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Jan Advocate 2017

38 V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 THE ADVOCATE 3) appeals on questions of law would be made directly to the court of appeal of the enacting province, with leave of that court. This article focuses exclusively on the subject of commercial arbitration. Those Canadian arbitration statutes that are otherwise of general application often contain exceptions for non-commercial arbitration, for example family disputes. The new UAA applies to all arbitrations and leaves it to the enacting jurisdictions, if and when they adopt the new UAA, to make whatever exceptions the enacting jurisdiction considers appropriate. THE STATUTORY BASIS FOR APPEALS On the issue of appeals to the court from arbitration awards, it should be noted at the outset that in Canada there is no inherent right of appeal and the jurisdiction of the courts to hear appeals from arbitration awards is purely statutory.3 This context, described well by the Supreme Court of Canada in Kourtessis v. Minister of National Revenue,4 needs to be kept in mind: Appeals are solely creatures of statute; see R. v. Meltzer, 1989 1 S.C.R. 1764, at p. 1773. There is no inherent jurisdiction in any appeal court. Nowadays, however, this basic proposition tends at times to be forgotten. Appeals to appellate courts and to the Supreme Court of Canada have become so established and routine that there is a widespread expectation that there must be some way to appeal the decision of a court of first instance. But it remains true that there is no right of appeal on any matter unless provided for by the relevant legislature. There are various policy reasons for enacting a procedure that limits rights of appeal. Sometimes the opportunity for more opinions does not serve the ends of justice … A further policy rationale, and one that is important to the case before this Court, is that there should not be unnecessary delay in the final disposition of proceedings … As well, there is the simple value of a final decision to resolve a dispute without the costs, in time, effort and money, of further hearings.5 CURRENT CANADIAN LEGISLATION REGARDING ARBITRATION APPEALS Currently, under the Canadian Commercial Arbitration Act6 (a federal statute that adopts a Commercial Arbitration Code based on the UNCITRAL Model Law) and under the Québec Code of Civil Procedure7 no appeal on the merits8 is available from any arbitration award to the courts. Other provinces allow for appeals in certain circumstances, subject to varying degrees of party control. In British Columbia9 and Alberta10 there is a right of appeal (subject to obtaining leave of the court) on questions of law—a right that cannot be avoided by a pre-dispute agreement of the parties. In British Columbia parties may contract out of a right of appeal on a point of law if they do so after the arbitration has started. In Alberta there is no right to appeal on a point of


Jan Advocate 2017
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