Grant of permission to appeal from arbitral ruling covers procedural fairness issue
Following the arbitration of matters arising from the parties’ separation, the Alberta Court of Appeal granted a request for a stay of the enforcement of a chambers judge’s order dismissing an application to set aside the arbitration costs award.
In a merits award on Feb. 5, the arbitrator invited costs submissions by Feb. 20.
The applicant in Javaid v Javaid, 2026 ABCA 240, unsuccessfully sought extensions of time for costs submissions. Thus, in a costs award on Mar. 5, the arbitrator ruled on costs without submissions from the applicant.
King’s Bench proceedings
Before the Alberta Court of King’s Bench, the applicant applied for permission to appeal the merits award, to set it aside, and to continue a previously granted stay of enforcement.
The applicant also asked the court to set aside the costs award and to address this application at the same time as her application for permission to appeal the merits award, set for Apr. 14.
On Apr. 14, a chambers judge gave the applicant permission to appeal the merits award, denied the application to set aside the costs award for being filed late under s. 46(1) of Alberta’s Arbitration Act, 2000, and stamped the application to set aside the costs award as being filed on Apr. 9.
The applicant applied for permission to appeal the judge’s denial of her application to set aside the costs award. The applicant also applied for a stay of enforcement.
The respondent opposed both applications and cross-applied to strike the applications.
Permission to appeal granted
The Court of Appeal of Alberta gave the applicant permission to appeal for these questions:
- Did the court have inherent jurisdiction or other authority to deem a filing date such that an application or appeal has been “commenced within 30 days” under the Arbitration Act? If yes, did the chambers judge err by failing to consider this inherent jurisdiction or authority when refusing to set aside the costs award?
- Did the judge err by failing to give the applicant a sufficient opportunity to tackle the timing issue?
First, regarding the test for permission to appeal, the appeal court described this issue, which was determinative of the application to set aside the costs award, as reasonably arguable based on the authorities cited and of interest to parties other than these litigants.
Second, concerning the procedural fairness issue, the appeal court also found it reasonably arguable that the respondent raised the statutory time period for the first time during oral arguments and that the applicant did not have enough of an opportunity to address this matter.
Alberta Court of Appeal’s stay of enforcement
As requested by the applicant, the Alberta Court of Appeal stayed the enforcement of the chambers judge’s denial of the application to set aside the costs award until the appeal’s resolution.
The appeal court ruled that the applicant would experience irreparable harm if she could not obtain a stay, which the balance of convenience favoured and which would be just and equitable in the circumstances.
The appeal court also rejected the respondent’s res judicata argument.
Application to strike
Lastly, the Alberta Court of Appeal denied the respondent’s cross-application to strike, given that it had granted the applicant permission to appeal at least some issues.
Other arbitration-related stories
Here are some other Alberta Court of Appeal decisions revolving around arbitration.
In proceedings arising from a plant that had shut down supposedly due to equipment defects, the Alberta Court of Appeal issued a Feb. 20 decision staying the contractor’s entire third-party claim against the subcontractor under the province’s International Commercial Arbitration Act, 2000.
The Alberta Court of Appeal made a Nov. 17, 2025 decision granting Inter Pipeline Ltd.’s appeal of a judge’s refusal to compel Teine Energy Ltd. to disclose documents falling within a request that an arbitral tribunal had made in a commercial arbitration.
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