The interests of justice did not support favouring one side over the other: court
The Alberta Court of King's Bench denied an application for a judicial stay pending appeal, allowing an arbitration award from a matrimonial property dispute to be entered as a judgment, as the court found no irreparable harm or imbalance of convenience in favour of the applicant.
In Thomson v Thomson, 2024 ABKB 436, the parties agreed to settle their matrimonial property issues through arbitration. Before arbitration, they signed an agreement stating that the arbitrator’s award would not be subject to appeal except on questions of law requiring leave of the court. Additionally, the agreement stipulated that any arbitration award should be entered as a judgment if one party sought to appeal or set aside the award.
One party sought to challenge this, citing s. 49 of the Arbitration Act requires an arbitration award to be entered as a judgment unless an appeal is pending. It was argued that this section could not be contracted out of, according to section 3 of the Act. However, the party did not appeal the arbitration decision directly but brought the matter to the court.
The court ruled that the arbitration award should be entered as a judgment. The party appealed this decision. Subsequently, a stay of the decision was sought to prevent the arbitration award from being entered as a judgment until the appeal is heard.
The Alberta Court of King’s Bench applied the RJR McDonald test for granting a stay pending appeal, which involves three parts: determining if there is a serious issue to be tried, assessing if there will be irreparable harm if the stay is not granted, and evaluating whether the balance of convenience favours the stay.
The opposing party argued that there was no serious issue to be tried due to the specific wording of the Arbitration Agreement. Despite this, the court found a serious issue to be tried, noting the low threshold for this part of the test and determining that the appeal was not frivolous or vexatious.
In the second part of the test, the court assessed whether there would be irreparable harm if the judgment was entered. The party seeking the stay contended that they would owe a significant amount of money and might be unable to recover it if the arbitration award was varied or overturned. The opposing party proposed that the money be held in a trust account to alleviate these concerns. The court found that conventional monetary harm is not considered irreparable and noted that stays of money judgments are reluctantly granted. Consequently, the court determined that the application failed this test.
The third part of the test, the balance of convenience, did not favour the party seeking the stay. The court concluded that while it would benefit the applicant if the arbitration award was not entered as a judgment, it would be equally detrimental to the opposing party. The interests of justice, therefore, did not support favouring one party over the other.
As a result, the court denied the application for a stay pending appeal and allowed the arbitration award to be entered as a judgment.
