The Vancouver Litigation & Dispute Resolution Group recently succeeded in having an application for leave to appeal a commercial arbitration award dismissed in Amacon Robson Development Partnership v. The Owners, Strata Plan BCS3041, 2021 BCSC 916.
Due to the date of the underlying arbitration, the appeal procedure was governed by the old version of the Arbitration Act, RSBC 1996, c 55, which requires parties to obtain leave of the BC Supreme Court to commence an appeal. Note that under the new Arbitration Act, SBC 2020, c 2, which came into force in September 2020, parties must now obtain leave of the BC Court of Appeal. For more information on the transition of the Acts, consult the following Dentons insight: British Columbia’s new Arbitration Act and the VANIAC.
This dispute arose over the calculation of operating costs to be paid by the tenant for commercial parking stalls under its lease agreement with the Strata Owners. The parking stalls in the garage are each categorized as either residential or commercial. The question before the Arbitrator was whether the operating costs to be paid by the tenant were to be calculated based on the total number of stalls in the garage or based only on the total number of commercial stalls in the garage. Given the lengthy term of the lease and the significant difference in the two possible calculation methods, the parties proceeded to arbitration on the issue. The Arbitrator determined that the operating costs were to be calculated based on the total number of stalls in the parking garage. The tenant applied to the Court for leave to appeal that decision.
The leave to appeal application
The threshold requirement on an application for leave to appeal is that it must involve a question of law.
The tenant argued that the Arbitrator erred in law by failing to apply proper principles of contractual interpretation to the terms of the lease. The tenant also argued that the Arbitrator was wrong in considering evidence of post-contracting conduct of the parties without first determining that there was an ambiguity in the language of the lease.
In dismissing the application for leave to appeal, the Arbitrator had not erred in his application of principles of contractual interpretation or consideration of post-contracting conduct.
Do you have a commercial arbitration award to appeal?
The Amacon decision provides some important reminders in determining whether you should apply for leave to appeal an arbitration award:
- Contractual interpretation presents a question of mixed fact and law. Appeals to the Courts must involve pure questions of law (such as application of the wrong legal test). Parties should carefully consider the subject matter of their proposed appeal before applying to the Court.
- The Courts are inclined to uphold an arbitrator’s decision as the arbitrator had the benefit of considering the evidence (which the Court cannot do on a leave to appeal application).
- An appeal will not provide a party with a second hearing on the merits of the case. Keep in mind that arbitration decisions are meant to be final and binding and Courts will not readily overturn them.
If you think you may have an arbitration award to appeal or an upcoming arbitration matter, consider reaching out to the Dentons Litigation and Dispute Resolution Group. Our professionals are experienced in commercial arbitration procedure as well as pursuing and defending appeals to the Courts.
 Arbitration Act, RSBC 1996, c 55, Section 31(2),