Parties may be contractually obligated to resolve disputes between themselves by way of arbitration. They might also choose to arbitrate instead of litigate. Regardless of how the parties made their way to an arbitration, the Alberta Arbitration Act imposes a strict 30-day limit for commencing an appeal to the Court under s. 46(1). The Alberta Court of King’s Bench Frog Lake decision serves as a reminder that the Court takes a firm stance on what constitutes timely “commencement” of an appeal.

We note at the outset that if the arbitration agreement does not provide a right of appeal to the Court, the grounds for appeal under the Arbitration Act are limited. In a previous article, we discussed the Alberta Court of King’s Bench decision in Quanta, which addressed the legal tests for appealing arbitration awards. We also reviewed the Court’s ruling in IPL v. Teine Energy, which highlighted the risk that an appeal may compromise confidentiality unless the arbitration agreement explicitly addresses that concern.

In the Frog Lake case, the Arbitrator issued an award in favour of the Frog Lake First Nation on November 21, 2024. It was served on December 2, 2024, resulting in an appeal deadline of January 2, 2025, after adding the one-day statutory extension to account for the New Year’s Day holiday. The lawyers for 2250657 first attempted to file a Notice of Appeal of the arbitral award and supporting affidavit at the Court via email sent on January 2, 2025, at 5:06 p.m. The Clerk's Office acknowledged receipt of these materials on January 13, 2025, but refused to file the Appeal due to the absence of a required form. Subsequent attempts to file were also met with rejections for various reasons. 2250657 eventually succeeded in filing its Appeal documents on February 26, 2025.

The First Nation argued that 2250657’s Appeal was not “commenced” within the prescribed 30-day period and, therefore, sought enforcement of the award as a judgment of the Court.

Was the Appeal “Commenced” in Time?

Justice Mah observed that section 46(1) of the Arbitration Act states that an appeal "must be commenced within 30 days after the appellant... received the award," but "commence" is not defined in the Act. Rule 13.15 of the Alberta Rules of Court states that “a document is filed when the court clerk of the judicial centre acknowledges on the document that the document is filed in the action,” meaning that a document is considered to be filed when it is stamped. Justice Mah concluded that the "commencement" of an appeal under the Arbitration Act must be consistent with Rule 13.15, meaning that the Appeal was not commenced until its materials were stamped “FILED” by the Clerk of the Court.

2250657 advanced the alternative argument that if the Court determined that the Appeal was not commenced in time, the Court could and should utilize its inherent power to deem that the Appeal was commenced in time but for the bureaucratic delay. Justice Mah acknowledged that, in proper circumstances, the Court may exercise its inherent authority to deem an appeal was filed on time in a case in which it would have been filed in time but for bureaucratic delay. In this case, however, bureaucratic delay did not explain or excuse 2250657 for sending Appeal documents by email at 5:06 PM on the deadline date: "sending a commencement document for filing by e-mail on the last day of a limitation period but after closing time is only hoping (not ensuring) that it is filed on time."

As a result, the First Nation was granted judgment in respect of the arbitration award.

Takeaways

The Court treats the 30-day time limit to appeal provided for in Alberta’s Arbitration Act as a strict limitation satisfied by the Clerk of the Court stamping “FILED” on the appeal document in question. The timing challenge for would-be Appellants is compounded by the reality that there are routinely delays between the date a document is submitted to the Court for filing and the date a properly filed document is filed and returned. Prudent practice suggests filing ahead of time in case the Clerk of the Court does not accept and file an Appeal on the first instance. Would-be Appellants should not count on the Court’s inherent equitable discretion to extend time. As cautioned by Justice Mah: “The exercise of inherent jurisdiction to overcome the express effect of a Rule should be exercised sparingly and only in the most obvious cases of unfairness.” All of this means that parties unhappy with the outcome of an arbitration and their counsel need to promptly decide whether to Appeal and, if so, submit the Appeal documentation to the Court on a timely basis.

It is always advisable to consult a lawyer before committing to alternative dispute resolution provisions in a commercial or construction contract, and when contemplating an appeal of an unfavourable arbitral award. Contact Todd Kathol or Ben Civil in Calgary, Ryan Krushelnitzky in Edmonton, or any member of Field Law’s Construction Group for assistance.

Link to decision: Frog Lake First Nation v 2250657 Alberta Ltd., 2025 ABKB 206