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Jan Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 41 However, before turning to a more conceptual discussion of the issue, it may be useful to describe, with reference to a few actual cases, the practical results of providing for a combination of arbitration and a right of appeal to the courts. In reviewing these examples, it should be borne in mind that appeals of arbitration awards involve a considerably higher degree of complexity than appeals from trial decisions within the court system. Appeals from trial decisions are generally as of right. In order to give some effect to the notion that arbitration and litigation are meant to be alternatives to each other, rights to appeal from arbitration awards are always restricted in some manner, even in provinces where there is no ability to contract out of a limited right to appeal. Such restrictions on the right to appeal from an arbitration award create issues that require additional analysis, argument and adjudication. Often, as with leave to appeal, a separate process of adjudication may take place with respect to the admissibility of the appeal. In addition, questions regarding classification of grounds for appeal and the standard of review will raise complications not present in appeals from a trial court. Furthermore, as the cases illustrate, the appeal process may take considerably longer than the original arbitration process and either simply confirm the original award or substitute a new decision that is as open to question and differences of opinion as the arbitration award itself. These points can be made without any consideration of the actual merits of any given case. Here are a few B.C. examples.21 Boxer Capital Corp. v. JEL Investments Ltd. The first arbitration award was made on March 23, 2009. JEL Investments Ltd. (“JEL”) did not comply with the award so Boxer Capital Corp. (“Boxer”) commenced an action and was granted an order for specific performance by Justice Dickson on September 22, 2009.22 JEL sought leave to appeal the arbitration award to the British Columbia Supreme Court. The leave to appeal application was dismissed on June 1, 2010.23 That order was appealed and, on March 25, 2011 the British Columbia Court of Appeal allowed the appeal and granted JEL leave to appeal to the Supreme Court of British Columbia.24 The appeal was heard on August 31, 2011 and on November 10, 2011 the award was set aside in part.25 The decision did not actually resolve the dispute or refer the matter back for further arbitration. JEL then commenced a second arbitration. The second arbitrator made two arbitration awards, dated August 20, 2012 and December 21, 2012. Boxer sought leave to appeal the second arbitrator’s awards to the British Columbia Supreme Court. On April 19, 2013 Justice Leask granted leave to appeal.26 JEL then appealed Justice Leask’s decision granting leave to


Jan Advocate 2017
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