Court finds proposed appeal of consent order had no reasonable chance of success
The Court of Appeal of Alberta has dismissed an application for permission to appeal an order arising from an arbitration over the sale of co-owned land, finding it was a consent order and did not raise an important question of law or precedent.
The dispute in Bosse v Carrigan, 2026 ABCA 267 concerns lands co-owned by the parties under a co-ownership agreement. The parties submitted the matter to binding arbitration under an arbitration agreement.
The arbitrator issued an interim award on July 28, 2025, followed by a directive on August 18. The applicant filed applications seeking to overturn the interim award. The respondent sought enforcement of the interim award and the August directive.
The parties appeared before a Court of King’s Bench chambers justice on November 5, 2025. After counsel discussed the matter outside the courtroom, they returned and read agreed terms of an order into the record.
The November order struck the applicant’s applications because he had not obtained leave required under an order issued in January 2024. It also confirmed and made enforceable the July 2025 interim award, while staying the requirement that the applicant vacate the property as long as he complied with specified conditions.
The parties’ counsel later disagreed over the form of the order, and the applicant’s counsel ceased to act for him. The parties returned before the same justice on April 20, 2026 to settle the order’s terms. Most of the respondent’s draft was confirmed, while some language from the August directive was removed and additional wording favourable to the applicant was added.
The resulting order stated that it was pronounced on November 5, 2025, but was filed on April 30, 2026. The applicant filed a Notice of Appeal on May 19.
The Court of Appeal concluded that the portions of the order dealing with enforcement of the interim award and the stay of the requirement to vacate constituted a consent order. As a result, permission to appeal was required under Rule 14.5(1)(d) of the Alberta Rules of Court.
The court, citing prior decisions, emphasized that an applicant seeking permission to appeal a consent order must establish that the proposed appeal raises an important question of law or precedent, has a reasonable prospect of success, and would not cause undue delay or prejudice to the parties.
The court held that the applicant had not established the requirements for permission. It found no exceptional circumstances in the November proceedings and noted that counsel had read the agreed terms into the record while the applicant was present.
The court also found that the proposed appeal raised no important issue of law or precedent and had no reasonable chance of success. It said the appeal would not resolve the fundamental issues in dispute and would consume further time and resources.
Ultimately, the court dismissed the application for permission to appeal, the application for an extension of time and the applicant’s ancillary requests.
