In Agrium v. Orbis Engineering Field Services, the Alberta Court of Appeal held that parties can appeal a decision from a master to a justice of the Alberta Court of Queen’s Bench (now the Court of King’s Bench) despite section 7(6) of the Alberta Arbitration Act(“AA“). That section prescribes that “there is no appeal from the court’s decision under this section.” The case is significant because the Court of Appeal was divided and the majority disagreed with Ontario Superior Court jurisprudence on the same issue. Accordingly, this issue remains live and may require review by the Supreme Court of Canada.
This case arose out of a contract between the appellant Agrium and the respondents Orbis and Elliot. The contract contained a mandatory arbitration provision.
A dispute arose. Instead of pursuing arbitration, Agrium brought a civil action. Orbis and Elliot defended the statement of claim. Then, they applied to strike Agrium’s civil action on the basis that the parties had agreed to submit their disputes to arbitration.
The master dismissed the application based on waiver and attornment.
Orbis and Elliot appealed to the Alberta Court of Queen’s Bench. Meanwhile, Agrium applied to strike the appeal based on section 7(6) of the Alberta AA. The Alberta Court of Queen’s Bench held in favour of Orbis and Elliot, allowing the appeal and striking Agrium’s civil action.
Agrium appealed to the Alberta Court of Appeal on the basis that the right to appeal the master’s decision was barred under section 7(2) of the AA.
Court of Appeal: Majority
The Alberta Court of Appeal dismissed the appeal.
Justices Crighton and Ho for the majority held that the AA, which bars appeals from the court’s decision, and the Court of Queen’s Bench Act, which allows for appeals from a master to a judge, could be read harmoniously. “Court”, as mentioned in the AA, referred to the Court of Queen’s Bench. Accordingly, an appeal from the Court of Queen’s Bench to the Court of Appeal would be impossible. However, an appeal within the Court of Queen’s Bench system from a master to a judge was not captured by the ban. The majority found that this interpretation “respects the constitutional limitations on the master’s decision, the statutory right of appeal in the Court of Queen’s Bench Act, and the statutory intention that arbitration matters not become bogged down in multiple levels of appeal reflected in the Arbitration Act.“
Further, the majority distinguished this case from the Ontario Superior Court’s decision in Wang v. Mattamy Corp. In that case, when faced with the same issue, the Ontario Superior Court held that there was no appeal from a master to a judge under the Ontario Arbitration Act. The majority reasoned that Ontario courts have not interpreted section 96 of the Constitution Act to prohibit masters from exercising some judicial functions. As a result, Ontario generally affords greater deference to masters’ decisions than Alberta, including getting the final say on certain decisions.
Court of Appeal: Dissent
The dissent would have allowed the appeal.
Justice Wakeling noted that a decision by a master in chambers is a decision by the Court of Queen’s Bench. He found that there were four benchmarks to determine whether a decision was a court’s “decision under this section” for the purposes of section 7(6) of the AA: there must be an application under section 7(1), the parties must have agreed to submit their dispute to arbitration, the non-moving party must have commenced a court action against the moving party, and a judge or master of the Court of Queen’s Bench or judge of the Provincial Court of Alberta must have issued a decision to stay the action or dismiss the stay application. Finding that all four benchmarks were present in this case, the dissent held that the wording of section 7(6) was clear and no appeal of the master’s decision was available.
The dissent also found that section 96 of the Constitution Act, 1867 did not assist the respondents because section 40(1) of the Supreme Court Act still allows a party to apply for permission to appeal the decision to the Supreme Court of Canada. Since Alberta does not have the constitutional authority to adopt a legislative regime regulating the jurisdiction of the Supreme Court, a master’s decision under section 7(1) is “not immune from appellate review”. A party may also apply for judicial review to a judge of the Court of Queen’s Bench. Accordingly, section 96 does not prevent a finding that a master’s decision is final for the purposes of section 7(6) of the AA.
- A decision by a master can be appealed to a judge of the Alberta Court of Queen’s Bench despite section 7(6) of the AA.
- Given the division between the majority and the dissenting reasons and the conflicting decisions in Ontario, this matter may be considered for appeal to the Supreme Court of Canada in the coming years.