2023 MBCA 76, 2023 MBCA 76

Citation: Christie Building Holding Company, Limited v Shelter Canadian Properties Limited, 2023 MBCA 76 Date: 20230912 Docket: AI23-30-09899 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) J. I. Jardine CHRISTIE BUILDING HOLDING ) for the Applicant COMPANY, LIMITED ) (Applicant) Applicant ) G. A. Stefanson and ) C. G.

Parker - and - ) for the Respondent ) SHELTER CANADIAN PROPERTIES ) Chambers motion heard: LIMITED ) April 20 , 2023 ) (Respondent) Respondent ) Decision pronounced: ) September 12, 2023 LEMAISTRE JA Introduction [ 1 ] The applicant brought applications in the Court of King’s Bench for leave to appeal (the leave applications) two commercial arbitration awards and to set aside (the application to set aside) (collectively, the applications) part of the arbitration award made on June 17, 2020 (the first arbitration award) pursuant to the provisions of The Arbitration Act , CCSM c A120 (the Act ).

The judge dismissed the applications. [ 2 ] The applicant seeks leave to appeal the judge’s dismissal of the applications pursuant to

section 48 of the Act . [ 3 ]

Section 48 provides for an appeal to this Court with leave: Further appeal to Court of Appeal 48 An appeal from the court’s decision in an appeal of an award, an application to set aside an award or an application for a declaration of invalidity may be made to The Court of Appeal, with leave of that court. [ 4 ] The applicant argues that the judge acted on a wrong principle when he limited the record for the leave applications and, therefore, he erred by mistakenly declining jurisdiction.

It also argues that, in refusing the application to set aside, the judge made errors of law with arguable merit that are of sufficient importance to be considered by a panel of this Court. [ 5 ] For the reasons that follow, I am not persuaded that the judge declined jurisdiction or made any error of law warranting leave to appeal.

Background [ 6 ] The factual background to this leave motion is comprehensively set out in the judge’s reasons regarding what would constitute the record for the purposes of the leave applications (see 2021 MBQB 77 at paras 1-30 [ Christie #1]) and his reasons for dismissing the applications (see 2022 MBKB 239 at paras 1-26 [ Christie #2]). The facts that provide context for these reasons are as follows. [ 7 ] The parties entered into an agreement (the development agreement) involving the construction and redevelopment of property in the City of Winnipeg (the project).

Part of the property was intended to be used by the Winnipeg Regional Health Authority (WRHA) under a lease agreement.

Section 16 of the development agreement provided for resolution of disputes by arbitration (the arbitration clause). After the project was completed, both parties claimed that the other party had breached the development agreement.

Pursuant to the arbitration clause, an arbitrator was appointed to determine the issues in dispute. [8] At what proved to be a lengthy and contentious hearing, the parties decided not to have a court reporter attend thehearing and prepare a transcript. As a result, there is no transcript of the arbitration hearing.

In addition, although they provided thearbitrator with printed copies of specific documents referred to at the hearing, the parties filed and marked as exhibits only five of thosedocuments. [9] After the hearing, the arbitrator made the following awards: 1) to [the applicant] – the sum of $2,500.00 representing its costs to discharge [a] builder’s lien, plus interest yet to be determined; 2) to [the respondent] the sums of: (a) $1,977,700.00 as damages for [the applicant’s] failure to honour its commitment to [the respondent] . . . ; (b) $348,791.00 representing the monies paid by [the respondent] in regard to WRHA Change Orders . . . ; (c) $1,525.03 representing property management expenses; (

d) all of which total $2,328,016.03, plus interest yet to be determined. [10] When the parties were unable to settle the issues of costs and interest, they referred these issues back to the arbitratorfor determination. At the hearing to address costs and interest (the second hearing), the respondent was asked to provide particulars of aclaimed disbursement. After the second hearing, the information received by counsel for the applicant prompted her to make inquirieswith counsel for the WRHA, who provided documentation of a settlement between the respondent and the WRHA (the settlementdocuments).

The settlement documents, in part, released the WRHA from any potential claims relating to two change orders on theproject (the WRHA release). [11] After receiving the settlement documents, counsel for the applicant provided a submission to the arbitrator by email inwhich she asked him to reconsider part of the award on the basis of “new information/evidence”. In this submission, the applicantasserted that the settlement documents impugned the arbitrator’s finding that it had acted in bad faith and asked him to reverse thisfinding and his award of $348,791.34.

The applicant also asserted that the respondent wrongly withheld the settlement documents andmisled the arbitrator, and that these facts were relevant to his determination of costs. [12] In a supplemental award, in addition to determining the costs and interest payable, the arbitrator concluded that he hadno authority to amend the first award. In any event, he concluded that, even if the settlement documents had been disclosed, they wouldnot have affected his decision.

Guided by the principles in Palmer v The Queen, (SCC), [1980] 1 SCR 759, he alsoconcluded that the settlement documents would not have been admissible as new evidence because “with due diligence, this issue couldhave been explored and further documents obtained during the discovery process leading up to the arbitration hearing” and the “socalled” new evidence would not have affected the outcome of the arbitration. [13] The applicant filed the leave applications pursuant to section 44(2) of the Act and the application to set aside pursuant tosection 45(1) of the Act.

Although its pleadings relied only on section 45(1)(i), it argued that part of the award should be set aside undersections 45(1)(

f) and (g). These sections provide as follows: Appeal on question of law with leave 44(2) If the arbitration agreement (other than a family arbitration agreement) does not provide that the parties may appeal an award tothe court on a question of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant onlyif it is satisfied that (

a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and (

b) determination of the question of law at issue will significantly affect the rights of the parties. Grounds for setting aside award 45(1) On a party’s application, the court may set aside an award on any of the following grounds: . . . (

f) the applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party’s case,or was not given proper notice of the arbitration or of the appointment of an arbitrator; (

g) the procedures followed in the arbitration did not comply with this Act or the arbitration agreement; . . . (

i) the award was obtained by fraud. [14] During case management, the respondent raised concerns regarding the materials filed by the applicant in support of theapplications. The materials included an affidavit, which attached the applicant’s written argument to the arbitrator, a number ofdocuments the applicant referred to in its argument and what purported to be a transcript of some of the testimony from the hearing.

[ 15 ] After a hearing, the judge determined that the record would consist of the pleadings, the five exhibits that were marked as such during the arbitration hearing and the arbitrator’s reasons for the first award and for the supplemental award. [ 16 ] In determining the record for the applications, the judge expressed his concern about the parties’ approach to the record at the arbitration hearing and the effect that the limited record would have on his ability to decide the applications.

He stated ( Christie #1 at paras 84-85): If, for perhaps understandable reasons, the parties to a private arbitration — in the name of first blush efficiency, cost saving and finality — choose to proceed with an arbitration hearing without concern for creating or preserving some type of record that may involve an official transcription of viva voce testimony or the clear organization, accumulation and marking of exhibits, it can be expected that any ensuing lack of clarity, confusion and discrepancy will limit and complicate what is an already narrow scope for appellate review.

That is the situation in the present case. In the present case, an evidentiary record of the arbitration proceedings was not created by design. To now try to reconstruct without agreement, an accurate record after the fact and to put it before the court, is from a practical perspective, a near impossibility. Even if it could be done, it is, needless to say, an unduly expensive task.

No less concerning is the fact that such an approach could easily descend into a de facto rehearing of all of the issues that had been decided by the arbitrator with what [the respondent] accurately describes as “a finality”. [ 17 ] The applicant sought to appeal Christie #1, as well as the judge’s dismissal of its motion for a reconsideration of Christie #1 and his award of solicitor-client costs on that motion. This Court dismissed the appeal as premature (see 2021 MBCA 103 (the appeal decision)). [ 18 ] After a further hearing on the merits of the applications, the judge dismissed them (see Christie #2).

Although he stated that the limited record left him “‘disarmed’ in terms of [his] ability to meaningfully perform [his] task on [the applications]” (at para 9), he provided comprehensive reasons that carefully reviewed each of the applicant’s arguments in support of the applications. [ 19 ] The judge also expanded the record to include, among other things, the development agreement and the documents relied on by the applicant on the application to set aside. [ 20 ] In considering the leave applications under section 44(2) of the Act , the judge determined the issue to be “whether the arbitrator’s decision raises a legal question of arguable merit conferring jurisdiction on the court to review the award” ( Christie #2 at para 32).

Relying on Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 , he recognized that the applicable standard of review was relevant to the arguability of any questions of law. [ 21 ] While he acknowledged the ongoing “legitimate debate as to whether the standard of review framework reformulated by [ Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 ] applies to appeals of commercial arbitration awards” ( Christie #2 at para 82), on a preliminary assessment, he determined the applicable standard of review to be reasonableness.

In his view, Vavilov did not specifically overrule Sattva and Teal Cedar Products Ltd v British Columbia , 2017 SCC 32 , or address the standard of review for arbitrations.

He also pointed out the comments of Kasirer J in Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District , 2021 SCC 7 , who stated that he “would leave for another day consideration of the effect, if any, of Vavilov on the standard of review principles articulated in Sattva and Teal Cedar ” (at para 46). [ 22 ] Having concluded that the applicant had not raised any question of law of arguable merit, the judge determined that he need not consider the balance of the test in sections 44(2) (

a) and (

b) of the Act : whether the importance to the parties of the matters at stake in the arbitration justifies an appeal and whether determination of the questions of law at issue will significantly affect the rights of the parties. [ 23 ] The judge dismissed the application to set aside. He found that the applicant’s arguments pursuant to sections 45(1) (

f) and (

g) were not properly before the Court because they had not been pleaded as the applicant pled only section 45(1) (i), that “the award was obtained by fraud.” In any event, the judge found that the arguments were “without merit” ( Christie #2 at para 186). The Proposed Grounds of Appeal [ 24 ] The applicant did not file a proposed notice of appeal. However, it argues the following grounds in its motion brief: 1. The judge acted on a wrong principle when he limited the record for the leave applications. Therefore, he erred by mistakenly declining jurisdiction under section 44(2) of the Act . 2.

In refusing to set aside the arbitration award, the judge erred in law by finding that: a. the applicant was precluded from relying on the provisions of sections 45(1) (

f) and (

g) of the Act ; b. the arbitrator committed no due process errors; c. the onus to discover documents in the respondent’s possession was on the applicant; d. the WRHA release was not a relevant document; and e. the WRHA release was a privileged document. Leave to Appeal the Dismissal of the Leave Applications [ 25 ] There are two components to the applicant’s motion for leave to appeal. The first component relates to the judge’s dismissal of the leave applications.

[ 26 ] There is no issue that, generally, no appeal lies from a decision regarding leave to appeal under section 44(2) of the Act , unless the tribunal mistakenly declined jurisdiction (see I-NetLink Incorporated et al v Broadband Communications North Inc , 2014 MBCA 38 at para 7 ).

As explained by Beard JA in I-NetLink , “where the judge considered the leave application and rendered a decision on the merits of the application, the judge did not decline jurisdiction” (at para 12). [ 27 ] The applicant asserts two arguments in support of its position that leave to appeal the dismissal of the leave applications ought to be granted.

First, it contends that, during the appeal hearing for its appeal of Christie #1, this Court “acknowledged that [the applicant] would have a right to return to this Court to argue the issue of the record should the [judge] dismiss [its] applications.” [ 28 ] I disagree.

This Court’s reasons are clear: the appeal was dismissed because it was an interlocutory appeal and there were no exceptional circumstances warranting a departure from the Court’s “longstanding accepted practice” (the appeal decision at para 5) requiring appeals of procedural or evidentiary rulings to be addressed in the appeal from the final determination. [1] To be clear, this Court reserved the applicant’s right to raise the issues decided in Christie #1 , “ if warranted , in any subsequent appeal of the final decision” (emphasis added) ( ibid at para 7).

I agree with the respondent that, unless leave to appeal has been granted, there is no right to appeal under the Act (see

section 48 ). [ 29 ] The applicant’s second argument is that by limiting the record, the judge could not properly consider whether the applicant had established questions of law with arguable merit. Therefore, he failed to fulfill the jurisdiction provided by the Act . [ 30 ] I am not persuaded that the judge declined jurisdiction.

He carefully considered each of the applicant’s grounds of appeal and explained why, in his view, they were not questions of law with arguable merit. [ 31 ] In its motion brief, the respondent provides 15 examples from the judge’s reasons of the conclusions he reached regarding the merits of the leave applications. I agree that these conclusions demonstrate that the judge meaningfully performed his task and fulfilled his jurisdiction under the Act (see Christie #2 at paras 110-13, 115, 119, 124, 127, 141, 144, 153, 166, 173-74). A representative example of such a conclusion is ( Christie #2 at para 112): . . .

I agree with Shelter that if properly framed, many of the alleged errors raised in Christie’s materials are exclusively questions of fact or, at most, questions of mixed fact and law, none of which are subject to appellate review. [ 32 ] In my view, the judge’s reasons clearly show that he considered the leave applications on their merits. [ 33 ] I am also not persuaded that the judge acted on a wrong principle when he limited the record or that by committing such an error he declined jurisdiction (see Broadband Communications North Inc v I-Netlink Incoporated , 2018 MBCA 116 at para 13 ). [ 34 ] The judge understood the objectives of commercial arbitration and that the scope of appellate intervention is narrow.

In Christie #1 , he stated (at para 33): The key objectives of private commercial arbitration are efficiency and finality. Not surprisingly, the consequent scope of appellate intervention in commercial arbitration is comparatively narrow, limited as it is to a question of law. This limited scope for appellate intervention is seen to serve well the objectives of efficiency and finality and it is the antithesis to an invitation to a rehearing of the dispute (see Sattva , at paragraph 75; Teal Cedar Products Ltd. , at paragraph 1 ; and Wolfe et al. v. Taylor et al.; Fat Cat Farms Ltd. et al. v.

Wolfe et al. , 2017 MBCA 74 , at paragraph 74 ). [ 35 ] In determining what would constitute the record, the judge considered jurisprudence in which similar issues were raised (see, for example, Jamani v Subway Franchise Systems of Canada, Ltd , 2008 ABQB 677 , in which the parties agreed there would be no transcript of the arbitration and the leave application was decided on the face of the award because the court had no record of evidence the applicants said was given at the hearing). [ 36 ] In my view, the judge’s finding that the record disclosed no questions of law with arguable merit was, in part, a function of the parties’ approach to the litigation.

The applicant’s assertion that the judge erred by limiting the record when this was an intentional decision made by the parties is untenable. I agree with the judge’s concern that expanding the record as proposed by the applicant risked creating “an evidentiary record potentially different than what was before the arbitrator” ( Christie #1 at para 88) and risked permitting a rehearing of the arbitration by the Court. [ 37 ] It is the applicant’s onus to establish questions of law with arguable merit.

If the foundation to do so does not appear in the record, that does not permit the parties to file “affidavits containing information beyond any official record” ( Fletcher v Manitoba Public Insurance Corp et al , 2008 MBCA 56 at para 9 ), as noted by the judge. [ 38 ] In my view, the judge did not decline jurisdiction. Therefore, there is no basis to grant leave to appeal the judge’s dismissal of the leave applications.

Leave to Appeal the Application to Set Aside [ 39 ] The second component of the motion for leave involves the judge’s dismissal of the application to set aside. [ 40 ] In Wolfe , Hamilton JA explained that the threshold for leave to appeal a dismissal of an application to set aside an award, pursuant to

section 48 of the Act , is high because the appeal would be a second review of the arbitral decision. She also explained the criteria that must be established by the applicant (at paras 54-55): . . . 1. A pure question of law or jurisdiction;

2. A question of arguable merit with a reasonable prospect of success; and 3. A matter of public interest that is of sufficient importance to warrant consideration by the province’s highest court. Alternatively, in exceptional circumstances, leave may be granted if it would be judicious to do so even though one or more of the above three criteria are not met, if a denial of leave may result in an injustice.

See also Rolling River School Division v Rolling River Teachers’ Association of the Manitoba Teachers’ Society et al , 2009 MBCA 38 at paras 10-13 . [ 41 ] In Sattva , Rothstein J described arguable merit in the following way (at para 74): . . . The arguable merit standard is often used to assess, on a preliminary basis, the merits of an appeal at the leave stage (see for example Quick Auto Lease Inc. v. Nordin , 2014 MBCA 32 , 303 Man. R. (2d) 262, at para. 5 ; and R. v.

Fedossenko , 2013 ABCA 164 at para. 7 ). “Arguable merit” is a well-known phrase whose meaning has been expressed in a variety of ways: “a reasonable prospect of success” ( Quick Auto Lease , at para. 5; and Enns v. Hansey , 2013 MBCA 23 at para. 2 ); “some hope of success” and “sufficient merit” ( R. v. Hubley , 2009 PECA 21 , 289 Nfld. & P.E.I.R. 174, at para. 11 ); and “credible argument” ( R. v. Will , 2013 SKCA 4 , 405 Sask. R. 270, at para. 8 ).

In my view, the common thread among the various expressions used to describe arguable merit is that the issue raised by the applicant cannot be dismissed through a preliminary examination of the question of law.

In order to decide whether the award should be set aside, a more thorough examination is necessary and that examination is appropriately conducted by the court hearing the appeal once leave is granted. [ 42 ] Whether the proposed grounds of appeal are of sufficient importance involves consideration of whether they raise a novel or unsettled point of law or of practice and whether resolution of the issues will likely affect the determination of disputes between others (see Knight v Daraden Investments Ltd et al , 2022 MBCA 69 at para 25 ). [ 43 ] I will now consider the applicant’s proposed grounds of appeal.

As the proposed grounds of appeal are highly interrelated, I will address them together. The overriding theme of the applicant’s intended appeal is that the judge failed to recognize the unfairness in the arbitration created by two things: the lack of disclosure of the WRHA release and the arbitrator’s reference in his award to a court decision released after the hearing. [ 44 ] In the Court below, the applicant argued that the arbitration award should be set aside, pursuant to sections 45(1)(

f) and (g), because the respondent had not disclosed the WRHA release as required by the terms of the arbitration agreement and the Court’s rules, and that this prevented it from being able to question witnesses and make submissions about the WRHA release. [ 45 ] The judge rejected this contention. He noted that “the Arbitration Agreement confirmed that the parties had exchanged affidavits of documents disclosing all relevant documents and that it provided for a right of inspection over all non-privileged documents” (emphasis added) ( Christie #2 at para 187).

He also noted that the applicant spent eight days questioning the respondent’s representative on discovery.

He accepted the respondent’s submission that the settlement documents were not produced because they were irrelevant and he was of the view that, because they were the product of settlement negotiations between the respondent and the WRHA, they were privileged and presumptively inadmissible. [ 46 ] Moreover, the judge pointed out that the arbitrator found that counsel for the applicant was “aware of the dealings between [the respondent] and the WRHA when the settlement was made” and “was already in possession of or should have had sufficient information to explore these issues on discovery” ( ibid at para 192).

He also observed that the arbitrator “was not persuaded the [settlement] documents were relevant” ( ibid ). Accordingly, the judge found there was no “legitimate issue with respect to procedural fairness” ( ibid at para 190). [ 47 ] Before the judge, the applicant also argued that the arbitrator’s reliance on Rosenberg et al v Securtek Monitoring Solutions Inc , 2020 MBQB 38 [ Rosenberg QB] , for principles of contractual

interpretation was unfair because it was decided after the parties had concluded their arguments, it was subsequently overturned by this Court and it incorrectly stated the law. [ 48 ] The judge rejected this argument, concluding that it was an “alternative and indirect appeal route” ( Christie #2 at para 195) because it went to the substance of the dispute, which involved contractual

interpretation. He also concluded that the applicant had a “full opportunity” ( ibid at para 196) before the arbitrator to address the issue of whether post-contractual conduct could be used to interpret the development agreement and that the arbitrator was not required to consider only those cases provided by counsel. [ 49 ] To begin, I note that the applicant concedes that, despite the judge’s finding that the grounds for setting aside the arbitration award under sections 45(1)(

f) and (

g) were not properly before him, he did address them. However, it argues that this finding affected his decision to dismiss these grounds. [ 50 ] In my view, the judge did not preclude the applicant from relying on sections 45(1) (

f) and (g). I see nothing in the record or in the judge’s reasons that indicates that he in any way prevented the applicant from arguing that the award should be set aside under these provisions or that he failed to consider the application to set aside on the merits of the applicant’s arguments under these sections of the Act . [ 51 ] The judge understood that his function on the application to set aside was to determine whether there were any issues regarding procedural fairness. Thus, he was required to examine the circumstances alleged by the applicant to be unfair. In doing so, he

considered whether the WRHA release should have been disclosed pursuant to the terms of the arbitration agreement that is, whether it was relevant and not subject to privilege. [ 52 ] I am not convinced it is arguable that the judge erred in his finding that the WRHA release was not a relevant document by failing to apply the test for relevance or to assess relevance. The judge specifically considered whether the WRHA release had “any bearing whatsoever on the issues in dispute” ( ibid at para 188) and found that it did not.

He also considered the respondent’s argument as to why the WRHA release was not relevant, as well as the arbitrator’s view (albeit in obiter ) that it was not relevant. I am also not convinced that it is arguable that the judge erred when he found that the WRHA release was a privileged document.

The judge is presumed to know the law and his reasons must be read in the context of the issues raised and the arguments made. [ 53 ] To the extent that the judge considered the arbitrator’s view as to the WRHA release’s relevance or privilege, I disagree that he abrogated his responsibility to make his own determination; this was only one of the factors that he considered in coming to his conclusion. [ 54 ] I disagree with the applicant’s contention that the judge found that the onus to discover documents in the respondent’s possession was on the applicant.

In the context of assessing the applicant’s claim that, because it had no opportunity to question witnesses about the settlement documents, it was treated unfairly, the judge considered the arbitrator’s conclusion that counsel for the applicant had enough information to explore issues regarding the settlement between the respondent and the WRHA on discovery. In my view, this does not amount to a finding that the applicant had the onus to discover documents in the respondent’s possession.

It is a finding regarding the applicant’s knowledge during examinations for discovery and the hearing in the context of procedural fairness. [ 55 ] Finally, there is no arguable merit to the applicant’s submission that the proceedings were unfair because the arbitrator relied on a case decided after the parties had concluded their arguments and the applicant had no ability to respond. [ 56 ] In his reasons, the arbitrator cited paras 29-40 of Rosenberg QB for its review of already established principles of contractual

interpretation. [ 57 ] The judge found that the arbitrator’s reliance on Rosenberg QB did not create any unfairness as it did not create or refer “to any new law that was determinative of the outcome” ( Christie #2 at para 196). Importantly, the judge rejected the applicant’s assertion that the arbitrator considered post-contractual conduct of the parties in construing the contract.

Instead, the arbitrator found, as a matter of fact, that the impugned conduct occurred prior to the formation of the development agreement (see Christie #2 at para 122). [ 58 ] On this leave motion, the applicant argues that the arbitrator’s reliance on Rosenberg QB created an unfairness because it was overturned by this Court. [ 59 ] In Rosenberg et al v Securtek Monitoring Solutions Inc , 2021 MBCA 100 , this Court concluded that the trial judge made palpable and overriding errors in applying the principles of contractual

interpretation to the facts of that case, including by relying on evidence of subsequent conduct in the absence of ambiguity (see para 100). This Court did not take issue with the trial judge’s recitation of the law relating to contractual

interpretation. [ 60 ] In the circumstances, I am not convinced that it is arguable that the arbitrator’s reliance on Rosenberg QB created an unfairness. [ 61 ] In my view, the applicant’s proposed grounds of appeal regarding the decision dismissing the application to set aside have no arguable merit. [ 62 ] I am also not convinced that the proposed grounds of appeal are of sufficient importance.

While denying leave will be significant to the applicant in the sense that it will bring an end to its litigation, the applicant has not raised a novel or unsettled point of law or of practice and resolution of the issues will not likely affect the determination of disputes between others. [ 63 ] Finally, I have not been persuaded that there is a risk of an injustice if I do not grant leave to appeal.

Conclusion [ 64 ] I am not persuaded that the judge declined jurisdiction on the leave applications or that the test for leave to appeal the dismissal of the application to set aside has been met. [ 65 ] In the result, the motion for leave to appeal is dismissed with costs to the respondent. JA [1] As of January 1, 2022, amendments to The Court of Appeal Act , CCSM c C240 , came into force (see Bill 46, The Court Practice and Administration Act (Various Acts Amended) , 3rd Sess, 42nd Leg, Manitoba, 2021,

section 3 (assented to 20 May 2021), SM 2021, c 40 ). Sections 25.1 and 25.2 govern appeals of interlocutory orders and require leave to appeal in the absence of an exception.