlburt 1998]; W. H.

Hurlburt, “A New Bottle for Renewed Wine: The ArbitrationAct, 1991” (1995) 34:1 Alta L Rev 86 [Hurlburt 1995]; Alberta, Institute of Law Research and Reform, Towards a New Arbitration Actfor Alberta, Issue Paper No 1 (1987) at 13-14 and 16-19 [ALRI Issues Paper]. [39] In addition to providing a wide discretion to set aside arbitration awards on grounds of misconduct, the previous legislationcreated opportunities both for judicial intervention in the arbitration process and for parties to avoid arbitration by resorting to litigationor otherwise being obstructive: Chapman, “Judicial Scrutiny of Domestic Commercial Arbitral Awards” (1995) 74:3 Can Bar Rev 401 at403-405. [40] In the 1980s, several provinces began domestic arbitration legislative reform, buoyed by the creation and adoption theUNCITRAL Model Law in respect of international commercial arbitrations [Model Law].

British Columbia was first out of the gate andpassed its new legislation in 1986: Commercial Arbitration Act, SBC 1986, c 3.

In 1987, the Alberta Law Reform Institute published theALRI Issues Paper, and in 1988 it issued a final report with proposed new arbitration legislation based in part on the Model Law: ALRIIssues Paper, ibid; Alberta, Institute of Law Research and Reform, Proposals for a New Arbitration Act, Report No 51 (1988) [ALRIReport]; Hurlburt 1992 at 4-6. [41] The ALRI Report proposed legislation that included an appeal right on issues of law only, with leave of the court or withoutleave if the parties consented.

It noted the historical role of courts included answering “questions of law in order to give guidance toarbitrators and arbitration parties”, and that this power would continue: ALRI Report at 28.

With respect to the proposed right of appeal(with leave), it stated that the reason for this proposal was that “if an award is wrong in law, a party should be able to appeal against it tothe Court of Queen’s Bench, but, in order to minimize the use of appeals for delay and obstruction, he should be required to movepromptly, and a further appeal should be available only by leave”: ALRI Report at 62. [42] Following the ALRI Report, a proposed draft uniform Act (Uniform Act), building off the ALRI Report, was the subject ofreview and comment through the Uniform Law Conference of Canada in 1989 and 1990: Hurlburt 1992 at 4-6.

The guiding principles ofthe proposed Uniform Act were stated to be (1) people who enter into valid arbitration agreements should be held to those agreements;(2) the parties should have a broad freedom to design the arbitral process as they see fit; (3) that process should nevertheless be fair toboth parties; and (4) the award resulting from the arbitration should be readily enforceable, subject only to review for a specific list offatal flaws of form or procedure: Uniform Law Conference of Canada, Proceedings of the Seventy-Second Annual Meeting Held at SaintJohn, New Brunswick, (1990) (ULCC Proceedings) at 88. [43] The ULCC Proceedings conference commentaries say this about the role of the courts: The Act attempts to minimize the opportunities to delay the arbitration, either by refusing to participate or by seeking the intervention ofthe courts.

The courts do have their place in arbitration under the Uniform Act, however. They can keep proceedings moving in the faceof resistance, they can protect the position of the parties during proceedings, they can help ensure that the arbitral award applies [sic]with the law, and they can lend their weight to the enforcement of the award. [Emphasis added] [44] The proposed Uniform Act included a provision that the arbitral tribunal “shall decide a dispute in accordance with law,including equity...” (this provision is now

section 31 of the Act). The commentary stated that “the arbitrator is required to apply the law,which extends to rules of equity and specified equitable remedies. The parties can opt out of this, to permit the arbitration to be decidedon the basis of what is fair in the circumstances”: ULCC Proceedings at 105. [45] The proposed Uniform Act expanded the appeal right by agreement of the parties to include an appeal on questions of fact ormixed fact and law, which was not in the ALRI Report’s proposed legislation.

Therefore, as it relates to appeal rights, the Uniform Actwas very similar to what ended up in the Act. [46] In 1991, the Alberta government presented a draft bill that, with some changes, was largely based on the ALRI Report’sproposal and the proposed Uniform Act from the ULCC Proceedings. It was the result of significant review, including by the AlbertaArbitration and Mediation Society in conjunction with the Alberta Law Reform Institute, and through the legislative process: Hurlburt1992 at 6; Alberta, Legislative Assembly, Hansard, 22nd Leg, 3rd Sess, (24 June 1991) at 1933 [Hansard].

[47] When Bill 9 was presented for second reading, the draft Act was presented as dealing with two major problems in the existinglegislation, namely “a number of practical problems” and the broad scope of discretionary intervention by the courts which “eitherdefeats or at least potentially defeats the purpose of the Act and the purpose of arbitrating parties, which is to avoid the courts”: Hansardat 1932. The Act was described as providing “limits on court intervention and prescribing grounds upon which an award may beappealed or set aside”: Hansard at 1932-33.

The Act was said to be structured around two fundamental principles, both related toprocedure: the need to recognize and provide for control of the process by the parties and the need to ensure fairness and due process inthe procedures: Hansard at 1933. [48] From a review of this context and legislative history, several aspects of the Act emerge to foster the benefits and purposes ofarbitration, including efficiency, speed, finality and party autonomy: (1) holding parties to agreements to arbitrate and reduceobstructionism; (2) party autonomy in designing the arbitral process, subject to the court’s supervisory role to ensure fairness; (3)creating a statutory framework to assist the arbitral process and enforce awards that arise out of it; and (4) providing a non-consensualappeal right (with leave) with prescribed rules to ensure arbitration awards purporting to be decided based on the law were not “wrong inlaw”, and an appeal right to ensure arbitrations are not based on factual errors if the parties agree to that. c.

Text of the Act [49] The text of the Act does not expressly state the standard of review on an arbitration appeal. However, in my view, the text ofthe Act is consistent with an appellate standard of review, and in particular the correctness standard on questions of law, particularlywhere the parties have not expressed an intention for something different to apply: Hurlburt 1995 at 102. [50] For example, section 17(2) of the Act provides that the arbitral tribunal may determine any question of law that arises duringthe arbitration.

But section 8(2) of the Act provides that the arbitral tribunal may also ask the court to determine a question of law thatarises during the arbitration.

The latter would not be necessary unless the legislative intention was that the arbitrator is to apply thecorrect law, even if it would delay or make the process more expensive. [51] Further, the Act expressly provides that arbitrators are not bound to follow the rules or laws pertaining to evidence (Act,section 21), but the default is that they do not have the same freedom with the application of the law, as they are required to decidematters in dispute “in accordance with law, including equity” (Act,

section 31) or the applicable laws of another jurisdiction (Act, section32). Again, this indicates a legislative intention which gives priority to the correct application of law in arbitrations under the Act. [52] Sections 17(2), 8(2), 21 and 31 may all be varied or excluded by agreement of the parties, pursuant to

section 3 of the Act.This means that it may be open to the parties to expressly agree in their arbitration agreements that arbitrators are not bound to follow thelaw, or are not permitted to seek the court’s assistance on legal questions that arise during the arbitration.

In the case before me, theparties did not contract out of any of these sections of the Act, and I leave for another day the potential impact such an express agreementmight have on the availability of an appeal or the standard of review: Hurlburt 1995 at 102. [53] Another important aspect of the text of the Act is that it applies to any “arbitration agreement”, which is any agreement bywhich 2 or more persons agree to submit a matter in dispute to arbitration”: Act,

section 2. The Act applies to a wide array of domesticarbitration agreements in Alberta—not all domestic arbitrations under the Act are or will be between businesses or commercial in nature.Some arbitrations that could fall under the Act will involve or affect a multitude of other potential participants or stakeholders, including,for example, families, children, religious, charitable, not-for-profit, or governmental organizations, estates, educational institutions,athletes, to name a few. The possibilities are almost endless.

The motivation to arbitrate, or the purpose of arbitration may be different,and the correct application of law may be more important to some parties than others.[2] In my view, the Act must be interpreted havingregard to all arbitrations to which it might apply and this supports an appellate standard of review. [54] Finally,

section 44 of the Act uses the term “appeal”. Section 44(1) allows arbitration parties to voluntarily agree to appeals,including on questions of law. Further, section 44(2) provides for appeals on questions of law (with permission), and this cannot beexcluded by agreement under

section 3 of the Act. These provisions arguably imply that the Legislature intended the courts to have aresidual jurisdiction to interfere on questions of law on a less deferential standard. d. Alberta Courts’ Treatment of Standard of Review Before Sattva [55] Following the passing of the Act, and before Sattva, there was some inconsistency in Alberta courts’ determinations of thestandard of review under

section 44 appeals the Act [56] One line of cases infused administrative law principles into the standard of review analysis, with differing results based on theapplicable standard of review analysis at the time. In Willick v Willick, 118 DLR (4th) 51, (Alta QB), the Court reliedon Pezim v British Columbia Securities Commission, (SCC), [1994] 2 SCR 557, and concluded that correctness wasthe appropriate standard of review under section 44(1) of the Act.

See also: Canadian Crude Separators Ltd v Jacobson, 1998 ABQB590. [57] In Contract Policy Committee v FortisAlberta Inc, 2012 ABQB 653, the court applied an administrative law analysis basedon, among others, Dunsmuir v New Brunswick, 2008 SCC 9, and applied a deferential standard to some legal questions and acorrectness standard to others.

A similar approach was taken in Heredity Homes (St Albert) Ltd v Scanga, 2009 ABQB 237 at para 62and Homexx Corp v Nelson, 2013 ABQB 513 at paras 18-20. [58] The other line of cases tended to apply a standard of review more consistent with the appellate standard of review, particularlywith respect to the correctness standard on legal issues.

This was used in cases under section 44(1) of the Act: Seneviratne v Seneviratne,1998 ABQB 289 at para 45; Alberta (Public Works, Supply and Services) v Nilsson, 1999 ABQB 440 at para 32 [Nilsson]; Metcalfe vMetcalfe, 2006 ABQB 798 at para 23; Denali Construction Inc v Tremore Contracting Ltd, 2013 ABQB 321 at para 2. And also incases under 44(2) of the Act: Altarose Construction Ltd v Kornichuk, 201 AR 258, (Alta QB); Dacro Industries Ltdv Lombard General Insurance Company of Canada, 2002 ABQB 88; Capital Power Corporation v Lehigh Hanson Materials Limited,

2013 ABQB 413 at para 56. [59] The only Court of Appeal authority directly addressing the standard of review under

section 44 of the Act before Sattva isAlberta (Minister of Infrastructure) v Nilsson, 2002 ABCA 283, which was an appeal under section 44(1) of the Act. In that case, theCourt of Appeal applied an appellate standard of review, at para 37: [37] The appeal judge was required to apply the correctness standard of review to the arbitrator’s statements of law and thereasonableness or manifest error standard to the arbitrator’s findings of fact.

However, if the arbitrator erred with respect to the law, itwas open to the appeal judge to draw different inferences after applying the correct law to the facts: Hickman Motors Ltd. v. Canada, (SCC), [1997] 2 S.C.R. 336 at para. 27, L’Heureux-Dubé J., separate reasons concurring in the result; R. v. Skalbania, (SCC), [1997] 3 S.C.R. 995... [60] As Nilsson is the only Court of Appeal case directly applying the standard of review under

section 44 of the Act, it is bindingon me and must be followed unless it was overtaken by other Court of Appeal or Supreme Court of Canada decisions. e. Sattva and Teal Cedar prior to Vavilov [61] In Sattva, the Supreme Court of Canada considered the standard of review in a commercial arbitration appeal pursuant tosection 31(2) of British Columbia’s Arbitration Act, RSBC 1996 c 55 [BC 1996 Act](formerly the Commercial Arbitration Act).

TheCourt confirmed the differences between judicial review of administrative tribunal decisions and appeals of arbitration awards, but notedthey were “analogous in some respects”: Sattva at paras 104-105. The Court noted that aspects of Dunsmuir were helpful in determiningthe appropriate standard of review, and then effectively incorporated significant aspects of Dunsmuir and expressly incorporated theadministrative law analysis in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61.

TheCourt stated, at para 106, that “in the context of commercial arbitration, where appeals are restricted to questions of law, the standard ofreview will be reasonableness unless the question is one that would attract the correctness standard, such as constitutional questions orquestions of law of central importance to the legal system as a whole and outside the adjudicator’s expertise...”. [62] In Teal Cedar, the Supreme Court of Canada reconfirmed that “in British Columbia, the scope of appellate intervention incommercial arbitration is narrow...”: at para 1.

The Court reconfirmed Sattva and said that it had “recently held that a deferentialstandard of review — reasonableness — ‘almost always’ applies to arbitration awards: ibid.

Teal Cedar was an arbitration pursuant to amandatory statutory arbitration under the Forestry Revitalization Act, SBC 2003 c 17. [63] Since Sattva in 2014 and Teal Cedar in 2017, many Canadian courts have applied the deferential standard of review onquestions of law in the context of non-BC arbitration legislation, sometimes without analysis of the specific provincial legislation inissue: see, for example: Ledore Investments Limited (Ross Steel Fabricators & Contractors) v Ellis-Don Construction Ltd, 2017ONCA 518 at paras 17-19; Ottawa (City) v The Coliseum Inc, 2016 ONCA 363 at para 34; SG Ceresco Inc v BroadGrain CommoditiesInc, 2018 MBQB 120; Clayton v Canada (Attorney General), 2018 FCA 1; Elchuk v Gulansky, 2019 SCKA 108.

The application ofSattva outside of British Columbia was most prominent in Ontario. [64] In Alberta, post-Sattva but prior to Vavilov, Alberta trial level courts have made obiter statements consistent with Sattva, orhave applied Sattva to the Act: Alberta Medical Association v Alberta Health Services, 2019 ABQB 82 at para 16; AppliedTechnologies, LP v Sirois, 2018 ABQB 818 at para 169; Lutzak v Medisystem Technologies Inc, 2016 ABQB 258 at para 18;Canadian National Railway Company v Teamsters Canada Rail Conference, 2018 ABQB 405 at para 16; KBR Industrial Canada Cov Air Liquide Global E&C Solutions Canada LP, 2018 ABQB 257 at para 18; Extreme Excavating & Backhoe Services Ltd v Scott,2018 ABQB 102 at para 19; 1285592 Alberta Ltd v Moderno Homes Inc, 2018 ABQB 23 at para 12.

In at least one decision the Courtcontinued to apply the appellate standard of review based on pre-Sattva jurisprudence: CRW v SJA, 2018 ABQB 1041 at paras 11-12. [65] Since Sattva, the Alberta Court of Appeal has not yet directly considered the standard of review under

section 44 of the Act.The Court of Appeal has made obiter statements referencing Sattva, some of which suggest that it would or might apply in Alberta:Hicklin Estate v Hicklin, 2019 ABCA 136 at para 95; ENMAX 2015 at para 21.

But in different circumstances, the Court of Appeal hasnoted that Sattva was an appeal under the British Columbia’s commercial arbitration legislation and must be read having regard to thecontext in which it was decided: see, for example: Vallieres v Vozniak, 2014 ABCA 290 at para 12; Bighorn (Municipal District No 8)v Bow Valley Waste Management Commission, 2015 ABCA 127. [66] Without the Alberta Court of Appeal clearly adopting Sattva in respect of an appeal under the Act, it is not clear that Sattva orTeal Cedar are (or ever were) binding in Alberta in respect of the standard of review to be applied to arbitration appeals under the Act.

Inthe circumstances, I conclude that Sattva and Teal Cedar were not and are not binding on the question of the standard of review insection 44 of the Act due to their distinguishing features, including: (

a) Sattva and Teal Cedar were limited to an

interpretation of the BC 1996 Act, not the Act, and the generalized statements madein Sattva and Teal Cedar must be viewed in this light; (

b) the BC 1996 Act was a later version of British Columbia’s Commercial Arbitration Act first passed in 1986 andimplementing the 1982 Report on Arbitration by the British Columbia Law Reform Commission. It has been described as a “thoroughrenovation and modernization of the existing domestic arbitration regime”: Hurlburt 1992. However, the Alberta Act followed a differentmodel – the Model Law, but with some departures. It cannot simply be assumed that the legislative intent, based on different underlyinglegislative models, is the same in the two provinces; (

c) the appeal provisions under the BC 1996 Act are different than under the Alberta Act. The BC 1996 Act had a morerestrictive and deferential test for leave to appeal than the Act: BC 1996 Act, s 31(2). Further, the BC 1996 Act only permitted appeals(whether by agreement or with leave), on questions of law, unless it was a family law dispute. The Act contemplates an appeal right onquestions of law, fact or mixed fact and law (the latter two only if in the arbitration agreement). The broader scope of potential appeal inthe Act may affect whether the Legislature intended to adopt an appellate standard of review versus an administrative law standard, or

something else. The standard of review for question of fact or mixed fact and law were not before the Supreme Court of Canada in Sattva or Teal Cedar , but they are before me in this case; and (

d) Sattva and Teal Cedar appear to be applicable only to commercial arbitration, which was a concept specifically dealt with in the BC 1996 Act . That is, the BC 1996 Act differentiated treatment between arbitrations involving commercial agreements and arbitrations related to family disputes. As noted above, the Act applies to all domestic arbitration agreements in Alberta, which could involve or affect a multitude of other potential participants or stakeholders to whom the correct application of the law will be important.

In my view, the Act must be interpreted having regard to all arbitrations to which it might apply. The inclusion of non-commercial arbitrations in the appeal provisions in the Act further weakens the persuasiveness of Sattva and Teal Cedar and weakens the argument for a deferential standard on legal issues. [ 67 ] I proceed on the basis that I am not strictly bound by Sattva and Teal Cedar , and continue to be bound by Nilsson .

Having said that, unless they are overtaken by Vavilov (discussed below), those decisions are nonetheless highly persuasive decisions of the Supreme Court of Canada supporting a deferential reasonableness standard of review on arbitration appeals on questions of law. f. Vavilov and Wastech [ 68 ] In Vavilov , the Supreme Court of Canada revised the standard of review analysis for administrative tribunal decisions. It departed from the framework in Dunsmuir and Alberta (Information and Privacy Commissioner) , upon which Sattva relied.

The Court focussed on the legislature’s “institutional design choices”, including the existence of a statutory appeal: Vavilov at para 36 .

It held that, in the administrative law context, the existence of a statutory appeal “was understood to be a key factor indicating that the legislature intended that a less deferential standard of review be applied, and further that it signalled the legislature’s intent that the court is to perform an appellate function with respect to a decision, and that the appellate standard of review applied”: Vavilov at paras 36-37 and 41 . [ 69 ] The Court did not specifically address statutory arbitration appeals, but stated that there is “no convincing reason to presume that legislatures mean something entirely different when they use the word “appeal” in an administrative law statute than they do in, for example, a criminal or commercial context”: Vavilov at para 44 .

The Court accepted that the word “appeal” refers to the same type of procedure in all these contexts, and that this accorded with the presumption of consistent expression according to which the legislature is presumed to use language such that the same words have the same meaning both within a statute and across statutes: Vavilov at para 44 .

The Court noted that an appellate standard of review for statutory appeals gives meaning to the legislature’s decision to sometimes include both an appeal right and a judicial review right in the same statute—if they were treated with the same standard of review, the appeal right would be redundant: Vavilov at para 45 . [ 70 ] Since Vavilov , courts and commentators have wrestled with the impact, if any, that Vavilov had on Sattva and Teal Cedar and the standard of review for arbitrations: Levi Graham, Brendan MacArthur-Stevens and Mitchell Folk, “A Eulogy for Arbitral Deference?

The Standard of Review for Private Arbitration Post-Vavilov” (2022) 35 Can J Admin L & Prac 205; James Plotkin and Mark Mancini, “Inspired by Vavilov, Made for Arbitration: Why the Appellate Standard of Review Framework Should Apply to Appeals from Arbitral Awards” (2021) 2:1 Can J Com Arb; Paul Daly, “Unresolved Issues After Vavilov” (2022) 85 Sask L Rev 89 at 22-26.; Joel Richler, “A Second Kick: Appeals In Canadian Domestic Commercial Arbitration” (2021) 51 Adv Q 342. [ 71 ] The uncertainty was crystallized in Wastech , another case dealing with the BC commercial arbitration legislation.

In Wastech , the majority noted, at para 45, the emphasis in Sattva and Teal Cedar that “deference serves the particular objectives of commercial arbitration” but left the effect of Vavilov on Sattva and Teal Cedar for another day. The concurring minority opined that Vavilov had displaced some of the reasoning in Sattva and Teal Cedar on the standard of review, noting that the factors that justify deference to arbitrators were not relevant to the interpretive exercise respecting the statutory appeal right.

Everyone will have to wait for further clarification, and in the meantime provincial courts are divided on, or deferring, the issue. [ 72 ] To date, The British Columbia Court of Appeal has not directly addressed the issue: see, for example: Escape 101 Ventures Inc v March of Dimes Canada , 2022 BCCA 294 at para 99 ; Nolin v Ramirez , 2020 BCCA 274 at para 39 ; lululemon athletica canada inc v Industrial Color Productions Inc , 2021 BCCA 108 at para 33 .

However, several recent British Columbia Supreme Court decisions have held that they continue to be bound by Sattva and Teal Cedar given they dealt with the BC legislation and they have not been overruled: Spirit Bay Developments Limited Partnership v Scala Developments 2021 BCSC 1415 at paras 57-59 ; Grewal v Mann , 2022 BCSC 555 at paras 9-11 ; Goel v Sangha , 2022 BCSC 1476 . [ 73 ] In Ontario, the Court of Appeal has also not yet had to address the issue in a non-statutorily mandated arbitration: see Ontario First Nations

(2008) Limited Partnership v Ontario Lottery and Gaming Corporation , 2021 ONCA 592 at para 37 .

There is conflicting authority arising out of statutorily-mandated arbitrations and in Ontario lower court decisions, with several courts adopting an appellate standard of review and others rejecting it: Continental Casualty Company v Chubb Insurance Company of Canada , 2022 ONCA 188 at paras 46-47 ; The Dominion of Canada Insurance Company v Trafalgar Insurance Company , 2022 ONSC 4270 at 63; D Lands Inc v KS Victoria and King Inc , 2022 ONSC 1029 at para 64 ; Allstate Insurance Company v Her Majesty the Queen , 2020 ONSC 830 at para 21 ; Kumer v MTCC No 755 , 2021 ONSC 1181 at para 34 ; Ontario First Nations

(2008) Limited Partnership v Ontario Lottery And Gaming Corporation , 2020 ONSC 1516 at paras 61-75 ; Serbcan Inc v National Trust Company et al , 2022 ONSC 2644 at para 15 ; Pace Law Firm v Somogyi , 2021 ONSC 7421 at paras 41-56 ; Le v Nguyen , 2022 ONSC 6265 at paras 11-14 . [ 74 ] The only appellate decision directly addressing the standard of review in an appeal from a non-statutorily mandated arbitration, since Vavilov , is Northland Utilities (NWT) Limited v Hay River (Town of) , 2021 NWTCA 1 [ Northland Utilities ]. The Northwest Territories Court of Appeal interpreted

section 27 of the Arbitration Act , RSNWT 1988, c A-5 [ NWT Act ], which only provided a statutory right of appeal if it was agreed to by the parties. The NWT Act did not allow for appeals without the agreement of the parties, and so did not have a provision like section 44(2) of the Act (or 31(2) of the BC 1996 Act ). [ 75 ] The Court examined the reasons given in Vavilov to determine whether the same reasoning would apply to a statutory appeal from an arbitrator’s decision such that Vavilov is to be applied to commercial arbitration appeals. The Court relied on Vavilov for the

point that the existence of the statutory appeal mechanism was an indication of legislative intent to employ the appellate standard of review, as well as the logic that an appeal should mean the same in the commercial context as in the administrative law context: Northland Utilities at paras 38-40 . It concluded that the revised standard of review framework described in Vavilov applied as a result of the right of appeal given by the statute: Northland Utilities at para 44 . [ 76 ] In Alberta, the Court of Appeal has not yet considered the standard of review in a

section 44 arbitration appeal since Vavilov : see Moffat v Edmonton (City) Police Service , 2021 ABCA 183 . Alberta Court of King’s Bench decisions are split.

Some have held that Vavilov did not overrule Sattva and Teal Cedar , and apply the Sattva deferential standard, or have otherwise implied that the reasonableness standard continues to apply, both in section 44(1) and 44(2) appeals: Cove Contracting Ltd v Condominium Corporation No 012 5598 (Ravine Park) , 2020 ABQB 106 at paras; 6-12; Ong v Fedoruk , 2022 ABQB 557 at para 31 ; Athan Homes Inc v Phan , 2021 ABQB 119 at paras 31 ; MAS v CGL , 2022 ABQB 281 at para 4 .

Other cases have expressly held that Vavilov modified the standard of review for arbitration appeals and have applied the appellate standard of review or have otherwise implied that the appellate standard of review now applies, at least in the context of section 44(2) of the Act : 719491 Alberta Inc v The Canada Life Assurance Company , 2021 ABQB 226 at paras 60-63 ; Alvarez v Alvarez , 2021 ABQB 717 at para 14 . [ 77 ] In all of these circumstances, there is no binding appellate decision respecting the application of Vavilov to arbitration appeals, or with respect to its impact, if any, on Sattva and Teal Cedar .

However, I find Northland Utilities persuasive. Further, while the statements in Vavilov do not directly deal with arbitration appeals, and the Court did not mention Sattva or Teal Cedar in the decision, it seems to me that the Court’s reasoning would apply to any statutory appeal right, including arbitration appeals, as contemplated in the concurring obiter comments in Wastech . I cannot ignore the strong statements in Vavilov about the legislative intent associated with the Legislature’s choice in the Act to create a statutory appeal and the presumption of consistent expression: Vavilov at para 44 .

In my view, the presumption is not rebutted in respect of the

section 44 of the Act —rather, the context and legislative history is consistent with the presumption. g. Appellate Standard of Review Does not Undermine the Purpose or Objects of the Act [ 78 ] Courts must support the legislative intention of the Act to promote and support arbitrations, as mandated by our Court of Appeal in EPCOR Power LP , ENMAX 2022 and other cases.

However, in my view, this must not be confused with, or morphed into, a requirement that a deferential standard of review on legal questions must be employed on an appeal to achieve the legislative intention. [ 79 ] I interpret the Court of Appeal decisions in Nilsson , and its later guidance in EPCOR Power LP and ENMAX 2022 , to mean that the various purposes of the Act , including efficiency, limited judicial intervention, and finality, are not undermined by an appellate standard of review.

That is, an appellate standard of review and limited judicial supervision in accordance with the Act are not necessarily mutually exclusive concepts. See also: Northland Utilities at para 42 ; Wastech at paras 117-121. [ 80 ] The Act includes numerous other provisions which set the limits of judicial intervention, including

section 6 (court intervention limited), section 17(1) (which allows arbitrators to rule on their own jurisdiction), section 17(2) (allowing the arbitrator to determine questions of law that arise during arbitrations); section 20(1) (allowing the arbitrator to determine procedure);

section 21 (allowing the arbitrator to determine how evidence is admitted and not binding arbitrators to rules of evidence or any other law applicable to judicial proceedings);

section 37 (binding nature of awards); section 44(2) (the leave requirement for a non-consensual statutory appeal, as recently confirmed in Esfahani 2022 ); section 44(3) (restriction on appeals on a question of law that the parties expressly referred to the arbitral tribunal for decision); and

section 45 (limited additional grounds for setting aside awards). [ 81 ] An appellate standard of review may actually better promote the purposes of the Act , and may provide more certainty to future arbitrations on the standard of review than those based on the evolving and changing administrative law standard of review framework: Northland Utilities at para 42 . It will not necessarily open litigation floodgates: Northland Utilities at para 41 . [ 82 ] Finally, parties can also exercise their rights of party autonomy. They can choose not to include appeal rights voluntarily under section 44(1) .

They may attempt to contractually choose a more deferential standard of review than the appellate standard of review, or seek to exclude the application of law as the basis for decision-making—neither of these scenarios are before me and I make no comment as to whether such agreements would be enforceable or the effect they may have on section 44(2) of the Act .

Ultimately, parties resisting non-consensual statutory appeals can oppose leave applications under section 44(2) of the Act , or otherwise attempt to engage the other provisions in the Act . [ 83 ] On balance, I am not satisfied that an appellate standard of review in arbitration appeals under the Act undermines the purpose or objects of the Act . [ 84 ] Ultimately, it is for the Legislature to amend or update the Act to further limit judicial intervention, if it sees fit to do so as a matter of policy. It is not the role of the courts.

For example, British Columbia recently amended its legislation to provide that leave to appeal applications and appeals would be heard directly by the Court of Appeal: Arbitration Act , SBC 2020 c 2 at

section 59 . I note that 9 years ago, the ALRI recommended repealing section 44(2) to make the Act similar to those in Nova Scotia and the Northwest Territories, such that “the only appeal route to the courts will be by agreement of the parties”: Alberta Law Reform Institute, Arbitration Act: Stay and Appeal Issues Final Report 103 (2013) at 44. 3.

Conclusion re Standard of Review [ 85 ] Based on the foregoing, I proceed to consider this Appeal using the appellate standard of review, namely: (1) the standard of review for statements of law or conclusions on issues of law, is correctness; (2) the standard of review on findings of fact, including inferences of fact, are reviewed for manifest error or palpable and overriding error; (3) the standard of review for mixed fact and law is palpable and overriding error unless there is an extricable question of law; Nilsson at para 37 ; Flock Estate v Flock , 2022 ABCA 229 at para 19 ; Moffat at para 42 ; Housen v Nikolaisen , 2002 SCC 33 at paras 8 , 10, 26-39. [ 86 ] Matrimonial property cases involve the exercise of discretion and require considerable deference: Toliver v Koepke , 2013

ABCA 304 at para 13; GR v CM, 2003 ABCA 268 at para 16. Appellant intervention is only warranted if the decision-makermisdirected itself on or misapprehended the facts, if the decision is so clearly wrong as to amount to an injustice, or if there is an error inlaw: Morton v Morton, 2008 ABCA 144 at para 4; Smith v Smith, 2016 ABCA 376 at para 14. B. Procedural Fairness under section 44(1) of the Act [87] This Appeal is unique because Samimi confirmed in his argument that he only appeals the Award under section 44(1) of theAct. However, he raises procedural fairness and natural justice issues, which are more often raised in the context of

section 45 of the Act.Further, Samimi relies on the Arbitrator’s procedural decisions before the Hearing, which were not appealed. [88] Accordingly, with respect to procedural fairness I address these issues: (1) whether allegations of breaches of proceduralfairness or breaches of natural justice can be raised in a

section 44 appeal under the Act; (2) whether an appellant can rely on proceduraldecisions made prior to an arbitration hearing that were not appealed; and (3) the appropriate test for reviewing allegations of proceduralfairness in an arbitration under the Act. 1. Can Procedural Fairness be Raised in a

Section 44 Appeal? [89]

Section 20 of the Act provides that the arbitral tribunal may determine the procedure to be followed in the arbitration. Section19 of the Act provides that an arbitral tribunal shall treat the parties equally and fairly, and that each party shall be given an opportunityto present a case and to respond to the other parties’ cases. Section 45(1)(

f) of the Act further enshrines the right of a party to be protectedfrom violations of the principles of natural justice, through the court’s discretionary power to set aside an award if the applicant wastreated manifestly unfairly and unequally, or was not given an opportunity to present a case or to respond to another party’s case: Flock vFlock, 2007 ABQB 307 at para 48, aff’d 2007 ABCA 287; ENMAX 2022 at paras 25-26. [90] Sections 44 and 45 of the Act have different objectives or focusses, with a

section 44 appeal said to be focussed on errors oflaw and challenging the tribunal’s judgment, and a

section 45 application said to be focussed on procedure and challenging the validityof the arbitral process, the result of which takes away the fundamental underpinning of the award: ENMAX 2022 at para 24, citing J.Brian Casey, Arbitration Law of Canada: Practice and Procedure, 3rd ed (New York, JurisNet, LLC, 2017) at page 508; Capital Powerat para 53. [91] In many cases, a party seeks to challenge an arbitration award on procedural fairness grounds, usually relying on

section 45 ofthe Act even if they are also appealing the award: Flock; Capital Power; ENMAX 2022; Lutzak v Medisystem Technologies Inc, 2016ABQB 258 at paras 66-70; Ary Home Inc v Triple-A Classic Homes Ltd, 2017 ABQB 510; Ostergaard v Uhl, 2020 ABQB 789;Mitchell v Mitchell, 2019 ABQB 420; Arnason v Arnason, 2011 ABQB 393; Clark v Untershultz, 2020 ABQB 338. [92] Some courts have interpreted the scope of the errors that can be relied on in sections 44 and 45 restrictively to avoid thefrustration of the purpose of the Act. For example, in Flock, at para 67, Justice Horner held that the existence of the two distinctprovisions limits the remedies for errors in the nature of those listed in

section 45 and it limits the ability to vary an award on appeal toerrors not listed in

section 45. In Capital Power, at para 54, Chief Justice Wittmann held that section 45(1)(

g) could not be used tochallenge an award alleging any errors of law which are contemplated under

section 44, as that would render meaningless

section 44 andcircumvent the requirement of leave to appeal under section 44(2). The Court of Appeal in ENMAX 2022, at para 37, has noted thatsection 45 of the Act is not a substitute for an appeal. [93] While I agree that the Act must be interpreted in a way that is internally consistent and avoids frustration of its objects, and Iagree with these specific decisions, I do not believe they stand for the broad proposition that matters of procedural fairness or naturaljustice can never be raised in an appeal under

section 44 of the Act. That was not the specific question before the courts in CapitalPower, Flock or ENMAX 2022. Other cases appear to have considered procedural fairness grounds in the context of a

section 44 appealor its equivalent: CRW v SJA, 2018 ABQB 1041; Petersoo v Petersoo, 2019 ONCA 624; Lui v Longay (2000), 256 AR 376, (Alta QB) at para 17; TR Canada Inc v Cahill Industrial Limited, 2021 ABQB 274; Clark v Unterschultz, 2020 ABQB338 at paras 11, 90-107; Singh v Modgill, 2022 ABQB 369 at para 56. In my view, cases that allow procedural fairness grounds to beraised in a

section 44 appeal or permission application are consistent with a proper

interpretation of

section 44 of the Act. [94] Questions of procedural fairness and natural justice have often been treated as “questions of law”: Law Society ofSaskatchewan v Abrametz, 2022 SCC 29 at paras 26-30; CUPE v Ontario (Minister of Labour), 2003 SCC 29 at para 100; Ellis-DonLtd v Ontario (Labour Relations Board), 2001 SCC 4 at para 65; Carbone v McMahon, 2020 ABCA 328 at para 18; Conway vZinkhofer, 2008 ABCA 392 at para 32. [95] Further, the Court of Appeal has consistently held procedural fairness to be a question of law in the context of numerous otherstatutory appeal regimes which provide an appeal right subject to permission to appeal on questions of law similar to section 44(2) of theAct.

A few examples include: Sharma v Edmonton (Police Service), 2019 ABCA 501 at para 8 (permission to appeal from Alberta LawEnforcement Board); Stubicar v Calgary (Subdivision and Development Appeal Board), 2022 ABCA 299 at para 46 (permission toappeal under the Municipal Government Act, RSA 2000 c M-26); Platner v Platner, 2010 ABCA 342 at para 8 (permission to appeal aCourt of Queen’s Bench decision granting an appeal of a provincial court decision); Rana v Rana, 2019 ABCA 278 at para 20(permission to appeal a refusal to restore appeal); and Milner Power Inc v Alberta Utilities Commission, 2019 ABCA 127 at para 16(permission to appeal an Alberta Utilities Commission decision).

This is consistent with other jurisdictions: see, for example MylanPharmaceuticals ULC v Pfizer Canada Inc, 2012 FCA 103 at para 24 (patented medicines appeal); Shephard v Fortin, 2004 FCA 254at para 20 (RCMP commissioner appeal); Waraich v Director of Employment Standards, 2020 MBCA 76 at para 11 (provincial courtappeal); Canadian Pacific Railway Company v Cambridge (City), 2019 FCA 254 at para 6 (Canadian Transportation Agency appeal);Krishna v Alexandra Park Co-operative, 2022 ONSC 92 at para 21 (Landlord and Tenant Board appeal); Chong v Wan et al, 2014MBCA 35 at para 15 (Residential Tenancies Commission appeal); Navid Bhatti v Canada (Citizenship and Immigration), 2010 FC 25at para 15 (citizenship judge appeal).

[96] While I acknowledge that sections 44 and 45 have different purposes, I find that allegations that an arbitrator under the Actbreached principles of natural justice, failed to provide appropriate procedural fairness to an arbitration party, or breached

section 19 ofthe Act, give rise to questions of law which can be relied on in an appeal or proposed appeal under

section 44 of the Act. However, thisdoes not mean that an appellant can circumvent the deference owed to arbitrators on procedural matters, which I discuss later in theseReasons. 2. Can an Appellant Rely on Pre-Hearing Procedural Decisions? [97] Esfahani asserts that much of Samimi’s complaints relate to process decisions made prior to the Arbitration, in particular theJuly 22 Decision, which were not appealed. She suggests Samimi should have appealed those decisions and implies that he cannotchallenge or rely on them now.

I disagree. [98] Sections 44 and 45 of the Act contemplates an appeal, or an application to set aside, an “award”, which is not defined.However, it is apparent from the usage of the term “award” in the Act that it relates to a decision on a “matter in dispute” or “matters indispute”.

Section 31 provides that an arbitral tribunal shall decide a matter in dispute in accordance with law, including equity, and mayorder specific performance, injunction and other equitable remedies.

Section 41 of the Act provides that an arbitral tribunal may make“interim awards” or more than one final award, disposing of one or more matters in dispute referred to arbitration in each award. Section42(1)(

a) of the Act provides that one way for an arbitration to terminate is if the arbitral tribunal makes a final award or awards inaccordance with the Act, disposing of “all matters in dispute referred to arbitration”. [99] A “matter in dispute” or “matters in dispute” are also not defined in the Act.

In my view, the Act intends a matter or matters indispute to be the substantive issues in dispute between the parties that have been submitted to arbitration: see sections 7(5), 24, 31, 32,33, 35, 36, 42 and 45(3). [100] Under the Act, awards on matters in dispute are distinguished from other determinations or directions made by arbitrators.

Forexample, the Act provides that the arbitral tribunal may “determine” the procedure to be followed in the arbitration (section 20), themanner in which evidence is to be admitted (section 21(2)), the time, date and place of the arbitration (section 22(1)), or the appointmentof an expert to report on specific issues (section 28).

Further, the arbitral panel may make procedural directions (section 25) which mustbe followed by the parties. [101] In my view, procedural determinations or directions are not interim or final “awards” under the Act, regardless of whether theymay be labelled as an award by the arbitrator. As a result, procedural determinations or directions cannot independently be the subject ofan appeal under

section 44 of the Act or an application to set aside under

section 45 of the Act: Suncor Energy Inc v Alberta, 2013ABQB 728 at paras 24-26; Inforica Inc v CGI Information Systems and Management Consultants Inc, 2009 ONCA 642 at paras 18and 29; Environmental Export International of Canada Inc v Success International Inc, (ON SC), 123 DLR (4th)147, 23 OR (3d) 137 at paras 13-14; Mathieu v JR Stephenson Mfg Ltd, 2013 MBQB 64 at para 56; Converaidem, Inc v Mulcahy,2020 ONSC 6747 at paras 27-29; Nasjjec v Nuyork, 2015 ONSC 4978 at para 131; 1107051 Ontario Ltd v GG Kingspa EnterprisesLimited Partnership, 2022 ONSC 1847 at para 31. [102] This conclusion is consistent with the purpose of the Act, namely to limit judicial intervention, to promote efficiency and toprovide a faster and less expensive process to resolve disputes: ENMAX 2022 at para 29; Peace River Hydro Partners v PetrowestCorp, 2022 SCC 41 at paras 10 and 46.

An

interpretation of the Act that allows, or even worse requires, separate appeals on interlocutoryprocedural determinations or directions would completely undermine these legislative purposes by creating delay, bifurcatedproceedings, and litigation by instalment.

The Court of Appeal will not hear appeals from interlocutory or preliminary procedural rulings,or rulings part way through, administrative or court proceedings except in rare and exceptional circumstances, in part because in mostcases disagreement with a preliminary or interim procedural ruling can be a ground for the appeal of the final decision, or is bestdetermined following the full hearing: Tahn v Law Society, 2021 ABCA 139 at para 7; Zacharuk v Edmonton (City) Police Service,2021 ABCA 314 at para 8; Rana v Rana, 2022 ABCA 14 at para 13; Hugo v Ewashko, 2022 ABCA 110 at para 17.

The rationale fordiscouraging appeals of interlocutory or interim procedural determinations or directions applies with even greater force in privatearbitrations. [103] Different considerations may apply where an arbitral decision deals with the substantive issues that have been referred toarbitration, for example where an arbitrator determines a preliminary issue of law, or grants an award akin to

summary judgment. Inother instances, it will not always be clear whether a decision is procedural or substantive, and the characterization will be dependent onthe circumstances and context of the decision. Sometimes, an arbitrator may refuse to grant interlocutory or final substantive relief.

Ileave these various nuances to another day as the decisions by the Arbitrator relied on by Samimi in this case were clearly procedural innature. [104] In this case, the Arbitrator made several procedural determinations and directions prior to the Hearing, as she was entitled to dounder the Act and under the Arbitration Agreement. Several of these decisions included the word “award” in their title, for example“Process Arbitration Award” or “Interim Applications Award”.

But this is a matter of form over substance—an arbitrator cannot make aprocedural determination or direction an “award” contemplated under the Act simply by labelling it that way. To avoid confusion, itwould be preferable if procedural determinations or directions are not labelled as awards but as procedural decisions or directions underthe Act. [105] Samimi did not have the right, let alone the obligation, to appeal earlier procedural rulings, regardless of their title.

In his appealon the substantive merits of the Award, and in challenging the procedural fairness in this Appeal, he is entitled to rely on the Arbitrator’sprocedural decisions to the extent they affected or formed part the Arbitration or Hearing process. 3. The Required Procedural Fairness in Arbitrations under the Act [106] Broadly speaking, issues of procedural fairness require determining whether the standard of fairness required by law in thecircumstances has been met: Nadarasah v Uthayakumar, 2022 ABCA 119 at para 20; Baron Real Estate Investments Ltd v Edmonton

(City), 2021 ABCA 64 at para 17; Moreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 at para 74; ENMAX EnergyCorporation v TransAlta Generation Partnership, 2019 ABQB 486 at para 76 [ENMAX 2019].

Sometimes this is described as acorrectness review, in the sense that the reviewing court will not give any deference: Baron Real Estate at para 17; Esfahani (2022) atpara 11; FJN v JK, 2019 ABCA 305 at para 46. [107] However, care must be taken before applying concepts from court or administrative processes to arbitrations: see: PremiumBrands Operating GP Inc v Turner Distribution Systems Ltd, 2011 BCCA 75 at para 43.

In my view, it is preferable not to confuse theprocedural fairness analysis by referring to a “correctness” review on the required procedural fairness in arbitrations under the Act, whichmight imply that no deference is given to the arbitrator’s procedural choices, when in fact arbitrators enjoy a “broadened latitude” onprocedural matters: ENMAX 2019 at para 76. [108] In the administrative law context, the duty of procedural fairness is variable, flexible and context specific—the Supreme Courtof Canada, in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at paras 22-23(and adopted in Vavilov at para 77) has set out a non-exhaustive list of factors that inform the content of the duty of procedural fairnessin a particular case, including (1) the nature of the decision being made and the process followed in making it; (2) the nature of thestatutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of theperson challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself.

Some courts haveapplied or borrowed aspects from Baker in assessing matters of procedural fairness in the arbitration context: ENMAX 2022 at para 143;Ostergaard v Uhl, 2020 ABQB 789 at para 47; Walston v Eminger, 2008 SKQB 204; Charlottetown Equities Ltd v CharlottetownAirport Authority Inc, 2020 PESC 41 at para 60; Saskatchewan (Highways) v West-Can Seal Coating Inc, 2022 SKQB 43 at para 41. [109] It has also been stated that the test for determining the required natural justice or procedural fairness in arbitrations requires areview of (1) the subject-matter of the dispute; (2) the circumstances of each case; (3) the nature of the inquiry; and (4) the rules underwhich the parties have agreed to arbitrate their dispute: ENMAX 2022 at para 46; Ary Homes at para 45; 0927613 BC Ltd v 0941187 BCLtd, 2015 BCCA 457 at paras 59-60. [110] These various factors are all relevant.

It is not necessary to provide an exhaustive list, as arbitral procedural fairness is fact andcontext specific: ENMAX 2022. However, it is critical to recognize the unique aspects of arbitrations which distinguish them fromadministrative or judicial processes.

As noted in ENMAX 2022 key factors include: (1) recognizing the purpose of the Act to limitjudicial intervention; (2) recognizing party autonomy to design their own procedures; (3) fostering a more expeditious and less costlyresolution of matters; (4) recognizing the statutory scheme, which provides wide discretion to arbitrators to make proceduraldeterminations and directions under

section 20 of the Act, while only allowing awards to be set aside for manifest unfairness; and (5)giving meaning to the standards of equality and fairness under

section 19 of the Act. [111] Natural justice requirements in arbitration have been broadly stated to require the arbitrator to act in good faith (or, statedotherwise, to be unbiased), fairly listen to both sides, and to give a fair opportunity to those who are parties to make representations,including to correct or to contradict any relevant statement prejudicial to their view: ENMAX 2022 at para 46; Ary Homes at para 45. [112] However, the idea of compromising some level of procedural fairness in exchange for increased efficiency and finality ofresolution through arbitration is well established: Ostergaard at para 49; ENMAX 2019 at para 80.

As noted by the Court of Appeal inENMAX 2022, at para 66: Several principles may be extracted from this review of the jurisprudence. First, parties to an arbitration are entitled to a fair hearing, nota perfect hearing. Second, the overall fairness of the proceedings must be considered, not individual rulings. Third, parties must takeadvantage of and exercise diligence in pursuing issues and cannot later complain of some perceived unfairness resulting from theirfailure to do so. Fourth, not every refusal to admit relevant evidence is a breach of natural justice.

Fifth, the threshold for setting aside anarbitration award on grounds of unfairness has been described in various ways, but the cases make it clear that something of a significantnature is required, or that the excluded evidence was crucial to the case being presented. [113] Accordingly, courts should only intervene in cases of the most egregious procedural breaches — the arbitrator’s conduct mustbe sufficiently egregious to offend basic notions of morality and justice: ENMAX 2022 at para 52.

This means that it is appropriate for acourt to give deference to the procedural choices of the arbitration panel, subject to the requirements of

section 19 and 45(1)(

f) that thosechoices not result in “manifest unfairness” to the parties or deprive a party the opportunity to present its case. [114] In my view, although ENMAX 2022 was a case under

section 45 of the Act, the same deferential approach should apply inassessing the required procedural fairness in an appeal under

section 44 of the Act. There is no indication that the Legislature intendedfairness to be treated differently simply due to the remedy chosen by the party challenging the award. Further, a consistent approachensures that a party cannot avoid the “manifest unfairness” requirements of section 45(1)(

f) simply by characterizing their challenge asan appeal. It is consistent with other decisions that prevent circumventing the intent of the Act through litigation tactics: Flock; CapitalPower. [115] Accordingly, borrowing from ENMAX 2022 and having regard to the principles it extracted, in my view the requiredprocedural fairness under

section 44 of the Act is that which is chosen by the parties or the arbitral tribunal, provided that those choicesdo not offend sections 19 and 45(1)(

f) of the Act by resulting in manifest unfairness to the parties or by depriving a party the opportunityto present its case. C. The Record and the Samimi 2021 Affidavit [116] Esfahani took issues with the record relied on by Samimi in this appeal in two respects:

(1) Samimi failed to produce the entirerecord of the arbitration; and

(2) Samimi attempted to rely on an affidavit on appeal that was not before the Arbitrator. 1. Appropriate Record

[117] The arbitration hearing was three days. It was transcribed. Significant volumes of affidavits, exhibit books, and proposedexhibits were before the Arbitrator. The parties were extensively cross-examined. [118] Esfahani’s initial main objection with Samimi’s appeal record was that Samimi only filed excerpts of the transcript but wasobliged to provide the entire transcript and record before the Arbitrator. Esfahani’s argument was based on her assertion that anarbitration appeal was a judicial review, relying on Rule 3.18 and a case that involved an application to set aside an arbitration awardunder

section 45 of the Act, not an appeal under

section 44: Mitchell v Mitchell, 2019 ABQB 420. [119] In my view, the Rules relating to records on judicial reviews do not necessarily apply to an arbitration appeal. While an appealinvolves a judge “reviewing” an arbitration decision on appeal, it is not a “judicial review” as understood and applied in administrativelaw. It is important not to equate judicial review of administrative tribunal decisions and private arbitration appeals.

They are different,with the former being a public law concept concerning the relationship between the administrative state and courts, and engaging acommon law right of judicial review; and the latter involving a statutory right to appeal or set aside an award of a consensual tribunalexisting only due to the will of the parties: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26at paras 13-14; Roberval Express v Transport Drivers Union, (SCC), [1982] 2 SCR 888 at 893-94; Knox vConservative Party of Canada, 2007 ABCA 295 at paras 14-20; Altarose Construction at para 20. [120] Neither the Act nor the Rules of Court expressly describe what the appeal record must contain or what should be put before thecourt on an arbitration appeal.

An arbitration appeal is not a trial de novo and should be considered on the same basis as would an appealfrom a judgment of the Court of King’s Bench to the Court of Appeal: Canadian Crude Separators Ltd at para 31. Accordingly, whilesome of the Rules governing appeals to the Court of Appeal pursuant to

Part 14 of the Rules of Court can provide some guidance, theydo not directly apply to King’s Bench arbitration appeals. The strict application of Court of Appeal type procedures to an arbitrationappeal may create unnecessary procedural formalities not helpful to an arbitration appeal. This Court maintains discretion and flexibilityto deal with a variety of arbitration processes on appeals before it. [121] Not all arbitrations will have transcripts or formal pleadings. Where a transcript of the arbitration proceedings exists, or wheredocuments in the nature of the “Pleadings” or “Final Documents” exist, similar to those described in Rule 14.16, Rule 14.18(1)(

b) and (c)and Rule 14.20(a), they should usually be provided to the Court. However, unle

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