Canada: Not Very Appealing: The Virtually Impossible Task Of Obtaining Permission To Appeal Under Section 44(2) Of The Alberta Arbitration Act

The Alberta Court of Queen’s Bench has once again confirmed that obtaining permission to appeal an arbitration award under section 44(2) of the Arbitration Act, which applies where an arbitration agreement is silent on an appeal right, will be a virtually impossible task. Parties wishing to have the option of appealing their arbitration awards to the Alberta courts should therefore be reluctant to rely upon this section and should instead include appeal rights in their arbitration agreements.

As in most Canadian jurisdictions, the framework for appeal of an arbitration award in Alberta depends on the underlying arbitration agreement. Parties can agree that awards may be appealed on questions of law, questions of fact, or questions of mixed fact and law under section 44(1) of the Arbitration Act, RSA 2000, c A-43 (Act). Where the agreement is silent, section 44(2) of the Act provides that, with permission of the Alberta Court of Queen’s Bench, parties can appeal on a question of law. However, a recent decision of this Court in KBR Industrial Canada Co v Air Liquide Global, 2018 ABQB 257, (KBR), confirms yet again that a Section 44(2) appeal is unlikely to succeed.

In fact, there are only a handful of cases where the Courts of Alberta have granted permission to appeal under section 44(2) and of these cases, not one succeeded on appeal. This is attributable to the stringent requirements for permission to appeal under sections 44(2.1) and 44(3) of the Act, in addition to a public interest requirement imposed in many of the Alberta decisions, including the Court in KBR. Once permission has been granted, there are also difficulties in appealing an arbitral award, but they are outside the scope of this article.

For permission to be granted, a court must first find an extricable question of law, a task that has become increasingly difficult following the determination in Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, that contractual interpretation is a question of mixed fact and law. In KBR the Court found that it will be a rare circumstance where a question of law can be extricated in the context of an appeal under section 44(2). At issue was the arbitration panel’s interpretation of how two clauses in the agreement that contained the arbitration agreement, a set-off clause and a limitation of liability clause, worked together. The difference in approaches between the majority and minority of the arbitration panel on this question resulted in a difference in damages of $15 million.

Despite finding an extricable question of law, permission was not granted because of section 44(3), which bars an appeal of any question of law that was expressly before the arbitration panel. This provision is unique to Alberta and applies to all appeals under the Act unless the parties contract to exclude its application.

Although section 44(3) was dispositive of the permission application in KBR, the Court nevertheless decided to consider whether the additional requirements of section 44(2.1) for permission were met, and ultimately concluded they were not. This section requires first that the importance to the parties of the matters at stake justifies an appeal and second that the determination on the question of law significantly affects the parties.

The Court in KBR started with a review of the jurisprudence, finding that section 44(2.1) creates a “very high standard that most cases will not meet,” requiring “more than a usual impact” that will be “not easily be satisfied.” It noted that while it is “not impossible” to satisfy this standard, it was clear that parties would need to show repercussions more severe or significant than the normal losses that occur as result of an arbitral award.

However, the Court went one step further and applied a public interest test in addition to the section 44(2.1) requirements, pointing to the use of this test by courts in the past. It held that on the facts in KBR, there was no public interest in an appeal because the arbitration panel’s award was unlikely to have a wide-ranging impact on the industrial construction industry generally. The Court also noted the commercial sophistication of the parties, whose conscious choice in having their contractual disputes determined through a private arbitrator worked as a factor against them in granting permission to appeal in the case.

While a public interest requirement is not unique to Alberta, it is notable that Alberta courts impose this requirement absent statutory language requiring them to do so and despite the fact that section 44(2.1) expressly focuses on the impact to the parties of the arbitration. In contrast, section 31(2)(c) of British Columbia’s Arbitration Act, RSBC 1996, c 55 and section 31(2)(c) of British Columbia’s Commercial Arbitration Act RSBC 1986, c 3, expressly require that the point of law “is of general or public importance.”

Given the KBR Court’s application of the requirements of section 44(2.1), the necessity of a public interest, and the bar on questions of law already considered by an arbitrator under section 44(3), we cannot overstate the difficulty of obtaining permission to appeal under section 44(2). It appears that this task may be virtually impossible rather than “not impossible.”

The foregoing should sound a caution for commercial parties who wish to have the option to appeal an arbitration award and who rely on section 44(2) to do so. The more prudent approach would be to write an appeal right into their arbitration agreement, such that section 44(1) of the Act applies. Furthermore, parties may wish to consider excluding the application of section 44(3), which can have a very restrictive effect on appeals both under section 44(1) and 44(2) of the Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions