Agrium v Orbis Engineering Field Services

In the Court of Appeal of Alberta

Citation: Agrium v Orbis Engineering Field Services, 2022 ABCA 266

Date: 20220808

Docket: 2101-0020AC

Registry: Calgary

Between:

Agrium, Inc.

Appellant

- and -

Orbis Engineering Field Services Ltd., Elliott Turbomachinery Canada Inc. and Elliott

Company

Respondents

- and -

Colt Engineering Corporation, Worleyparsons Canada Services Ltd., ACM Automation

Inc., Invensys Systems Canada, Inc., Schneider Electric Systems Canada Inc., Rockwell

Automation, Inc. and Allen-Bradley

Not Parties to the Appeal

Corrected judgment: A corrigendum was issued on August 11, 2022; the

corrections have been made to the text and the corrigendum is appended to this

judgment.

_______________________________________________________

The Court:

The Honourable Justice Thomas W. Wakeling

The Honourable Justice Michelle Crighton

The Honourable Justice Bernette Ho

_______________________________________________________

Memorandum of Judgment of the Honourable Justice Crighton and the Honourable

Justice Ho

Dissenting Memorandum of Judgment of the Honourable Justice Wakeling

Appeal from the Order by

The Honourable Justice N. Dilts

Pronounced the 22nd day of December, 2020

Filed the 6th day of May, 2021

(2020 ABQB 807; Docket: 1601-03869)

_______________________________________________________

Memorandum of Judgment

_______________________________________________________

The Majority:

I. Background

[1]

The appellant Agrium, Inc. (Agrium) contracted with the respondent Orbis Engineering

Field Services Ltd. (Orbis) and the respondents Elliott Turbomachinery Canada Inc. and Elliott

Company (collectively Elliott) to provide specified work and services that are not germane to this

appeal.

[2]

What is significant to this appeal is the provision in the contract (the Agrium Contract)

relating to the resolution of disputes:

28. PROPER LAW and DISPUTE RESOLUTION:

(a) Unless otherwise stated on the face of [the Agrium Contract], [the Agrium

Contract] shall for all purposes be construed and interpreted according to the laws

of the Province of Alberta and the federal laws of Canada applicable therein,

excluding reference to conflict of laws principles. Neither the Uniform Commercial

Code, nor the United Nations Convention for the International Sale of Goods shall

apply to [the Agrium Contract]. Any dispute relating to [the Agrium Contract] shall

be resolved by arbitration in Calgary, Alberta, Canada, pursuant to the UNCITRAL

Model Law and Rules. The courts having exclusive supervisory jurisdiction with

respect to the matters relating to [the Agrium Contract] shall be the courts of the

Province of Alberta.

[3]

A dispute arose and rather than proceed to arbitration, Agrium commenced a civil action

against Orbis and Elliott only days before the limitation period expired. Thereafter, Agrium served

Orbis and Elliott mere days before the time for service would have lapsed. At no time between

the loss and service of the statement of claim were Orbis or Elliott aware of the loss.

[4]

By the time the civil claim was served on Orbis and Elliott, the time limit for commencing

an arbitration proceeding had long expired.

[5]

Orbis and Elliott defended the statement of claim alleging among other general defences

that the contractual arbitration provision barred the action.

[6]

Two years later, Orbis and Elliott applied to the master in chambers to strike the action

against them.

Page: 2

[7]

The master dismissed the Orbis and Elliott applications. The master recognized that undue

delay could not ground a stay under the Arbitration Act, RSA 2000, c A-43, after the time for

arbitration had elapsed, but instead relied on his supervisory jurisdiction to stay the action on

grounds of waiver and attornment on the part of Orbis and Elliott.

[8]

Orbis and Elliott appealed to a justice of the Court of Queen’s Bench and Agrium applied

to strike both appeals on the grounds that s 7(6) of the Arbitration Act barred appeals from the

master’s decision.

[9]

The justice in chambers heard the Orbis and Elliott appeals together with Agrium’s

application to strike the appeals. She first dismissed Agrium’s application to strike the appeals

from the master: 2020 ABQB 807 at paras 21-31. Having made that determination, she then

allowed Orbis and Elliott’s appeals from the master, resulting in Agrium’s civil action against

them being struck: at paras 44-57.

[10] Largely for the reasons given by the chambers judge, we dismiss Agrium’s appeal.

II. Issue on Appeal and Standard of Review

[11] As follows, two issues arise in this appeal:

1. whether the masters’ decision refusing to stay the action is a decision under s 7 of

the Arbitration Act; and

2. whether s 7(6) of the Arbitration Act bars an appeal from the master in chambers to

a justice of the Court of Queen’s Bench.

[12] The parties agree the chambers judge did not decide the first question. In the hearing before

the panel, Orbis took no position on whether this Court should remit the question or decide it.

Agrium and Elliott both agreed that if the panel accepts Agrium’s argument that s 7(6) bars an

appeal from the master to a justice of the Court of Queen’s Bench, this Court should nevertheless

remit the first question to the court below for determination. Accordingly, if the panel decides that

s 7(6) of the Arbitration Act bars an appeal from the master to a justice of the Court of Queen’s

Bench, then the matter must be remitted to the Court of Queen’s Bench to determine whether the

master’s decision is a decision under s 7(1) of the Arbitration Act.

[13] If the panel decides that s 7(6) does not bar an appeal from the master to a justice of the

Court of Queen’s Bench, Agrium does not appeal the chambers judge’s findings on the merits and

the appeal must be dismissed.

[14] It is important to recognize that the parties do not dispute there is a valid mandatory

arbitration provision in the Agrium Contract that binds the parties. There is no issue relative to

Page: 3

the arbitrability of the dispute and the parties do not dispute that the time for commencing

arbitration proceedings has expired.

[15] There is no disagreement regarding the standard of review. The issue on appeal is a

question of law that engages principles of statutory interpretation to which the standard of

correctness applies: TELUS Communications Inc. v Wellman, 2019 SCC 19 at para 30, [2019] 2

SCR 144.

III. Analysis

[16] The chambers judge identified the applicable principles of statutory interpretation and

considered the ordinary meaning of the words used in s 7(6) of the Arbitration Act within the

legislative framework governing appeals from a master. That framework includes the Court of

Queen’s Bench Act, RSA 2000, c C-31, the Interpretation Act, RSA 2000, c I-8, and the Alberta

Rules of Court, Alta Reg 124/2010.

[17] Section 7 of the Arbitration Act reads as follows:

(1) If a party to an arbitration agreement commences a proceeding in a court in

respect of a matter in dispute to be submitted to arbitration under the agreement,

the court shall, on the application of another party to the arbitration agreement, stay

the proceeding.

(2) The court may refuse to stay the proceeding in only the following cases:

(a) a party entered into the arbitration agreement while under a legal

incapacity;

(b) the arbitration agreement is invalid;

(c) the subject‑matter of the dispute is not capable of being the subject of

arbitration under Alberta law;

(d) the application to stay the proceeding was brought with undue delay;

(e) the matter in dispute is a proper one for default or summary judgment.

(3) An arbitration of the matter in dispute may be commenced or continued while

the application is before the court.

(4) If the court refuses to stay the proceeding,

(a) no arbitration of the matter in dispute shall be commenced, and

Page: 4

(b) an arbitration that has been commenced shall not be continued, and

anything done in connection with the arbitration before the court’s refusal

is without effect.

(5) The court may stay the proceeding with respect to the matters in dispute dealt

with in the arbitration agreement and allow the proceeding to continue with respect

to other matters if it finds that

(a) the agreement deals with only some of the matters in dispute in respect

of which the proceeding was commenced, and

(b) it is reasonable to separate the matters in dispute dealt with in the

agreement from the other matters.

(6) There is no appeal from the court’s decision under this section.

[18] Section 1(1)(c) of the Arbitration Act defines “court” as follows:

“court” means,

(i) in sections 6 and 7, the Court of Queen’s Bench and the Provincial

Court, and

(ii) in all other sections, the Court of Queen’s Bench.

[19] Section 28(1)(k) of the Interpretation Act defines the “Court of Queen’s Bench” as the

Court of Queen’s Bench of Alberta.

[20] Section 2 of the Interpretation Act states that the Interpretation Act applies “to every

enactment whether enacted before or after the commencement of this Act.”

[21] Section 12 of the Court of Queen’s Bench Act states that “[a]n appeal lies to a judge in

chambers from a decision of a master in chambers.”

[22] Rule 6.14 of the Rules of Court states the following:

Appeal from master’s judgment or order

(1) If a master makes a judgment or order, the applicant or respondent to the

application may appeal the judgment or order to a judge.

[23] The chambers judge concluded the Court of Queen’s Bench Act and the Arbitration Act

were not in conflict, but rather could be interpreted in a manner that made one harmonious with

the other without straining the language used in either. We agree with her analysis.

Page: 5

[24] While there are many recognized principles of statutory interpretation, the context will

define the principle or principles that are the most relevant.

[25] We agree with Agrium that the words of the statute are “to be read in their entire context

and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object

of the Act, and the intention of Parliament.” Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at

para 21, 1998 837 (SCC).

[26] We also agree that courts should resist interpreting a statute in a way that overwhelms the

statute’s plain language: Re: Sound v Motion Picture Theatre Associations of Canada, 2012

SCC 38 at para 33, [2012] 2 SCR 376.

[27] As this case involves numerous pieces of legislation, it is also important to keep in mind

the principles for harmonizing different statutes. In R v Ulybel Enterprises Ltd, 2001 SCC 56 at

para 30, [2001] 2 SCR 867, the Supreme Court of Canada adopted Professor Sullivan’s statement

of those principles:

…The presumptions of coherence and consistency apply not only to Acts dealing

with the same subject but also, albeit with lesser force, to the entire body of statute

law produced by a legislature. …Therefore, other things being equal,

interpretations that minimize the possibility of conflict or incoherence among

different enactments are preferred.

[28] It is also an important principle of statutory interpretation that conflict avoidance strategies

such as the “specific overrides the general” or “reading legislation down in certain circumstances

and liberally in others”, should be avoided where no genuine conflict exists: see the discussion in

Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed, (Markham, Ont: LexisNexis

Canada Inc, 2014) at chapter 11. Here, Agrium’s attempt to ignore the statutory right of appeal

that exists between the two levels of decision making within the Court of Queen’s Bench of Alberta

manufactures a conflict that does not necessarily exist.

[29] In the context of statutory interpretation, conflict is a narrow concept meaning the two acts

under review cannot stand together and cannot both operate without interfering with the other.

The Court in Toronto Railway Co. v Paget, (1909) 42 SCR 488 at 499, 1909 10 (SCC)

said this:

It is not enough to exclude the application of the general Act that it deals somewhat

differently with the same subject matter. It is not “inconsistent” unless the two

provisions cannot stand together.

[30] It is also a recognized principle of statutory interpretation that legislation is presumed to

have been enacted in compliance with the Constitution: Sullivan, at § 16.3. For over a hundred

years, Alberta courts have characterized any deference to the decisions of provincially-appointed

Page: 6

masters as fettering the discretionary jurisdiction of federally-appointed s 96 judges. As a result,

the decision of a master in Alberta has always been subject to review by a s 96 judge, who has

always heard the appeal on a de novo basis. See for example, the discussions in Polson Iron Works

v Munns, (1915) 9 WWR 231, 1915 340 (AB QB), Menduk v Gore Mutual Insurance

Company, (1969) 67 WWR 573, 1969 1069 (AB QB), Wright v Disposal Services Ltd., 8

AR 394, 1977 619 (AB QB) at para 13, Willman v Coreman, 1979 ABCA 332 at para 20,

11 Alta LR (2d) 110 and Van Camp v Chrome Horse Motorcycle Inc., 2012 ABQB 175 at paras

15-31, 535 AR 271. At paragraph 29 in Van Camp the court states:

… A rule of law based on the constitutional foundations of the respective

jurisdictions of a Judge and a Master is not subject to change through an amendment

to the Rules of Court.

To that we add that neither is that same rule of law subject to change through an implied

amendment to a provincial statute.

[31] For these reasons, and those of the chambers judge, we decline to follow the reasoning in

the Ontario decision of Wang v Mattamy Corporation, 2020 ONSC 7012, [2020] OJ No 5004.

The courts in Ontario have not seen s 96 of the Constitution Act, 1867 as prohibiting the province

from appointing an officer of the court (a master) who may exercise some judicial functions. Thus,

Ontario is more willing to give greater deference to a master’s decisions, which includes permitting

them to be the final word on certain types of decisions.

[32] Even if s 12 of the Court of Queen’s Bench Act, which confers a right of appeal from a

master to a justice of the same court, conflicts with the statutory prohibition in s 7(6) of the

Arbitration Act as Agrium argues, we do not agree that the Arbitration Act is the more specific

provision that would override the right of appeal in the Court of Queen’s Bench Act. Rather, the

provision that specifically addresses the right of appeal is that in the Court of Queen’s Bench Act.

[33] We agree with the chambers judge that the two acts can be interpreted harmoniously

without derogating from the rights conferred by one or the purpose intended by the other. An

appeal is not available under s 7(6) of the Arbitration Act beyond the Court of Queen’s Bench

where the court’s decision means the decision of a master that was either not appealed or the time

for doing so has expired, or the decision of a justice of the Court of Queen’s Bench having decided

the issue. This interpretation respects the constitutional limitations on the master’s decision, the

statutory right of appeal in the Court of Queen’s Bench Act, and the statutory intention that

arbitration matters not become bogged down in multiple levels of appeal reflected in the

Arbitration Act.

Page: 7

[34] For all of the above reasons, the appeal is dismissed and we find it unnecessary to consider

the first issue.

Appeal heard on June 15, 2022

Memorandum filed at Calgary, Alberta

this 8th day of August, 2022

Crighton J.A.

Ho J.A.

Page: 8

Wakeling, J.A. (dissenting):

I. Introduction

[35] This is an important statutory interpretation and constitutional case.

[36] Agrium, Inc. appeals orders¹of Justice Dilts dismissing applications by Agrium to strike

appeals by Orbis Engineering Field Services Ltd., Elliott Turbomachinery Canada Inc. and Elliott

Company, on the ground that the appeals are prohibited by section 7(6) of the Arbitration Act.²

The appeal judge allowed the appeals and struck Agrium’s actions against the respondents.

[37] I would allow the appeal.

II.

Questions Presented

[38] Each of Orbis Engineering and the Elliott companies applied to the presiding master in

chambers for an order striking or staying the actions Agrium commenced against them.³They

invoked⁴section 7(1) of the Arbitration Act.⁵Master Prowse, after finding that Agrium, Orbis

Engineering and the Elliott companies were bound by a mandatory arbitration agreement,

dismissed their applications.⁶He held that he had “the discretion to allow Agrium’s action to

continue in the face of the mandatory arbitration provisions in the contracts between the parties”.⁷

[39] Master Prowse did not apply section 7(2) of the Arbitration Act⁸– the provision that directs

an adjudicator to grant a stay unless one of five criteria applies – because the time for arbitration

had elapsed.⁹

¹Appeal Records 71 & 73.

²R.S.A. 2000, c. A-43.

³Appeal Records 40 & 43.

⁴The recital of the order pronounced on January 20, 2020 and filed January 31, 2020 contained this passage: “Upon

the application of the Defendant Orbis Engineering Field Services Ltd. … to stay or strike the Action against it under

section 7(1) of the Arbitration Act …; And upon the application of the Defendants Elliott Turbomachinery Canada

Inc. and Elliott Company … to stay or strike the Action against each of them under section 7(1) of the Arbitration Act

… .” Appeal Record 57 (emphasis added).

⁵Id.

⁶Agrium, Inc. v. Colt Engineering Corp., 2020 ABQB 53, ¶¶ 12 & 13.

⁷Id. (heading).

⁸R.S.A. 2000, c. 43.

⁹Id. ¶ 27.

Page: 9

[40] Section 7(6) of the Arbitration Act states that “[t]here is no appeal from the court’s decision

under this section”. Section 1(1)(c) of the Arbitration Act defines “court” as follows: “in sections

6 and 7, the Court of Queen’s Bench and the Provincial Court”.

[41] Is a decision of a master in chambers a decision of the Court of Queen’s Bench?

[42] If so, was the order of Master Prowse pronounced on January 20, 2020 and filed January

31, 2020¹⁰a decision under section 7(1) of the Arbitration Act? What are the benchmarks of a

“decision under this section”?

[43] If the order of Master Prowse was a “decision under this section”, does section 7(6) of the

Arbitration Act apply and a judge of the Court of Queen’s Bench has no jurisdiction to hear an

appeal against Master Prowse’s order?

[44] What is the effect of section 12 of the Court of Queen’s Bench Act?¹¹Section 12 states that

“[a]n appeal lies to a judge in chambers from a decision of a master in chambers”.

[45] Does section 7(6) of the Arbitration Act trump section 12 of the Court of Queen’s Bench

Act and preclude an appeal of Master Prowse’s order under section 7(1) to a judge of the Court of

Queen’s Bench?

[46] The respondents argue that section 96 of the Constitution Act, 1867¹²– “The Governor

General shall appoint the Judges of the Superior, District, and County Courts in each Province,

except those of the Courts of Probate in Nova Scotia and New Brunswick” – deprives the

Legislative Assembly of Alberta of the authority to make an order of a master in chambers under

section 7(1) of the Arbitration Act final and not subject to appellate review by the Court of Queen’s

Bench of Alberta – a superior court.

[47] Section 96 of the Constitution Act, 1867 preserves the integrity of superior courts and

allows them to act as the guardians of the rule of law.

[48] Does section 96 of the Constitution Act, 1867 assist the respondents?

[49] If the Court of Queen’s Bench had jurisdiction to hear an appeal against Master Prowse’s

order, did Justice Dilts make any reversible errors?

¹⁰Appeal Record 57.

¹¹R.S.A. 2000, c. C-31.

¹²30 & 31 Vict., c. 3 (U.K.).

Page: 10

III.

Brief Answers

[50] The decision of a master in chambers is a decision of the Court of Queen’s Bench of

Alberta. Master Prowse’s decision is a decision of the Court of Queen’s Bench.

[51] There are four benchmarks of a “decision under this section”. First, there must be an

application under section 7(1) of the Arbitration Act.¹³Second, the moving and nonmoving parties

must have agreed to submit their differences to arbitration. Third, the nonmoving party has

commenced a court action against the moving party. Fourth, a judge or a master in chambers of

the Court of Queen’s Bench or a judge of The Provincial Court of Alberta must issue a decision –

stay the action or dismiss the stay application.

[52] Master Prowse’s order was a decision under section 7(1) of the Arbitration Act. The order’s

recital acknowledges that the applicants invoked section 7(1) of the Arbitration Act.¹⁴This is not

debatable. And Master Prowse concluded that the parties were bound by an agreement to submit

their disputes to arbitration. This is not debatable. He posed this question:¹⁵“Do I have the

discretion to allow Agrium’s action to continue in the face of the mandatory arbitration provisions

in the contracts between the parties?” There was no doubt that Agrium had commenced actions

against the moving parties and that Master Prowse dismissed their stay applications.

[53] Section 7(6) of the Arbitration Act is in play. Section 7(6) deprives a judge of the Court of

Queen’s Bench of his or her jurisdiction to hear an appeal from an order of a master in chambers

under section 7(1). This is crystal clear. “No appeal” means “no appeal”.

[54] Section 96 of the Constitution Act, 1867 does not assist the respondents. This is so even if

section 96 of the Constitution Act, 1867¹⁶precludes Alberta from adopting a legislative regime that

makes a master in chambers’ section 7(1) decision final.

[55] There are two reasons.

[56] First, section 40(1) of the Supreme Court Act¹⁷allows the party that is dissatisfied with the

section 7(1) decision to apply for permission to appeal to the Supreme Court of Canada. This

means that a master in chambers’ section 7(1) decision is not final and unreviewable. The Supreme

Court of Canada is a superior court. Alberta does not have the constitutional authority to regulate

¹³R.S.A. 2000, c. A-43.

¹⁴Appeal Record 57.

¹⁵Agrium, Inc. v. Colt Engineering Corp., 2020 ABQB 53, ¶¶ 5, 12 & 13 (heading).

¹⁶30 & 31 Vict., c. 3 (U.K.).

¹⁷R.S.C. 1985, c. S-26.

Page: 11

the jurisdiction of the Supreme Court of Canada – deny the Supreme Court the jurisdiction to hear

leave to appeal applications arising from section 7(1) orders.

[57] Second, a good argument may be made that a party adversely affected by a section 7(1)

order may apply to a judge of the Court of Queen’s Bench of Alberta – a superior court – for

judicial review. Section 7(6) of the Arbitration Act does not preclude judicial review of a section

7(1) order.

[58] It follows that Justice Dilts had no jurisdiction to hear the appeals of Orbis Engineering

and the Elliott companies and that her decision is of no effect.

[59] I would allow the appeal – Justice Dilts’ order is set aside with the result that Master

Prowse’s order is in effect.

IV.

Statement of Facts

A. Agrium Commenced a Claim Against Orbis Engineering and Others

[60] In 2013 Agrium engaged Orbis Engineering and the Elliott companies to provide services

in relation to upgrading its production plant in Carseland, Alberta.¹⁸The purchase orders that

Agrium provided to Orbis Engineering and the Elliott companies included an arbitration clause

among its terms and conditions.¹⁹

[61] On March 22, 2014 there was a system failure at the production plant.²⁰

[62] On March 18, 2016 Agrium commenced, in the Court of Queen’s Bench of Alberta, a claim

against Orbis Engineering, the Elliott companies and seven other corporations that had been

¹⁸Statement of Claim filed March 18, 2016, ¶¶ 28-30, 58, 67 & 72. Appeal Record 7, 11, 14 & 15.

19

Affidavit of Gabriel Salcedo (In Response to the Summary Dismissal Application of the Defendant, Orbis

Engineering Field Services Ltd) filed November 1, 2019, ¶¶ 6, 8 & 10 & Exhibit C, Agrium Services Purchase Order

dated June 17, 2013, Canadian Standard Purchasing Terms and Conditions (“28. PROPER LAW AND DISPUTE

RESOLUTION (a) ... Any dispute relating to this Order shall be resolved by arbitration in Calgary, Alberta, Canada,

pursuant to the UNCITRAL Model Law and Rules. The courts having exclusive supervisory jurisdiction with respect

to the matters relating to this Order shall be the courts of the Province of Alberta. (b) Buyer [Agrium] shall include

provisions within its other agreements which relate to this Order a dispute resolution provision substantially similar

to that which is contained herein. Vendor [Orbis Engineering] shall participate, upon the request of Buyer, in any

arbitration arising in connection with the Goods, the Services or this Order, as if the Vendor were a direct party to the

issue in dispute”). Appellant's Extracts of Key Evidence 8 & 23 & Affidavit of Gabriel Salcedo (In Response to the

Summary Dismissal Application of the Defendants, Elliott Turbomachinery Canada Inc. and Elliott Company) filed

November 1, 2019, ¶ 6. Appellant's Extracts of Key Evidence 29.

²⁰Statement of Claim filed March 18, 2016, ¶ 33. Appeal Record 7.

Page: 12

involved in its facility upgrades seeking damages of just over $100 million for the resulting

losses.²¹

[63] Around this time, the limitation period for invoking the arbitration process expired.²²

[64] On March 14, 2017 Agrium served the statement of claim on Orbis Engineering and the

Elliott companies ex juris.²³

[65] On May 25, 2018 Agrium requested a statement of defence within 60 days.²⁴

[66] Orbis Engineering filed its defence on June 27, 2018, denying responsibility for the losses,

alternatively claiming contribution and indemnity from the other defendants.²⁵

[67] On June 28, 2018 Orbis Engineering amended its defence to primarily plead the mandatory

arbitration provision in its agreement with Agrium. It claimed that the court did not have

jurisdiction in respect of the claim and sought a stay pursuant to the Arbitration Act.²⁶

[68] The Elliott companies filed their defence on July 9, 2018, denying liability and alternatively

relying on the limitation of liability in the governing contract.²⁷They later claimed contribution

and indemnity from the codefendants.²⁸

[69] On June 24, 2019 the Elliott companies applied for permission to amend their defence.²⁹

The amended defence filed January 20, 2020 primarily pleaded a mandatory arbitration clause in

²¹Id. ¶ 108. Appeal Record 22-23.

²²Agrium Inc. v. Colt Engineering Corp., 2020 ABQB 807, ¶ 6 (“The parties agree that service of the Statement of

Claim occurred after the expiry of the limitation period for commencing arbitration”). See Arbitration Act, R.S.A.

2000, c. A-43, s. 51(1) (“The law with respect to limitation periods applies to an arbitration as if the arbitration were

an action and a matter in dispute in the arbitration were a cause of action”) & Limitations Act, R.S.A. 2000, c. L-12,

s. 3(1) (“Subject to subsections (1.1) and (1.2) and sections 3.1 and 11, if a claimant does not seek a remedial order

within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (i) that

the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct

of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a

proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act

as a defence, is entitled to immunity from liability in respect of the claim”).

²³Agrium Inc. v. Colt Engineering Corp., 2020 ABQB 807, ¶ 6.

²⁴Id. ¶ 7.

²⁵Statement of Defence filed June 27, 2018, ¶¶ 2-3 & 10. Appeal Record 26 & 27.

²⁶Amended Statement of Defence filed June 28, 2018, ¶¶ 2 & 9. Appeal Record 28 & 30.

²⁷Statement of Defence filed June 9, 2018, ¶¶ 9, 10, 14-16. Appeal Record 33 & 34.

²⁸Agrium Inc. v. Colt Engineering Corp., 2020 ABQB 807, ¶ 9.

²⁹Id.

Page: 13

the terms and conditions that Elliott Turbomachinery provided to Agrium with its quotations –

requiring arbitration in New York – and alternatively a mandatory arbitration clause in the terms

and conditions that Agrium included in its purchase orders to Elliott Turbomachinery – requiring

arbitration in Calgary under the UNCITRAL Model Law and Rules – submitting that the court

accordingly lacks jurisdiction to hear Agrium’s claim and asking that the action be stayed or

struck.³⁰

B.

Master Prowse Permitted Agrium’s Claim To Continue

[70] In 2019 each of Orbis Engineering and the Elliott companies applied to have Agrium’s

action against them stayed or struck on the basis that the governing contracts mandated resolution

by arbitration, the time for commencing arbitration had expired, and the Court of Queen’s Bench

of Alberta had no jurisdiction to hear the action.³¹The Elliott companies added that the claims

against it must also be stayed³²if the arbitration is to take place in New York.

[71] Agrium asserted that Orbis Engineering and the Elliott companies did not move promptly

in their applications and that by participating in the litigation waived their right to arbitrate and

attorned to the court’s jurisdiction.³³

[72] Master Prowse held that “undue delay under section 7(2) of the Arbitration Act cannot be

used to stay an action under the Arbitration Act after the time for arbitration has elapsed”.³⁴

³⁰Amended Statement of Defence filed January 20, 2020, ¶¶ 7, 8, 14 & 21. Appeal Record 36-39.

³¹Application of Orbis Engineering filed March 4, 2019, ¶¶ 5-7 and Application of Elliott Turbomachinery Canada,

Inc. and Elliott Company filed June 21, 2019, ¶¶ 9-11. Appeal Record 41 & 45.

³²Application of Elliott Turbomachinery Canada, Inc. and Elliott Company filed June 21, 2019, ¶ 12. Appeal Record

45.

³³Agrium, Inc. v. Colt Engineering Corp., 2020 ABQB 53 (Master), ¶ 8.

³⁴Id. ¶ 27. A court may stay a proceeding in The Provincial Court of Alberta or the Court of Queen’s Bench of Alberta

under section 7(1) of the Arbitration Act even if the limitation period for the commencement of an arbitration has

expired. The text of section 7 supports this conclusion. Section 7(1) unambiguously directs a court to stay a proceeding

commenced by the nonmoving party in contravention of a binding arbitration agreement unless one of the five

conditions set out in section 7(2) apply. The expiration of the limitation period governing the commencement of

arbitration proceedings is not one of the five. If the Legislative Assembly of Alberta thought the expiration of the

limitation period for the commencement of an arbitration proceeding a good reason to deny a stay it could have said

so. And if the Legislative Assembly subsequently concludes that section 7(2) needs to be revised it can do so. A.

Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 93, 94 & 96 (2012) (“The principle that a matter

not covered is so obvious that it seems absurd to recite it. … The absent provision cannot be supplied by the courts.

… Judicial amendment flatly contradicts democratic self-governance”). In addition, Justice Fruman’s judgment in

Agrium Inc. v. Babcock & Wilcox Canada Ltd., 2005 ABCA 82, ¶ 12; 11 C.P.C. 6th 108, 112 is consistent with this

position: “In this case the parties used mandatory [arbitration] language and none of the s. 7(2) exceptions apply.

Because the underlying arbitration is statute-barred, the statement of claim should be dismissed”. This Court expressly

approved Agrium Inc. v. Babcock & Wilcox Canada Ltd. in HOOPP Realty Inc. v. A.G. Clark Holdings Ltd., 2014

Page: 14

[73] Master Prowse concluded that he had the discretion to consider whether Agrium’s claim

should continue notwithstanding the existence of mandatory arbitration provisions in the contracts

between the parties.³⁵

[74] The master determined that fairness was the controlling measure: “[W]hether in the

circumstances it would be unfair to a plaintiff to allow a defendant to go back on its choice to

participate in litigation”.³⁶

[75] Master Prowse noted³⁷Orbis Engineering and the Elliott companies’ participation in the

court process to date – including serving their defences and filing notices of claim against the

codefendants – and the stage of those proceedings – no examinations yet took place and Agrium

was in the process of preparing its document production – and concluded that³⁸

given the 2 year or more delay in applying to stay or strike, and the participation in

the proceedings (in particular, use of the proceedings to advance claims against

other defendants) it would be unfair to Agrium to allow Orbis and Elliott to go back

on their choice to participate in this litigation. Accordingly I dismiss the

applications of Orbis and Elliott to stay or strike these proceedings against them.

C.

Justice Dilts Struck Agrium’s Claim

ABCA 20, ¶ 7; 31 C.L.R. 4th 173, 177, leave to appeal ref’d, [2014] S.C.C.A. No. 87 “The chambers judge correctly

interpreted this Court’s decision in Babcock & Wilcox, which holds that if the parties have agreed that they must

arbitrate a dispute, but one party has issued a statement of claim and has not commenced arbitration within the

limitation period for arbitration, then the court must strike out the claim”. This answers the question Master Schlosser

posed in Fath v. Quadrant Construction Ltd., 2019 ABQB 151, ¶¶ 17 & 32; 89 C.L.R. 4th 107, 114 & 121: “If a

plaintiff has sued in time but has not sought arbitration, the question is whether the Court can allow the lawsuit to go

ahead and, in particular, whether the Court can permit this based on the grounds in s. 7(2) of the Arbitration Act. Some

cases suggest that the Court can consider whether the relief was sought in a timely way (ie. s. 7(2)(d)), or whether the

lawsuit is suitable for summary disposition (ie. s. 7(2)(e)), even after the limitation has expired; though post-limitation,

if the lawsuit cannot proceed, the remedy is to strike. Other cases say that you cannot. .... With respect, this divided

dicta leaves me in considerable doubt about the applicability of the s. 7(2) factors in a post-limitation stay or strike

application” (emphasis in original). See also B. Casey, Arbitration Law of Canada: Practice and Procedure 152 (3d

ed. 2017) (“Limitation periods may apply in arbitration in the same manner as a court action. It is therefore important

that counsel carefully consider whether or not an arbitration agreement applies to the dispute. If the wrong choice is

made, for example an action is brought rather an arbitration, and the court later determines that the matter should be

arbitrated, the limitation period may well have expired, leaving the claimant without a remedy”) & K. McEwen & L.

Herbst, Commercial Arbitration in Canada 3-31 (looseleaf rel. 17, 11/2020) (“If an action commenced by a plaintiff

is stayed due to the applicability of an arbitration agreement and an applicable statutory limitation expires before an

arbitration is commenced, the claim may be statute barred”).

³⁵Id. ¶¶ 12-13.

³⁶Id. ¶ 30.

³⁷Id. ¶¶ 41-45.

³⁸Id. ¶ 51.

Page: 15

[76] Orbis Engineering and the Elliott companies appealed Master Prowse’s decision.³⁹

[77] Agrium applied to strike the appeals.⁴⁰It invoked section 7(6) of the Arbitration Act.⁴¹

[78] Orbis Engineering and the Elliott companies argued that section 7(6) has no application to

this case because the master’s decision was not “under” section 7 of the Arbitration Act. They

emphasized that Master Prowse relied on authority outside of the Arbitration Act to deny a stay

and that the Arbitration Act cannot remove the authority of a judge of the Court of Queen’s Bench

to review a master’s decision.⁴²

[79] Justice Dilts accepted these arguments:⁴³

I am satisfied Elliott and Orbis are entitled to appeal the decision of the Master to

a Justice of the Court of Queen’s Bench. They are entitled to do so as a right if the

Master’s decision was not made under the Arbitration Act, and I am satisfied that

they are entitled to do so notwithstanding s. 7(6) of the Arbitration Act. I say this

looking at both the legislative framework governing appeals from a Master and the

jurisprudence in Alberta relating to the interpretation of s. 7(6) of the Arbitration

Act.

….

If the Master’s decision was made outside of s. 7 of the Arbitration Act, and instead

was made based on some residual discretion inherent in the court, that decision can

be appealed. Elliott and Orbis are entitled to access all the court processes,

including appellate review: ... . If the Master’s decision was made under s. 7 of the

Arbitration Act, Elliott and Orbis are entitled to appeal that decision relying on s.

12 of the Court of Queen’s Bench Act and the Rules of Court. Section 7(6) does not

preclude an appeal of the Master’s decision to a Justice in Chambers. Given this

conclusion, I need not address whether the Master’s decision was made under s. 7

of the Arbitration Act.

[80] In essence, Justice Dilts took the view that the bar in section 7(6) of the Arbitration Act⁴⁴

to appeals from decisions on applications to stay court proceedings in favor of arbitration should

³⁹Notices of Appeal filed February 7, 2020. Appellant's Extracts of Key Evidence 45 & 47.

⁴⁰Application to Strike Appeals filed February 14, 2020. Appeal Record 47.

⁴¹R.S.A. 2000, c. A-43.

⁴²Agrium Inc. v. Colt Engineering Corp., 2020 ABQB 807, ¶ 20.

⁴³Id. ¶¶ 21 & 30.

⁴⁴R.S.A. 2000, c. A-43 (“There is no appeal from the court’s decision under this section”).

Page: 16

not, “[a]bsent express language, ... be read in a manner that would be inconsistent with ... [the]

legislated right”⁴⁵of appeal from a master’s decision available under section 12 of the Court of

Queen’s Bench Act⁴⁶and rule 6.14 of the Alberta Rules of Court.⁴⁷While she accepted that a

decision under section 7 made by a judge of the Court of Queen’s Bench could not be appealed to

the Court of Appeal, she held a decision of a master under section 7 could be appealed to a judge

of the Court of Queen’s Bench.⁴⁸

[81] Justice Dilts proceeded to consider the appeal on the merits. She concluded that the court

has jurisdiction, as part of the supervisory function that it retains with respect to matters governed

by arbitration agreements, to consider whether parties waived reliance on the arbitration clause or

attorned to the court’s jurisdiction regardless of whether the time to arbitrate has expired.⁴⁹

[82] The chambers judge took the view that the analysis of waiver and attornment is not a

fairness assessment as Master Prowse determined, nor is it undertaken as an analysis of undue

delay that is a basis for refusing to grant a stay under section 7(2)(d) of the Arbitration Act.⁵⁰

Rather, she approached the inquiry in the context of waiver, and examined whether the defendants’

conduct “indicate[d] the voluntary intention to forego reliance on the mandatory arbitration

provision or an engagement ... in the merits of the [a]ction”.⁵¹

[83] Justice Dilts determined that, on the facts of this case, the conduct of neither Orbis

Engineering nor the Elliott companies was sufficient to make out a waiver of their right to arbitrate.

Orbis Engineering pleaded the arbitration provision from the outset, putting Agrium on notice of

its intention to rely on it, its actions in filing a defence and bringing contribution or indemnity

claims against the other defendants were “largely defensive” and “are of little value in determining

whether the defendant has signalled an agreement to litigate” given that rules of court required

such steps be taken within a prescribed time, and applied to strike or stay the action within one

year after filing its defence.⁵²While the Elliott companies delayed relying on the arbitration

⁴⁵Agrium Inc. v. Colt Engineering Corp., 2020 ABQB 807, ¶ 23.

⁴⁶R.S.A. 2000, c. C-31 (“An appeal lies to a judge in chambers from a decision of a master in chambers”).

⁴⁷Alta. Reg. 124/2010 (“If a master makes a judgment or order, the applicant or respondent to the application may

appeal the judgment or order to a judge”).

⁴⁸Agrium Inc. v. Colt Engineering Corp., 2020 ABQB 807, ¶ 25.

⁴⁹Id. ¶¶ 44, 45, 47 & 48.

⁵⁰Id. ¶ 53.

⁵¹Id. ¶¶ 54-55.

⁵²Id. ¶ 55.

Page: 17

provision for over a year after filing their initial defence, this, she held, is not sufficient to constitute

waiver of their right to arbitrate.⁵³

[84] The orders pronounced on December 22, 2020 and filed May 6, 2021 dismissed Agrium’s

applications to strike the appeals against Master Prowse’s orders, allowed the appeals and struck

Agrium’s claims against Orbis Engineering and the Elliott companies.⁵⁴

D.

Agrium Appeals Justice Dilts’ Order

[85] Agrium appealed Justice Dilts’ order.⁵⁵

V.

Applicable Legislation and Arbitration Provisions

A. Arbitration Act

[86] The important sections of the Arbitration Act⁵⁶are reproduced below:

1(1) In this Act,

…

(c) “court” means,

(i) in sections 6 and 7, the Court of Queen’s Bench

and the Provincial Court, and

(ii) in all other sections, the Court of Queen’s

Bench.

…

3 The parties to an arbitration agreement may agree, expressly or by implication, to

vary or exclude any provision of this Act except sections 5(2), 19, 39, 44(2), 45, 47

and 49.

…

⁵³Id. ¶ 56.

⁵⁴Appeal Records 71 & 73.

⁵⁵Civil Notice of Appeal filed January 20, 2021. Appeal Record 75.

⁵⁶R.S.A. 2000, c. A-43 (emphasis added).

Page: 18

6 No court may intervene in matters governed by this Act, except for the following

purposes as provided by this Act:

(a) to assist the arbitration process;

(b) to ensure that an arbitration is carried on in accordance with the

arbitration agreement;

(c) to prevent manifestly unfair or unequal treatment of a party to an

arbitration agreement;

(d) to enforce awards.

7(1) If a party to an arbitration agreement commences a proceeding in a court in

respect of a matter in dispute to be submitted to arbitration under the agreement,

the court shall, on the application of another party to the arbitration agreement, stay

the proceeding.

(2) The court may refuse to stay the proceeding in only the following cases:

(a) a party entered into the arbitration agreement while under a legal

incapacity;

(b) the arbitration agreement is invalid;

(c) the subject-matter of the dispute is not capable of being the

subject of arbitration under Alberta law;

(d) the application to stay the proceeding was brought with undue

delay;

(e) the matter in dispute is a proper one for default or summary

judgment.

(3) An arbitration of the matter in dispute may be commenced or continued while

the application is before the court.

(4) If the court refuses to stay the proceeding,

(a) no arbitration of the matter in dispute shall be commenced, and

(b) an arbitration that has been commenced shall not be continued,

and anything done in connection with the arbitration before the

court’s refusal is without effect.

Page: 19

(5) The court may stay the proceeding with respect to the matters in dispute dealt

with in the arbitration agreement and allow the proceeding to continue with respect

to other matters if it finds that

(a) the agreement deals with only some of the matters in dispute in

respect of which the proceeding was commenced, and

(b) it is reasonable to separate the matters in dispute dealt with in the

agreement from the other matters.

(6) There is no appeal from the court’s decision under this section.

B.

Judicature Act

[87] Section 3(b)(iv)(A) of the Judicature Act⁵⁷is in this form:

3 The Court of Appeal

…

(b) has jurisdiction and power, subject to the Rules of Court, to hear and determine

…

(iv) all appeals or applications in the nature of appeals respecting a

judgment, order or decision of

(A)a judge of the Court of Queen’s Bench … .

C.

Court of Queen’s Bench Act

[88] The key provisions of the Court of Queen’s Bench Act,⁵⁸as they read before June 15, 2022,

follow:

⁵⁷R.S.A. 2000, c. J-2.

⁵⁸R.S.A. 2000, c. C-31. Effective June 15, 2022, masters in chambers are called “applications judges”. Court of

Queen’s Bench Act, R.S.A. 2000, c. C-31, s. 27(1)(b) (“The Lieutenant Governor in Council may amend ... [section

8(1)] so that ... officers appointed under section 8(1) are called something other than masters in chambers”) & O.C.

250/2022 (“The Lieutenant Governor in Council amends section 8(1) of the Court of Queen’s Bench Act by striking

out “masters in chambers” and substituting “applications judges”). Consequential amendments to the remainder of the

Act will come into effect on September 1, 2022. Court of Queen’s Bench (Various Regulations) Amendment

Regulation, Alta. Reg. 137/2022, s. 3.

Page: 20

8(1) The Lieutenant Governor in Council may appoint officers of the Court called

masters in chambers.

…

12 An appeal lies to a judge in chambers from a decision of a master in chambers.

D. Alberta Rules of Court

[89] Rules 6.14(1) and 14.4(1) of the Alberta Rules of Court⁵⁹are set out below:

6.14(1) If a master makes a judgment or order, the applicant or respondent to the

application may appeal the judgment or order to a judge.

…

14.4(1) Except as otherwise provided, an appeal lies to the Court of Appeal from

the whole or any part of a decision of a Court of Queen’s Bench judge sitting in

court or chambers, or the verdict or finding of a jury.

E.

Supreme Court Act

[90] Sections 2(1), in part, and 40(1) of the Supreme Court Act⁶⁰read as follows:

2(1) In this Act,

“appeal” includes any proceeding to set aside or vary any judgment of the court

appealed from;

…

“court appealed from” means the court from which the appeal is brought directly to

the Supreme Court, whether that court is one of original jurisdiction or a court of

appeal;

“final judgment” means any judgment, rule, order or decision that determines in

whole or in part any substantive right of any of the parties in controversy in any

judicial proceeding … .

⁵⁹Alta. Reg. 124/2010.

⁶⁰R.S.C. 1985, c. S-26.

Page: 21

…

40(1) … [A]n appeal lies to the Supreme Court from any final or other judgment of

the Federal Court of Appeal or of the highest court of final resort in a province, or

a judge thereof, in which judgment can be had in the particular case sought to be

appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court

has been refused by any other court, where, with respect to the particular case

sought to be appealed, the Supreme Court is of the opinion that any question

involved therein is, by reason of its public importance or the importance of any

issue of law or any issue of mixed law and fact involved in that question, one that

ought to be decided by the Supreme Court or is, for any other reason, of such a

nature or significance as to warrant decision by it, and leave to appeal from that

judgment is accordingly granted by the Supreme Court.

F.

Constitution Act, 1867

[91] Portions of part VII of the Constitution Act, 1867⁶¹are set out below:

VII. Judicature

96 The Governor General shall appoint the Judges of the Superior, District, and

County Courts in each Province, except those of the Courts of Probate in Nova

Scotia and New Brunswick.

97 Until the Laws relative to Property and Civil Rights in Ontario, Nova Scotia,

and New Brunswick, and the Procedure of the Courts in those Provinces, are made

uniform, the Judges of the Courts of those Provinces appointed by the Governor

General shall be selected from the respective Bars of those Provinces.

…

99 (1) Subject to subsection (2) of this section, the judges of the superior courts

shall hold office during good behaviour, but shall be removable by the Governor

General on address of the Senate and House of Commons.

…

100 The Salaries, Allowances, and Pensions of the Judges of the Superior, District,

and County Courts … shall be fixed and provided by the Parliament of Canada.

⁶¹30 & 31 Vict., c. 3 (U.K.).

Page: 22

G.

Arbitration Clauses

[92] The arbitration clause in the governing contracts⁶²between Agrium and each of Orbis

Engineering and the Elliott companies⁶³states as follows:⁶⁴

28. PROPER LAW AND DISPUTE RESOLUTION

(a) Unless otherwise stated on the face of this Order, this Order shall for all purposes

be construed and interpreted according to the laws of the Province of Alberta and

the federal laws of Canada applicable herein, excluding reference to conflicts of

laws principles. Neither the Uniform Commercial Code, nor the United Nations

Convention for the International Sale of Goods shall apply to this Order. Any

dispute relating to this Order shall be resolved by arbitration in Calgary, Alberta,

Canada, pursuant to the UNCITRAL Model Law and Rules. The courts having

exclusive supervisory jurisdiction with respect to the matters relating to this Order

shall be the courts of the Province of Alberta.

(b) Buyer [Agrium] shall include provisions within its other agreements which

relate to this Order a dispute resolution provision substantially similar to that which

is contained herein. Vendor [Orbis Engineering] shall participate, upon the request

of Buyer, in any arbitration arising in connection with the Goods, the Services or

this Order, as if the Vendor were a direct party to the issue in dispute.

VI.

Analysis

A. The Governing Statutory Interpretation Principles

[93] The proper approach to interpreting statutory provisions is not contentious.⁶⁵

⁶²The applicability or effect of the mandatory arbitration provision that Elliott Turbomachinery presented to Agrium

with its quotations is not before the Court.

⁶³Agrium Inc. v. Colt Engineering Corp., 2020 ABQB 807, ¶ 3; Affidavit of Gabriel Salcedo (In Response to the

Summary Dismissal Application of the Defendant, Orbis Engineering Field Services Ltd.) filed November 1, 2019,

¶¶ 6 & 8 & Affidavit of Gabriel Salcedo (In Response to the Summary Dismissal Application of the Defendants,

Elliott Turbomachinery Canada Inc. and Elliott Company) filed November 1, 2019, ¶ 6. Appellant's Extracts of Key

Evidence 8 & 29.

64

Affidavit of Gabriel Salcedo (In Response to the Summary Dismissal Application of the Defendant, Orbis

Engineering Field Services Ltd.) filed November 1, 2019, Exhibit C, Services Purchase Order dated June 17, 2013,

Canadian Standard Purchasing Terms and Conditions. Appellant's Extracts of Key Evidence 23.

⁶⁵Alexis v. Alberta, 2020 ABCA 188, ¶ 42; 8 Alta. L.R. 7th 314, 333, leave to appeal ref’d, [2020] S.C.C.A. No. 227

per Wakeling & Greckol, JJ.A. (“The basic approach to a statutory interpretation problem is easy to state”) & Re:Sound

v. Motion Picture Theatre Assocs. of Canada, 2012 SCC 38, ¶ 25; [2012] 2 S.C.R. 376, 386 per LeBel, J. (“The main

Page: 23

1.

Basic Rules

[94] “[A] tribunal must read the entire statute”⁶⁶– other parts of a statute may affect the meaning

of words in the contested provision – and statutes on the same subject matter.⁶⁷An adjudicator

must understand the comprehensive statutory regime.

[95] In reading statutory text a tribunal must be mindful that statutes “obviate some mischief,

... supply an inadequacy, ... [or] formulate a plan of government”.⁶⁸The goal is to identify a

statutory purpose that animates the text.⁶⁹

issue in this appeal involves the application of well-known principles of statutory interpretation”). See Re Rizzo &

Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, 41 per Iacobucci, J. (“Elmer Driedger in Construction of Statutes (2d ed. 1983)

best encapsulates the approach upon which I prefer to rely. … ‘Today there is only one principle or approach, namely,

the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously

with the scheme of the Act, the object of the Act, and the intention of Parliament’”).

⁶⁶Alexis v. Alberta, 2020 ABCA 188, ¶ 43; 8 Alta. L.R. 7th 314, 334, leave to appeal ref’d, [2020] S.C.C.A. No. 227

per Wakeling and Greckol, JJ.A. See also Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, 41 per Iacobucci, J. (“the

words of an Act are to be read in their entire context”); Estate of Hicklin v. Hicklin, 2019 ABCA 136, ¶ 49; [2019] 6

W.W.R. 238, 255 (“an adjudicator interpreting a … statute must read the whole … statute”); K & S Lake City

Freighters Pty. Ltd. v. Gordon & Gotch Ltd., 1985 HCA 48; 157 C.L.R. 309, 315 per Mason, J. (“to read the section

in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation

that requires the words of a statute to be read in their context”); Panama Ref. Co. v. Ryan, 293 U.S. 388, 439 (1935)

per Cardozo, J. (“the meaning of a statute is to be looked for not in any single section, but in all the parts together, and

in their relation to the end in view”); R. Sullivan, The Construction of Statutes 395 (7th ed. 2022) (“In looking at the

Act as a whole, the courts focus on any provision or series of provisions that in their opinion is capable of shedding

light on the interpretive problem at hand”) & A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts

167 (2012) (“Context is a primary determinant of meaning. A legal instrument typically contains many interrelated

parts that make up the whole. The entirety of the document thus provides the context for each of its parts”).

⁶⁷Alexis v. Alberta, 2020 ABCA 188, n. 32; 8 Alta. L.R. 7th 314, n. 32, leave to appeal ref’d, [2020] S.C.C.A. No.

227 per Wakeling & Greckol, JJ.A. (“legislatures undoubtedly intend to create a network of obligations and

responsibilities that are consistent and to use text in a consistent manner, even though the same subject matter is dealt

with in more than one enactment”); Acciona Infrastructure Canada Inc. v. Posco Daewoo Corp., 2019 ABCA 241, ¶

76; 91 Alta. L.R. 6th 59, 80-81 per Wakeling, J.A. (“It is necessary to examine the entire International Commercial

Arbitration Act and its sister enactment, the Arbitration Act, in order to determine whether the enactments’ use of the

singular and plural forms are consistent. When does the plural include the singular or the singular include the plural?”);

R. Sullivan, The Construction of Statutes 408 (7th ed. 2022) (“The provisions of related legislation are read in the

context of others and the presumptions of coherence and consistent expression apply as if the provisions of these

statutes were part of a single Act”); D. Pearce, Statutory Interpretation in Australia 119 (9th ed. 2019) (“reference may

be made to similar statutes within the same jurisdiction in ascertaining the meaning of an Act before the court”) & A.

Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 252 (2012) (“laws dealing with the same subject

… should if possible be interpreted harmoniously”).

⁶⁸Frankfurter, “Some Reflections on the Reading of Statutes”, 47 Colum. L. Rev. 527, 538-39 (1947).

⁶⁹Alexis v. Alberta, 2020 ABCA 188, ¶ 44; 8 Alta. L.R. 7th 314, 335 leave to appeal ref’d, [2020] S.C.C.A. No. 227

per Wakeling & Greckol, JJ.A. (“a tribunal must attempt to identify why the legislature passed the statute”).

Page: 24

[96] The completion of these necessary tasks puts the tribunal in the best position to undertake

the next part of the protocol – “identify the potential permissible meanings [of the statute’s words]

taking into account their ordinary meanings”.⁷⁰In Alexis v. Alberta,⁷¹this Court stated that “[a]

permissible meaning is one that a reasonable reader who uses the language correctly would give

the text at the time of its production”.

[97] It goes without saying that a tribunal may never give statutory text a meaning it “cannot

possibly bear”.⁷²

[98] If the statutory text – a word, a phrase, or a sentence – bears only one plausible meaning,

the interpretative inquiry is at an end.⁷³

[99] Suppose city councillors receive numerous complaints that some residents are mowing

their lawns after dark and disturbing the peace and quiet of neighborhoods to such a degree that

70

Humphreys v. Trebilcock, 2017 ABCA 116, ¶ 109; [2017] 7 W.W.R. 343, 375, leave to appeal ref’d, [2017]

S.C.C.A. No. 228. See The Queen v. D.A.I., 2012 SCC 5, ¶ 26; [2012] 1 S.C.R. 149, 166 per McLachlin, C.J. (“The

first and cardinal principle of statutory interpretation is that one must look to the plain words of the provision”); The

Queen v. Secretary of State for the Environment, Transport and the Regions, ex p. Spath, Holme Ltd., [2001] 2 A.C.

349, 397 per Lord Nicholls (“language is to be taken to bear its ordinary meaning in the general context of the statute”)

& Caminetti v. United States, 242 U.S. 470, 485-86 (1917) per Day, J. (“Statutory words are uniformly presumed,

unless the contrary appears, to be used in their ordinary and usual sense, and with the meaning commonly attributed

to them”).

⁷¹2020 ABCA 188, ¶ 47; 8 Alta. L.R. 7th 314, 335-36, leave to appeal ref’d, [2020] S.C.C.A. No. 227 per Wakeling

& Greckol, JJ.A.

⁷²Zuk v. Alberta Dental Ass’n, 2018 ABCA 270, ¶ 159; 426 D.L.R. 4th 496, 539, leave to appeal ref’d, [2018] S.C.C.A.

No. 439. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 31 (2012) (“A fundamental rule

of textual interpretation is that neither a word nor a sentence may be given a meaning that it cannot bear”); Alexis v.

Alberta, 2020 ABCA 188, ¶ 73; 8 Alta. L.R. 7th 314, 343, leave to appeal ref’d, [2020] S.C.C.A. No. 227 per Wakeling

& Greckol, JJ.A. (“Words cannot be given a meaning they cannot possibly bear”); Canada v. Canada North Group

Inc., 2019 ABCA 314, ¶ 112; 437 D.L.R. 4th 122, 172, aff’d, 2021 SCC 30 per Wakeling, J.A. (“Fidelity to statutory

text is a fundamental feature of statutory interpretation. Courts that ignore the text act as unauthorized legislators.

They disregard the primacy of parliament and the paramountcy of the rule of law in our legal system”) & SZTAL v.

Minister of Immigration and Border Protection, [2017] HCA 34, ¶ 94; 347 A.L.R. 405, 429 per Edelman, J. (“where

a statute employs a term in its ordinary sense there can be no warrant for the extension of the meaning beyond its

ordinary sense”). E.g., Lafarge Canada Inc. v. City of Edmonton, 2013 ABCA 376, ¶ 31; 25 C.L.R. 4th 208, 216 (“To

treat this Statement of Claim as a form of notification of arbitration under s. 23 does not amount to giving a liberal

reading to s. 23 of the Act but bursts its conceptual boundaries”).

⁷³Thomson v. Canada, [1992] 1 S.C.R. 385, 399 per Cory, J. (“when the words used in the statute are clear and

unambiguous, no other step is needed to identify the intention of Parliament”) & Alexis v. Alberta, 2020 ABCA 188,

¶ 49; 8 Alta. L.R. 7th 314, 337, leave to appeal ref’d, [2020] S.C.C.A. No. 227 per Wakeling & Greckol, JJ.A. (“If the

statutory text supports only one plausible or permissible meaning, the inquiry is complete. In this scenario there is no

need to take into account the enactment’s purpose”). See Canada v. Canada North Group Inc., 2019 ABCA 314, ¶

124; 437 D.L.R. 4th 122, 176, aff’d, 2021 SCC 30 per Wakeling, J.A. (“A court has no authority to ignore or revise

clear and unambiguous text that bears only one meaning just because the court considers the substantive norm

embodied in the text to be unwise or dangerous”).

Page: 25

children cannot sleep. Council passes a bylaw to ameliorate the problem: “A person in areas

designated residential zones must not operate a lawn mower between 9:00 p.m. and 8:00 a.m. the

next day”. The bylaw does not define a lawn mower. A bylaw enforcement officer charges a person

operating a reel push lawn mower with a contravention of this bylaw. The adjudicator convicts the

accused, satisfied that a reel push lawn mower is a lawn mower – Webster’s Third New

International Dictionary of the English Language uses a picture of a reel push lawn mower to

illustrate its definition: “lawn mower …: hand-operated or power-operated machine for cutting

grass on lawns”. This is the correct disposition. The bylaw prohibits in unambiguous terms the use

of a lawn mower during prescribed hours. The text could have focused on gasoline-powered lawn

mowers or lawn mowers that generate an amount of noise beyond a prescribed level but it did not.

[100] If statutory text may have more than one plausible meaning, the tribunal must “select the

option that best advances the purpose that accounts for the text”.⁷⁴Section 10 of the Interpretation

Act⁷⁵confirms the merit of this part of the protocol: “An enactment shall be construed as being

remedial, and shall be given the fair, large and liberal construction and interpretation that best

ensures the attainment of its objects”.

[101] To repeat, a tribunal must not rely on the purpose of an enactment to give text a meaning

it cannot plausibly bear.⁷⁶

[102] Suppose a workers’ compensation act compensates a worker who suffers an injury arising

out of and in the course of employment. Injury is defined to exclude a death attributable solely to

the decision of a worker to take his or her own life. The board administering the act could not

ignore the text’s treatment of suicide and award compensation to the dependents of a worker who

commits suicide because the board is convinced this is the right decision – the worker left a wife

⁷⁴Humphreys v. Trebilcock, 2017 ABCA 116, ¶ 109; [2017] 7 W.W.R. 343, 375-76, leave to appeal ref’d, [2017]

S.C.C.A. No. 228. See McBratney v. McBratney, 59 S.C.R. 550, 561 (1919) per Duff, J. (“where you have rival

constructions of which the language of the statute is capable you must resort to the object ... of the statute ... [and

adopt] the construction which best gives effect to the governing intention”); Celgene Corp. v. Canada, 2011 SCC 1,

¶ 21; [2011] 1 S.C.R. 3, 13 per Abella, J. (“The words, if clear, will dominate; if not, they yield to an interpretation

that best meets the overriding purpose of the statute”) & Hamilton v. Rathbone, 175 U.S. 414, 419 (1899) per Brown,

J. (“where a statute is ... susceptible upon its face of two constructions, the court may look into ... the purpose intended

to be accomplished by it, to determine its proper construction”).

⁷⁵R.S.A. 2000, c. I-8.

⁷⁶Re:Sound v. Motion Picture Theatre Assocs. of Canada, 2012 SCC 38, ¶ 33; [2012] 2 S.C.R. 376, 389 per LeBel,

J. (“Although statutes may be interpreted purposively, the interpretation must nevertheless be consistent with the

words chosen by Parliament”); Shell Canada Ltd. v. Canada, [1999] 3 S.C.R. 622, 642 per McLachlin, J. (“the general

object and spirit of the provision at issue can never supplant a court’s duty to apply an unambiguous provision of the

Act ... . Where the provision at issue is clear and unambiguous, its terms must simply be applied”); Covert v. Nova

Scotia, [1980] 2 S.C.R. 774, 807 per Dickson, J. (“Although a court is entitled ... to look to the purpose of the Act ...

it must still respect the actual words which express the legislative intention”) & Alexis v. Alberta, 2020 ABCA 188, ¶

74; 8 Alta. L.R. 7th 314, 343 leave to appeal ref’d, [2020] S.C.C.A. No. 227 per Wakeling & Greckol, JJ.A. (“A

statute’s purpose can never justify a court assigning to text a meaning it cannot bear”).

Page: 26

and five children without a breadwinner. As Justice Stratas aptly explained, “[adjudicators] ... are

bound by the legislation. They must take it as it is. They may not insert into it the meaning that

they want”.⁷⁷Purpose never trumps text.⁷⁸

2.

Presumptions

[103] On occasion, consideration of a statutory interpretation presumption assists in resolving a

contest as to the meaning of a statutory provision.

[104] This is the case here.

[105] Professor Sullivan states that “[i]t is presumed that the legislature intends to comply with

any and all limits on its jurisdiction”.⁷⁹Justice Scalia and Professor Garner noted that “[t]he

presumption of validity disfavors interpretations that would nullify the provision or the entire

instrument – for example, an interpretation that would cause ... a statute to be unconstitutional”.⁸⁰

[106] The Queen v. McKay⁸¹illustrates this presumption. A Township of Etobicoke bylaw

prohibited a residential property owner from displaying a sign not expressly authorized by the

bylaw – a for-sale or no-trespassing sign, for example, were expressly authorized.

[107] During a federal election, the McKays, Etobicoke residential property owners, displayed a

small election sign endorsing a federal New Democratic Party candidate. They were charged with

and convicted of breaching Etobicoke’s no-sign bylaw.

⁷⁷Williams v. Canada, 2017 FCA 252, ¶ 50; 417 D.L.R. 4th 173, 189 per Stratas, J.A. See Alberta v. McGeady, 2014

ABQB 104, ¶ 23; [2014] 7 W.W.R. 559, 571, aff’d, 2015 ABCA 54, leave to app. ref’d, [2015] S.C.C.A. No. 91 per

Wakeling, J. (“No ... decision maker can ignore substantive statutory provisions because it believes [the statutory

provisions produce] ... unfair results and adopt another norm which it is satisfied produces a more satisfactory result”).

⁷⁸Weir-Jones Technical Services Inc. v. Purolator Courier Ltd., 2019 ABCA 49, ¶ 190; 442 D.L.R. 4th 9, 125 per

Wakeling, J.A. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 57 (2012) (“purpose …

cannot be used to contradict text or to supplement it. Purpose sheds light only on deciding which of various textually

permissible meanings should be adopted”) (emphasis in original).

⁷⁹R. Sullivan, The Construction of Statutes 516 (7th ed. 2022).

⁸⁰Reading Law: The Interpretation of Legal Texts 66 (2012).

⁸¹[1965] S.C.R. 798. See also The Queen v. Sharpe, 2001 SCC 2, ¶ 33; [2001] 1 S.C.R. 45, 75 per McLachlin, C.J.

(“If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading

should be adopted”); Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, 1078 per Lamer, J. (“this Court

... should ... not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the

Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted

as not allowing the Charter rights to be infringed”) & Panama Ref. Co. v. Ryan, 293 U.S. 388, 439 (1935) per Cardozo,

J. (“when a statute is reasonably susceptible of two interpretations, by one of which it is unconstitutional and by the

other valid, the court prefers the meaning that preserves to the meaning that destroys”).

Page: 27

[108] The Supreme Court of Canada, satisfied that Etobicoke had no authority to regulate the

use of federal election signs,⁸²invoked the presumption in favor of validity – “if words in a statute

are fairly susceptible of two constructions of which one will result in the statute being intra vires

and the other will have the contrary result the former is to be adopted”⁸³– and acquitted the

McKays. There were two options – a federal election sign is either a sign captured by the bylaw

because the text of the bylaw utilizes general terms or it is not, because the municipality has no

authority to regulate federal election signs and it is presumed the municipality would not enact an

ultra vires bylaw.

[109] Had the Etobicoke Bylaw expressly prohibited a residential property owner from

displaying a sign during a federal election identifying the property owner as a supporter of a

candidate, the property owner, if charged with a contravention of the bylaw, would have been

forced to challenge the constitutionality of the bylaw.⁸⁴The presumption in favor of validity would

not have assisted the property owner – there was no plausible construction that was constitutional.

B.

Section 7(6) of the Arbitration Act Prohibits Appeals Against an Order of a

Master in Chambers Under Section 7(1) of the Arbitration Act to a Judge of the

Court of Queen’s Bench of Alberta

1.

The Purpose of the Arbitration Act

[110] A review of the Arbitration Act⁸⁵as a whole makes it very clear that the Act recognizes the

value of arbitration as a desirable dispute resolution option and directs courts to do what is required

to make the arbitration process efficacious and do nothing that will impair the efficaciousness of

the arbitration process.⁸⁶Doing so furthers the two principles underlying arbitration legislation:

⁸²The Queen v. McKay, [1965] S.C.R. 798, 804 per Cartwright, J.

⁸³Id.

⁸⁴The Queen v. Conway, 2010 SCC 22, ¶ 97; [2010] 1 S.C.R. 765, 810 (“barring a constitutional challenge to the

legislation, no judicial fiat can overrule Parliament’s clear expression of intent”).

⁸⁵R.S.A. 2000, c. A-43.

⁸⁶ENMAX Energy Corp. v. TransAlta Generation Partnership, 2022 ABCA 206, ¶ 29 (“The overarching purpose of

arbitration legislation is to promote adherence to agreements, efficiency, and fairness and to lend credibility to an

important dispute resolution process: ... . Arbitrations are intended to provide a faster and less expensive process to

resolve disputes”) & B. Casey, Arbitration Law of Canada: Practice and Procedure 319-20 (3d ed. 2017) (“All of the

Domestic and International Acts start with the basic proposition that no court is to intervene in matters governed by

the respective Act, except as the Act provides. ... The clear mandatory language displaces the concept that the courts

have an overriding or inherent supervisory jurisdiction over arbitration tribunals. .... The courts have four general roles

in the arbitration process: 1. Requiring parties to honour their obligations under arbitration agreements; 2. Supervising

the conduct of the arbitration and the arbitrators to the extent permitted by law, if the place of arbitration is within the

jurisdiction of the court; 3. Where requested, providing assistance in the conduct of the arbitration, usually, but not

necessarily, when the place of arbitration is within the jurisdiction of the court; and 4. Enforcing arbitral awards

regardless of where they were made”).

Page: 28

parties should be permitted to determine for themselves the dispute resolution mechanism they

wish to use and ought to be held to that agreement, and when they choose arbitration courts should

be minimally involved⁸⁷in that process.⁸⁸

[111] Accordingly, the Arbitration Act does not bestow a prominent role on the courts. This

Court’s judgment in Lamb v. AlanRidge Homes Ltd.⁸⁹confirms this: “[S]ection 7(6) reflects an

important policy consideration, namely that the process of determining whether the parties should

proceed with arbitration, or legal proceedings, should not become bogged down by resort to the

appeal process”.

[112] Section 6 of the Arbitration Act confirms the limited role of the courts:

6 No court may intervene in matters governed by this Act, except for the following

purposes as provided by this Act:

(a) to assist the arbitration process;

⁸⁷B. Casey, Arbitration Law of Canada: Practice and Procedure 319 (3d ed. 2017) (“While many in the arbitration

field speak of court ‘intervention’, the courts in Canada, for the most part, have come to recognize that commercial

arbitration has evolved to become an important dispute resolution mechanism and today it is more appropriate to speak

in terms of court ‘involvement’ where necessary to facilitate the arbitral process. Courts and arbitral tribunals have

both come to recognize the need for and the contribution of the other. Together ... [they] provide a sophisticated regime

for the resolution of commercial disputes in Canada”).

⁸⁸TELUS Communications Inc. v. Wellman, 2019 SCC 19, ¶¶ 52 & 55; [2019] 2 S.C.R. 144, 178 & 179 per Moldaver,

J. (“The policy that parties to a valid arbitration agreement should abide by their agreement gives effect to the concept

of party autonomy — which, in the arbitration context, stands for the principle that parties should generally be allowed

to craft their own dispute resolution mechanism through consensual agreement ... . .... The policy ... goes hand in hand

with the principle of limited court intervention in arbitration matters. This latter principle finds expression throughout

modern Canadian arbitration legislation ... and has been described as a ‘fundamental principle underlying modern

arbitration law’ ... . This principle is embedded most visibly in ss. 6 and 7 of the Arbitration Act”) & Alberta Law

Reform Institute, Arbitration Act: Stay and Appeal Issues Final Report (2013) v (“ALRI reaffirms the two fundamental

principles underlying the Alberta Act: the principle of party control and the principle of restricted court intervention”),

¶¶ 10, 12 & 14 (“The law of arbitration rests on the principle of party control. The parties’ freedom to contract governs

the arbitration process and must be respected. As a general rule, party control means that the parties can make whatever

agreement they want concerning what is to be arbitrated, how issues will be identified, how the arbitrator will be

chosen and what the rules of the arbitration will be. The parties agree to participate in the arbitration. .... Party control

is a fundamental principle underlying the Alberta Act. .... In the Alberta Act and Uniform Act, the principle of party

control is balanced against the principle of equal and fair treatment. Party control should be overridden only when

needed to ensure equal treatment and fairness between the parties”) & 19 (“Another fundamental principle underlying

modern arbitration law is that court involvement or intervention in the arbitration process should be strictly limited.

In many ways, this principle is a counterpart to the principle of party control. If parties choose to resolve their disputes

privately outside the public court system, they should be left to that choice and not be subject to court intervention,

except as needed to determine validity of the arbitration agreement or to ensure standards of basic procedural fairness

for the arbitral process”).

⁸⁹2009 ABCA 343, ¶ 14; 312 D.L.R. 4th 719, 723, leave to app. ref’d, [2009] S.C.C.A. No. 520.

Page: 29

(b) to ensure that an arbitration is carried on in accordance with the arbitration

agreement;

(c) to prevent manifestly unfair or unequal treatment of a party to an arbitration

agreement;

(d) to enforce awards.

[113] As Justice Moldaver recently observed,⁹⁰“[section] 6 [of Ontario’s Arbitration Act] signals

that courts are generally to take a ‘hands off’ approach to matters governed by the Arbitration Act”.

This applies equally to Alberta’s legislation.⁹¹

[114] Section 7 also makes it clear that parties that have agreed to submit their disputes to

arbitration can expect a court, in the absence of exceptional circumstances catalogued in section

7(2), to order them to honor their commitments.⁹²This a court does by staying an action.⁹³

[115] Section 7(6) plays an important role in ensuring that courts do no more than is necessary

to ensure the integrity of an arbitration agreement. While a party may invoke section 7(1) claiming

that it and the nonmoving party have agreed to arbitrate their disputes, the Act allows only the

original court to determine the merits of a stay application.⁹⁴By denying appeals of section 7

⁹⁰TELUS Communications Inc. v. Wellman, 2019 SCC 19, ¶ 56; [2019] 2 S.C.R. 144, 180 per Moldaver, J. Section 6

of Ontario’s Arbitration Act, S.O. 1991, c. 17, mirrors Alberta’s legislation: “No court shall intervene in matters

governed by this Act, except for the following purposes, in accordance with this Act: 1. To assist the conducting of

arbitrations. 2. To ensure that arbitrations are conducted in accordance with arbitration agreements. 3. To prevent

unequal or unfair treatment of parties to arbitration agreements. 4. To enforce awards”.

⁹¹Alberta Law Reform Institute, Arbitration Act: Stay and Appeal Issues Final Report ¶ 21 (2013) (“One of the

Alberta Act’s main features is the statutory enshrinement of the fundamental principle of restricted court intervention.

Section 6 prohibits court intervention except for specified purposes as provided by the Act. This principle is further

reflected in restricted court authority to refuse a stay of court proceedings under section 7 and to hear appeals under

section 44”).

⁹²Id. ¶ 26 (“If a party to an arbitration agreement commences a court proceeding regarding a dispute covered by that

agreement, the Alberta Act is designed to force that party to honour the agreement to arbitrate, except in very limited

and specified circumstances [as set out in section 7]”).

⁹³TELUS Communications Inc. v. Wellman, 2019 SCC 19, ¶ 51; [2019] 2 S.C.R. 144, 177-78 per Moldaver, J.

(“Issuing a stay of court proceedings is one of the ways in which courts may give effect to the policy that the parties

to a valid arbitration agreement should abide by their agreement. ... [A] stay of court proceedings is simply ‘an indirect

method of enforcing an arbitration agreement’”).

94

The Alberta Law Reform Institute confirmed the desirability of its approach. Alberta Law Reform Institute,

Arbitration Act: Stay and Appeal Issues Final Report ¶¶ 85-88 (2013) (“Section 7(6) of the Alberta Act provides that

a Court of Queen’s Bench decision under section 7 cannot be appealed to the Court of Appeal. Case law modifies this

absolute prohibition, however, by providing that an appeal is not barred where a stay is refused because the arbitration

agreement is held to be invalid or otherwise inapplicable. If the appellate court reaches the contrary decision and holds

that the arbitration agreement is indeed valid and applicable, the case will then be remitted to the lower court to decide

Page: 30

decisions made by a master in chambers or a judge of The Provincial Court of Alberta to a judge

of the Court of Queen’s Bench or a judge of the Court of Queen’s Bench of Alberta to the Court

of Appeal, the Act directs parties to abide by the finding of the original decision maker asked to

determine if the nonmoving party must be held to its promise to arbitrate disputes.

2.

Permissible Meanings of Section 7(6) of the Arbitration Act

a. The Meaning of Section 7(6) Is Indisputable

[116] Section 7(6) of the Arbitration Act⁹⁵– “[t]here is no appeal from a court’s decision under

this section” – indisputably states that a party to an agreement that contains a mandatory arbitration

the stay application. That stay decision cannot then be appealed. A respondent proposed that section 7(6) be amended

to allow an appeal, with leave, of any stay decision. The respondent submitted that this would allow the Court of

Appeal ‘to clarify legal differences arising amongst Queen’s Bench judges, without the need for legislative reform.’

No modern Canadian arbitration statute provides for an appeal of a stay decision. ... The policy in this area uniformly

curtails appeals in the interest of finality and preventing delay in the arbitral process. The Supreme Court of Canada

would more than likely respect this policy as well. ALRI does not support broadening section 7(6) to provide a general

ability to appeal stay decisions”). Cf. Uniform Law Conference of Canada, Uniform Arbitration Act (2016), s. 7(7)

(“A party may appeal a decision of a court under this section [Stay of court proceedings]”) & 6 (“Commentary: ...

Subsections 7(5) and (6) of the previous Uniform Arbitration Act ... suggests that where a court finds that it is not

‘reasonable’ to separate matters required to be arbitrated from those not required to be arbitrated, the court could refuse

a stay, and that the court’s finding on that issue is final and binding. The new text deletes subsections 7(5) and (6).

This is consistent with the approach recommended by the Alberta Law Reform Institute”).

⁹⁵R.S.A. 2000, c. A-43. See also The Arbitration Act, 1992, S.S. 1992, c. A-24.1, s. 8(6) (“There is no appeal from

the court’s decision pursuant to this section”); The Arbitration Act, C.C.S.M., c. A120, s. 7(6) (“There is no appeal

from the court's decision under this section”); Arbitration Act, 1991, S.O. 1991, c. 17, s. 7(6) (“There is no appeal

from the court’s decision”); Arbitration Act, R.S.N.B. 2014, c. 100, s. 7(6) (“There is no appeal from the court’s

decision”); Arbitration Ordinance, 2011 H.K.L. No. 38, s. 20(8) (“A decision of the court to refer the parties to

arbitration under – (a) article 8 of the UNCITRAL Model Law, given effect to by subsection (1); or (b) subsection (2),

is not subject to appeal. (9) The leave of the court making a decision to refuse to refer the parties to arbitration under

– (a) article 8 of the UNCITRAL Model Law ... is required for any appeal from that decision”) & Federal Arbitration

Act, 9 U.S.C. § 3 (“Stay of proceedings where issue therein referable to arbitration. If any suit or proceeding be brought

in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such

arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or

proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial

of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant

for the stay is not in default in proceeding with such arbitration”) & § 16 (“Appeals ... (b) Except as otherwise provided

in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order – (1) granting a stay of any

action under section 3 of this title”). With the exception of British Columbia and Quebec, those provinces that do not

bar appeals of stay decisions appear to have retained the stay application language found in the Arbitration Act, 1889,

c. 49, s. 4 (U.K.) (“If any party to a submission, or any person claiming through or under him, commences any legal

proceedings in any court against any other party to the submission, or any person claiming through or under him, in

respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and

before delivering any pleadings or taking any other steps in the proceedings, apply to that court to stay the proceedings,

and that court or a judge thereof if satisfied that there is no sufficient reason why the matter should not be referred in

accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and

still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order

Page: 31

provision and is either the moving or nonmoving party to an application for a stay of a court action

under section 7(1) may not appeal an order adverse to its interests made by a judge of The

Provincial Court of Alberta, a master in chambers or a judge of the Court of Queen’s Bench of

Alberta to a court established by an enactment of the Legislative Assembly of Alberta – a judge of

the Court of Queen’s Bench of Alberta⁹⁶or the Court of Appeal of Alberta.⁹⁷

b.

Key Section 7(6) Queries

[117] Three questions must be asked when considering the effect of section 7(6) of the

Arbitration Act.

i.

A Decision of a Master Is a Decision of the Court of

Queen’s Bench

[118] Is the decision of a master in chambers of the Court of Queen’s Bench of Alberta a

“decision” of the Court of Queen’s Bench of Alberta?

[119] It is.

[120] The Court of Queen’s Bench Act⁹⁸stipulates that masters in chambers are “officers of the

court”. The fact that masters in chambers are not judges⁹⁹of the Court of Queen’s Bench does not

mean that their decisions are not decisions of the Court of Queen’s Bench.

staying the proceedings”) (emphasis added). See Arbitration Act, R.S.N.S. 1989, c. 19, s. 7; Arbitration Act, R.S.P.E.I.

1988, c. A-16, s. 7; Arbitration Act, R.S.N.L. 1990, c. A-14, s. 4; Arbitration Act, R.S.Y. 2002, c. 8, s. 9; Arbitration

Act, R.S.N.W.T. 1988, c. A-5, s. 10(2) & Arbitration Act, R.S.N.W.T. 1988, c. A-5, s. 10(2). Prince Edward Island

enacted the Arbitration Act, S.P.E.I. 1996, c. 4, repealing the current act, but this new act has not been proclaimed.

Prince Edward Island, Table of Public Acts (updated May 2022) 7. It introduced Bill 50, setting out a new arbitration

act, that was first read on February 22, 2022. Section 6(7) of that act provides that “[a] party may appeal a decision of

the court under this section”.

⁹⁶Court of Queen’s Bench Act, R.S.A. 2000, c. C-31, s. 2(1).

⁹⁷Court of Appeal Act, R.S.A. 2000, c. C-30.

⁹⁸R.S.A. 2000, c. C-31, s. 8(1).

⁹⁹The Court of Queen’s Bench of Alberta “consists of ... 74 other judges, who shall be called justices of the Court of

Queen’s Bench of Alberta”. Court of Queen’s Bench Act, R.S.A. 2000, c. C-31, s. 3(1)(c). A specific judge of the

Court of Queen’s Bench of Alberta is properly referred to as “Justice Smith”. See S. Bigelow, Legal Etiquette and

Court-Room Decorum 9 (1955) (“[A high court judge] should never be addressed or referred to as ‘Judge Jones’, an

unpardonable error, although intimately, he may be called ‘Judge’”). “Judge” or “judges” are the proper terms if the

reference is not to a specific judge or judges of the Court of Queen’s Bench. E.g., Court of Queen’s Bench Act, R.S.A.

2000, c. C-31, ss. 3-7, 7.1, 9, 12, 13, 24, 24.1 & 26 & Alberta Rules of Court, Alta. Reg. 124/2010, rr. 1.6, 4.13-.18,

4.21, 9.4 & 14.4.

Page: 32

ii.

A Section 7 Decision Has Four Components

[121] What is a “decision under this section”?

[122] This is not a challenging query.

[123] Section 7 of the Arbitration Act¹⁰⁰answers this question.

[124] A “decision under this section” has four components.

[125] First, there must be an application under section 7(1) of the Arbitration Act.¹⁰¹

[126] Second, the moving and nonmoving parties must have agreed to submit a difference the

subject of the court proceeding to arbitration.¹⁰²

¹⁰⁰R.S.A. 2000, c. A-43.

¹⁰¹Hnatiuk v. Assured Developments Ltd., 2012 ABCA 97, ¶ 40; 15 C.L.R. 4th 28, 38 (“The duty in s 7(1) of the

Arbitration Act to stay the suit in favor of arbitration, applies only if that is sought ‘on the application of another party

to the arbitration agreement’. Here no party moved for a stay, even at trial”). The fact that the applicant invoked section

7 is not, by itself, determinative. But it is an essential criterion. Cf. Toronto Standard Condominium Corp. No. 1628

v. Toronto Standard Condominium Corp. No. 1636, 2020 ONCA 612, ¶ 91; 454 D.L.R. 4th 126, 154 per Jamal, J.A.

(“ I would ... reject ... [the] proposition, that s. 7(6) bars an appeal from any motion brought under s. 7. Section 7(6)

refers to a ‘decision’, not to ‘a motion brought’, under s. 7. To state the obvious, a motion may be brought on one

statutory basis, but the court's decision may be made on a different basis. Citing s. 7 in a notice of motion does not bar

an appeal to this court. What matters is the statutory basis of the motion judge's ‘decision’ – whether the court's

decision was made under s. 7”) (emphasis in original).

¹⁰²A.G. Clark Holdings Ltd. v. HOOPP Realty Inc., 2013 ABCA 101, ¶¶ 3 & 13; 361 D.L.R. 4th 101, 105 & 107 (“If

the Agreement provides for the mandatory arbitration of disputes, then pursuant to s 7(1) of the Arbitration Act,

HOOPP’s court proceeding must be stayed to allow the arbitration to proceed (subject to the court’s discretion to

refuse to stay the proceeding in certain circumstances set out elsewhere in s 7). …. [I]f the motion judge holds there

is no applicable arbitration agreement upon which the proceedings could be stayed, then s 7(6) cannot be successfully

invoked to bar an appeal”); Lafarge Canada Inc. v. City of Edmonton, 2013 ABCA 376, ¶ 23; 25 C.L.R. 4th 208, 214

(“Whether an agreement contains a mandatory and relevant arbitration clause is a matter of contractual interpretation

and has implications, inter alia, for whether the appeal bar in s. 7(6) of the Arbitration Act applies to the situation”);

Federal Arbitration Act, 9 U.S.C. § 16(b)(1) (“Except as otherwise provided in section 1292(b) of title 28, an appeal

may not be taken from an interlocutory order … granting a stay of any action under section 3 of this title”); Eggiman

v. Martin, 2019 ONCA 974, ¶ 8, leave to appeal ref’d, [2020] S.C.C.A. No. 44 (“There is no appeal to this court from

the order of the motion judge. Section 7(6) is very clear on this point. If it is determined that the arbitration provision

applies to the issue that is raised in the proceeding, and thus s. 7 is invoked, then s. 7(6) precludes any appeal from the

decision rendered respecting the motion to stay, whether that order grants or refuses the stay”); Abbey Resources Corp.

v. Andjelic Land Inc., 2020 SKCA 125, ¶ 22 per Richards, C.J. (“The trial judge concluded that the arbitration clauses

in the leases between Abbey and Andjelic did not apply in the circumstances at hand. As a result, he did not make a

‘decision pursuant to this section’ as per s. 8(6) of the Arbitration Act. Abbey is therefore not barred from pursuing

this appeal”) (emphasis added); Brown v. Murphy, 59 O.R. 3d 404, 408 (C.A. 2002) per Charron, J.A. (“a decision

by the motions court that a matter was not subject to arbitration under the terms of the arbitration agreement fell

outside the scope of s. 7 and a right of appeal lay to this court from that decision”) (emphasis added) & Huras v.

Page: 33

[127] If a court in a section 7 application determines that the parties have agreed to submit all the

differences the subject of the court proceeding to arbitration and stays the court proceeding, the

order staying the court proceeding is not appealable.¹⁰³

[128] Suppose P, a prominent professional athlete, and L, a lawyer, enter into an agency

agreement whereby P agrees to retain L to negotiate P’s employment contract with X and

endorsement agreements for a fee dependent upon a number of complex variables. Both P and L

agree to submit any differences relating to fees L earns under the agreement to arbitrator W for

final resolution. L successfully negotiates P’s employment contract with X and endorsement

contracts with an automobile manufacturer, a watchmaker, a clothier, a distiller, a hotelier, and

others. P and L cannot agree on the fee P must pay L for the automobile manufacturer and

watchmaker endorsement contracts and L sues P. P invokes section 7 of the Arbitration Act and

applies to a judge of the Court of Queen’s Bench for a stay of L’s proceeding. The court orders a

stay – L’s claim is a difference covered by their agency agreement and must be submitted to

arbitration. Section 7(6) of the Arbitration Act applies. The Court of Appeal has no jurisdiction to

hear an appeal by L.

[129] The opposite would be the case – the order is subject to appeal – if the Court of Queen’s

Bench determined that none of the differences the subject of a court proceeding were a difference

under an arbitration agreement and dismissed a stay application.¹⁰⁴

[130] Suppose L told a newspaper reporter that P abused his wife and used cocaine. The

reporter’s newspaper published these allegations. They were widely circulated. As a result, the

automobile manufacturer and the watchmaker cancelled their endorsement contracts with P. P sues

Primerica Financial Services Ltd., 137 O.A.C. 79, ¶ 10 (2000) (“Where there is no arbitration clause, the Arbitration

Act, 1991 has no application, or putting it another way, the dispute lies beyond the scope of s. 7. It follows that if the

court has decided that the Act is not applicable, then the prohibition against an appeal in s. 7(6) is equally not

applicable”). Contra, Tatlow v. Carolina Homes Inc., 2010 ABQB 412, ¶ 7 (the Court of Queen’s Bench held that it

had no jurisdiction to hear an appeal against a Provincial Court decision holding that the arbitration term did not apply

to the dispute the subject of the proceeding).

103

B. Casey, Arbitration Law of Canada: Practice and Procedure 366-67 (3d ed. 2017) (“Under the Domestic

[arbitration] Acts, the court’s decision on a motion to stay a proceeding in the face of arbitration is said to not be

subject to appeal. However, if the Domestic Act does not apply, there is no prohibition on appealing. For example, if

the court at first instance finds that there is no arbitration agreement, ... [or] the matter is not arbitrable, then the

Domestic Act is not applicable and there is no prohibition on appealing. ... It is now well established that prohibition

respecting appeal does not preclude an appeal from an order refusing to grant a stay on the ground that the matter is

not subject to arbitration”).

¹⁰⁴K. McEwen & L. Herbst, Commercial Arbitration in Canada 3-183 (looseleaf rel. 17, 11/2020) (“a decision by the

motions court that a matter (or, where applicable, all the claims) is not subject to arbitration under the terms of the

arbitration agreement falls outside the scope of the stay provision and a right of appeal lies to the court of appeal from

that decision”).

Page: 34

L for defamation. L applies for a stay of P’s defamation action. P and L never agreed to submit the

issue of defamation to arbitrator W. A stay would be inappropriate.

[131] If a court determines that the parties have agreed to submit some of their differences the

subject of a court proceeding to arbitration but not all and stays, under section 7(5), the differences

the parties have agreed to submit to arbitration and allows the other differences to be litigated or

stays all of the differences in the court proceeding, such an order is not appealable.

[132] Suppose under the agency agreement L’s entire fee on endorsement contracts is paid from

the first of the periodic endorsement payments made to P. P claims that L owes him a portion of

the fee P has already paid L. P sues L for defamation and claims that L owes P for a portion of the

sums P has already paid L for the endorsement agreements with the automobile manufacturer and

the watchmaker. L, relying on section 7 of the Arbitration Act, applies to the Court of Queen’s

Bench for a stay of P’s court proceeding. The court, citing section 7(5), grants the stay of P’s

proceeding satisfied that it would be unreasonable to separate the differences and to have arbitrator

W resolve the contest as to the fees owed and the court resolve the defamation action. The two are

too closely connected to separate them. The Court of Appeal would have no jurisdiction, on

account of section 7(6) of the Arbitration Act, to hear an appeal by L.

[133] Had the court come to the opposite conclusion and, on account of section 7(5) of the

Arbitration Act, stayed the difference relating to the fees owed and allowed the defamation action

to proceed, the Court of Appeal would also be without jurisdiction to hear an appeal against a

partial stay.

[134] Or there may be a controversy as to the applicability of concepts that deprive the terms of

the parties’ agreement of their force – such as waiver¹⁰⁵– or a debate as to the applicability of the

criteria under section 7(2) of the Arbitration Act. If the court adjudges that the difference the

105

A. Swan, J. Adamski & A. Na., Canadian Contract Law 132 (4th ed. 2018) (“The party who waives strict

compliance with the contract may not – or at least not without giving notice – insist on punctual and exact

performance”); J. McCamus, The Law of Contracts 305 (3d ed. 2020) (“The doctrine of waiver is commonly illustrated

by reference to the decision of the House of Lords in Hughes v. Metropolitan Rwy Co. In this case a landlord had

given a notice to the tenant pursuant to the terms of the lease, requiring that certain repairs be made by the tenants

within six months. The tenant replied that he was willing to do the repairs but he would like to enter into negotiations

for the sale of the leasehold interest to the landlord and further indicated that he would not undertake the repairs during

negotiations to that end. The negotiations broke off a few months later and when six months from the initial notice to

repair had expired, the landlord purported to treat the lease as forfeited and brought an action to eject the tenant from

the premises. The House of Lords dismissed the claim on the basis that the ‘course of negotiation ... of the parties’

had led the tenant to believe that the time limit for repairs would not be strictly enforced by the landlord and

accordingly, that the landlord would not be permitted to enforce it. The landlord had waived his right to insist on strict

performance of the agreement and could not now insist on doing so”) & E. Farnsworth, Contracts 523 (4th ed. 2004)

(“A common ground for excuse of a condition is that, after the contract was made, the obligor promised to perform

despite the nonoccurrence of the condition or despite a delay in its occurrence. Such a promise is known as waiver”).

Page: 35

subject of the court proceeding is the subject of an agreement to arbitrate, the dissatisfied party

cannot appeal.

[135] It makes no sense to insulate an original court’s order from an appeal in order to expedite

the arbitration process in the absence of a judicial determination that the parties agreed to submit

the difference the subject of a court proceeding to arbitration.¹⁰⁶

[136] Third, the nonmoving party has commenced an action in the court against the moving

party.¹⁰⁷A party to an arbitration agreement cannot claim that another party has dishonored the

arbitration agreement until the other party has actually commenced an action.

[137] Fourth, the adjudicator – a judge or a master in chambers of the Court of Queen’s Bench¹⁰⁸

or a judge of The Provincial Court of Alberta – must issue a decision – stay the action commenced

¹⁰⁶Courts in Alberta have heard appeals from decisions involving stay applications under section 7 if there was no

applicable arbitration agreement. E.g., A.G. Clark Holdings Ltd. v. HOOPP Realty Inc., 2013 ABCA 101; 361 D.L.R.

4th 101, rev’ing 2012 ABQB 567 (allowed appeal from decision of chambers judge who dismissed application to

strike or stay under section 7 the action because the contract clause did not make arbitration mandatory but rather

made it available and required it only for disputes not resolved by other means including mediation, finding that the

chambers judge misinterpreted the agreement that did make arbitration mandatory and remitting the matter back for

determination on remaining issues, also concluding that section 7(6) did not bar the appeal because it does not apply

to a decision that there is no applicable arbitration agreement upon which the proceedings could be stayed, such as

that arbitration is not mandatory, but it would bar that court’s determination on the remaining issues); Millennial

Construction Ltd. v. 1021120 Alberta Ltd., 2005 ABQB 533 (dismissed appeal from unreported decision of master

who declined to grant a stay under section 7, on the basis that arbitration was only an option and not mandatory under

the contract so that section 7 does not apply and alternatively dismissed the stay application for undue delay, without

discussing section 7(6)) & Young v. Dollar Financial Group Inc., 2013 ABCA 264; 364 D.L.R. 4th 341, aff’ing 2012

ABQB 601; 356 D.L.R. 4th 346, leave to appeal ref’d, [2013] S.C.C.A. No. 399 & [2013] S.C.C.A. No. 400 (dismissed

appeal from decision of chambers judge who dismissed motion to stay proceedings under section 7(1) because the

arbitration clauses in the consumer contracts at issue did not govern).

¹⁰⁷Agrium Inc. v. Babcock & Wilcox Canada Ltd., 2005 ABCA 82, ¶ 12; 11 C.P.C. 6th 108, 112 per Fruman, J.A.

(“In this case the parties used mandatory language and none of the s. 7(2) exceptions apply. Because the underlying

arbitration is statute-barred, the statement of claim should be dismissed”) & HOOPP Realty Inc. v. A.G. Clark

Holdings Ltd., 2014 ABCA 20, ¶ 7; 31 C.L.R. 4th 173, 177, leave to appeal ref’d, [2014] S.C.C.A. No. 87 per Paperny,

J.A. (“The chambers judge correctly interpreted this Court’s decision in Babcock & Wilcox, which holds that if the

parties have agreed that they must arbitrate a dispute, but one party has issued a statement of claim and has not

commenced arbitration within the limitation period for arbitration, then the court must strike out the claim [under rule

3.68 of the Alberta Rules of Court]”).

¹⁰⁸See Wang v. Mattamy Corp., 2020 ONSC 7012, ¶ 17 per Penny, J. (“Master Muir’s decision ‘falls squarely’ within

the provisions of s. 7. Accordingly, it is not appropriate for the court to engage in an analysis of the Master’s decision

because any review of it is precluded by s. 7(6)”), review ref’d, 2021 ONSC 2635 (Div. Ct.) ¶¶ 6-7 per Favreau, J.

(“In his endorsement, the motion judge identified the correct test for deciding whether to extend the time for an appeal,

which includes consideration of the merits of the appeal. He ... correctly found that section 7(6) of the Arbitration Act,

1991 is a complete bar to the appeal. Section 7(6) of the Act provides that there is no appeal from a decision of the

court staying an action on the basis of an arbitration clause. ... I agree with the motion judge that, based on section

7(6) of the Arbitration Act, 1991, the proposed appeal is devoid of any merit”).

Page: 36

by the nonmoving party or dismiss the stay application allowing the nonmoving party to prosecute

the action.¹⁰⁹A ban against an appeal cannot be effective until there is a decision that might

otherwise have been appealed.¹¹⁰

¹⁰⁹Lafarge Canada Inc. v. City of Edmonton, 2013 ABCA 376, ¶ 38; 25 C.L.R. 4th 208, 217 (“Therefore, there has

been no decision whether the City by its conduct waived its right to insist on the arbitration clause and attorned to the

trial jurisdiction of the Court of Queen’s Bench or whether a motion for a stay has been unduly delayed such that the

Court of Queen’s Bench should exercise its jurisdiction under the Arbitration Act to refuse to stay the action”); Lamb

v. AlanRidge Homes Ltd., 2009 ABCA 343, ¶ 11; 312 D.L.R. 4th 719, 723, aff’ing 2009 ABQB 170; 309 D.L.R. 4th

214, leave to appeal ref’d, [2009] S.C.C.A. No. 520 (“We have concluded that the decision of the chambers judge was

made under section 7 [dismissed a stay application and allowed arbitration to proceed in part], so that subsection (6)

applies, and no appeal lies to this Court”) & Brown v. Murphy, 59 O.R. 3d 404, 407-08 (C.A. 2002) per Charron, J.A.

(“the bar under s. 7(6) [of Ontario’s Arbitration Act, 1991] applied to any decision by the motions court under s. 7 to

grant or refuse a stay of ‘a proceeding in respect of a matter to be submitted to arbitration under the agreement’ within

the meaning of s. 7(1)”) (emphasis omitted). See B. Casey, Arbitration Law of Canada: Practice and Procedure 366-

67 (3d ed. 2017) (“Under the Domestic Acts, the courts’ decision to refuse a stay of proceedings or, alternatively, its

decision to stay court proceedings and permit the arbitration to continue is said to be not subject to appeal. However,

if the Domestic Act does not apply, there is no prohibition on appealing. For example, if the court at first instance

finds that there is no arbitration agreement, the matter is not arbitrable, then the Domestic Act is not applicable and

there is no prohibition on appealing. ... If the stay is under the court’s inherent power to control its own proceedings

and not under the Domestic Act then normal appeal rights also flow. ... It is now well-established that prohibition

respecting appeal does not preclude an appeal from an order refusing to grant a stay on the ground that the matter is

not subject to arbitration”).

¹¹⁰Courts in Alberta have considered appeals from decisions involving stay applications under section 7 where the

decisions related to arbitration but were not made under section 7, sometimes considering the applicability of the

section 7(6) bar on appeals. E.g., Lafarge Canada Inc. v. City of Edmonton, 2013 ABCA 376; 25 C.L.R. 4th 208,

rev’ing 2012 ABQB 634 (allowed appeal from decision of chambers judge who dismissed application to strike under

r. 3.68 or stay under section 7 a claim and declare that arbitration is past limitation period on the basis that there was

no limitations defence and the statement of claim constituted notice of arbitration, finding that the claim could not be

notice of arbitration and remitting matter back to the Court of Queen’s Bench to decide stay application, noting that

section 7(6) did not prevent the appeal because the chambers judge did not finally decide whether the claim should be

stayed) & International Resource Management (Canada) Ltd. v. Kappa Energy (Yemen) Inc., 2000 ABCA 236; 266

A.R. 175 (denied application for summary dismissal of appeal from decision of chambers judge who dismissed appeal

from decision of master who granted a stay of proceedings under section 7 on condition that applicant pay into a trust

account the invoices in dispute in the action before it can proceed with the arbitration, condition that the respondents

had cross-applied for, on the basis that section 7(6) does not bar the appeal because both the master and chambers

judge imposed conditions on the arbitration, not on the stay, so it is not a decision under section 7; the Court later

allowed the appeal, set aside the chambers judge’s order imposing the condition and granted a unconditional stay:

2001 ABCA 146; 281 A.R. 373). Contra, Yaworski v. Gowling Lafleur Henderson LLP, 2013 ABCA 21, aff’ing 2012

ABQB 424, leave to appeal ref’d, 459 N.R. 395 (note) (dismissed appeal from decision of chambers judge who granted

a stay of proceedings against personal plaintiff pending arbitration between plaintiff’s professional corporation and

the defendant under section 7 and under section 18 of Judicature Act insofar as court had no jurisdiction with respect

to personal plaintiff under section 7 because he was not a party to the arbitration agreement, agreeing that two sections

combined provided the jurisdiction to grant the stay and noting that the arbitration would give the plaintiff, through

his personal corporation, effectively everything he sought in the claim, without discussing section 7(6)); Hnatiuk v.

Assured Developments Ltd., 2012 ABCA 97; 15 C.L.R. 4th 28, rev’ing 2010 ABQB 258; 92 C.L.R. 3d 216 (allowed

appeal from decision of trial judge who dismissed action commenced after an arbitral award was made on the ground

Page: 37

iii.

The Prohibition Against Appeals Applies to Decisions of

Both Masters in Chambers and a Judge of the Court of

Queen’s Bench

[138] Does the prohibition against appeals apply to decisions of both masters in chambers and

judges of the Court of Queen’s Bench?

[139] It does.

[140] The operative words in section 7(6) are “[t]here is no appeal”. This is straightforward.

[141] A party adversely affected by a decision of a judge of The Provincial Court of Alberta or a

master in chambers is bound by it unless a judge of the Court of Queen’s Bench of Alberta has

authority to hear an appeal on account of section 46(1) of the Provincial Court Act¹¹¹– “Any party

may appeal a decision of the Provincial Court to the Court of Queen’s Bench” – or section 12 of

the Court of Queen’s Bench Act¹¹²– “An appeal lies to a judge in chambers from a decision of a

master in chambers” – and allows the appeal.

[142] Because section 7(6) prohibits appeals of a section 7 order, a judge of the Court of Queen’s

Bench has no jurisdiction to hear an appeal against a section 7 order of a judge of the Provincial

Court or a master in chambers.

[143] If a moving party applied for a stay to a judge of the Court of Queen’s Bench, a party

adversely affected by the subsequent section 7 decision is bound unless the Court of Appeal has

authority to hear an appeal on account of section 3(b)(iv)(A) of the Judicature Act¹¹³– “The Court

of Appeal ... (b) has jurisdiction and power, subject to the Rules of Court, to hear and determine

... (iv) all appeals ... respecting a judgment, order or decision of (A) a judge of the Court of Queen’s

Bench” – and allows the appeal.

of res judicata because parties should have raised the issues in the claim during the arbitration, on the basis that no

one applied for a stay under section 7 and the defendant waived his right to arbitration and attorned to the court’s

jurisdiction by participating in the litigation for years, and even if an application under section 7 were made the delay

for it would be gross, without mentioning section 7(6)) & New Era Nutrition Inc. v. Balance Bar Co., 2004 ABCA

280; 245 D.L.R. 4th 107, rev’ing in part 2003 ABQB 509 (allowed appeal from part of decision of chambers judge

who dismissed application for declaration to stay arbitration (not litigation) in favour of concurrent court proceedings

in which the applicant relied on, among others, multiplicity of proceedings and abuse of process, staying the arbitration

under the court’s “residual jurisdiction to prevent unfairness set out in section 6(c)” on the basis that litigation was

necessary as it involved parties not subject to the arbitration agreement and the legislature’s amendments to section 7

recognizes that multiple proceedings on the same matter are undesirable, without discussing section 7(6) and where

no party sought a stay of the court proceedings under section 7).

¹¹¹R.S.A. 2000, c. P-31.

¹¹²R.S.A. 2000, c. C-31.

¹¹³R.S.A. 2000, c. J-2.

Page: 38

[144] Because section 7(6) prohibits appeals of a section 7 order, the Court of Appeal has no

jurisdiction to hear an appeal against a section 7 order of a judge of the Court of Queen’s Bench

of Alberta.

[145] There is only one plausible or permissible meaning that section 7(6) of the Arbitration Act

bears. A party that is bound by a mandatory arbitration agreement and adversely affected by a stay

application decision under section 7 of the Arbitration Act may not appeal a decision of a judge of

The Provincial Court of Alberta or a decision of master in chambers to a judge of the Court of

Queen’s Bench or a decision of a judge of the Court of Queen’s Bench to the Court of Appeal.

[146] This means that a judge of the Court of Queen’s Bench had no jurisdiction to hear an appeal

against the decision of Master Prowse.

[147] In order for the Arbitration Act¹¹⁴to allow appeals from a master in chambers to a judge of

the Court of Queen’s Bench, section 7(6) would have to look like this: “There is no appeal from a

decision of a judge of The Provincial Court of Alberta to a judge of the Court of Queen’s Bench

or of a judge of the Court of Queen’s Bench to the Court of Appeal under this section”. This version

– by making no mention of a decision of a master in chambers – does not, in any way, deprive

section 12 of the Court of Queen’s Bench Act – “An appeal lies to a judge in chambers from a

decision of a master in chambers” – of its full force.

3.

General Provisions in the Judicature Act, the Alberta Rules of Court,

and the Court of Queen’s Bench Act that Allow Appeals of Queen’s

Bench Decisions Do Not Assist the Respondents

[148] As already noted, section 3(b)(iv)(A) of the Judicature Act¹¹⁵expressly states that the Court

of Appeal has the general jurisdiction to hear and determine appeals from judgments, orders or

decisions of a judge of the Court of Queen’s Bench. To similar effect is rule 14.4(1) of the Alberta

Rules of Court:¹¹⁶“Except as otherwise provided, an appeal lies to the Court of Appeal from the

whole or any part of a decision of a Court of Queen’s Bench judge sitting in court or chambers

... .”

[149] Section 12 of the Court of Queen’s Bench Act states that “[a]n appeal lies to a judge in

chambers from a decision of a master in chambers”. So does rule 6.14(1) of the Alberta Rules of

Court: “If a master makes a judgment or order, the applicant or respondent ... may appeal the

judgment or order to a judge”.

¹¹⁴R.S.A. 2000, c. A-43.

¹¹⁵R.S.A. 2000, c. J-2.

¹¹⁶Alta. Reg. 124/2010.

Page: 39

[150] But these provisions are general grants of authority. Specific statutory provisions may limit

a general grant of authority. Professor Sullivan explains this concept:¹¹⁷“When two provisions are

in conflict and one of them deals specifically with the matter in question while the other has a more

general application, the conflict may be resolved applying the specific provision to the exclusion

of the more general one”. So do Justice Scalia and Professor Garner:¹¹⁸“If there is a conflict

between a general provision and a specific provision, the specific provision prevails. … Under this

canon, the specific provision is treated as an exception to the general rule”. Justice Scalia and

Professor Garner also explain why:¹¹⁹“Jeremy Bentham supplied the rationale: ‘[T]he particular

provision is established upon a nearer and more exact view of the subject than the general, of which

it may be regarded as a correction’. Or think of it this way: the specific provision comes closer to

addressing the very problem posed by the case at hand and is thus more deserving of credence”. I

agree. “It makes no sense to apply a general rule as opposed to a specific rule to a fact pattern

expressly dealt with by the specific rule”.¹²⁰

[151] Suppose parents tell their teenage daughter at the start of her grade-twelve year that her

curfew is midnight. But they also tell her and her date to her grade-twelve graduation celebration

that she must be home by 2 a.m. the night of the prom. A reasonable observer would understand

that the ordinary curfew is still in force for all evenings except the evening of the grade-twelve

prom. There is a specific curfew for prom night that supersedes the general curfew.

[152] Section 7(6) of the Arbitration Act¹²¹is a specific rule for appeals of section 7(1) stay

application orders. It applies in this case – not the general provisions incorporated in the Judicature

Act,¹²²the Court of Queen’s Bench Act¹²³and the Alberta Rules of Court.¹²⁴As a result, the

¹¹⁷The Construction of Statutes 354 (7th ed. 2022). See also Morton v. Mancari, 417 U.S. 535, 550-51 (1974) per

Blackmun, J. (“Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a

general one, regardless of the priority of enactment”) & The Queen ex rel. Vezina v. Canadian Broadcasting Corp.,

84 C.C.C. 3d 574 (Ont. C.A. 1993), leave to appeal ref’d, [1993] S.C.C.A. No. 524 (Canada Elections Act provisions

regulating broadcasters’ obligations during a federal election to provide paid and free time to registered political

parties, and not the Broadcasting Act’s general requirement that broadcasters treat accredited political parties

equitably, govern the obligation of broadcasters during federal general elections).

¹¹⁸Reading Law: The Interpretation of Legal Texts 183 (2012).

¹¹⁹Id.

¹²⁰Acciona Infrastructure Canada Inc. v. Posco Daewoo Corp., 2019 ABCA 241, ¶ 176; 91 Alta. L.R. 6th 59, 105

per Wakeling, J.A.

¹²¹R.S.A. 2000, c. A-43.

¹²²R.S.A. 2000, c. J-2, s. 3(b)(iv)(A).

¹²³R.S.A. 2000, c. C-31, s. 12.

¹²⁴Alta. Reg. 124/2010.

Page: 40

Judicature Act, the Court of Queen’s Bench Act and the Alberta Rules of Court do not assist the

respondents.

C.

Decisions of a Master in Chambers Under Section 7 of the Arbitration Act Are

Subject to Appellate or Judicial Review

[153] Mr. Drewry, Q.C., counsel for Orbis Engineering, and Mr. Popowich, counsel for the

Elliott companies, argue that section 7(6) of the Arbitration Act¹²⁵contravenes section 96 of the

Constitution Act, 1867¹²⁶if it is interpreted to insulate decisions of a master in chambers under

section 7(1) of the Arbitration Act from appeals to a judge of the Court of Queen’s Bench. They

ask us to interpret section 7(6) of the Arbitration Act so that it will comply with section 96 of the

Constitution Act, 1867 – allow a judge of the Court of Queen’s Bench to hear an appeal from a

decision of a master in chambers.

[154] The argument, ¹²⁷as I understand it, goes as follows. First, masters in chambers are

appointed by the provincial legislature. Second, a legislature cannot assign to a master the authority

that a superior court justice appointed under section 96 of the Constitution Act, 1867 would have.

Third, because masters do not have authority “in their own right”, a master cannot fetter the

discretion of a Court of Queen’s Bench judge, and as “final determination of a dispute between

the parties must be done by a judge”, a master’s decision must always be subject to appeal. Fourth,

on this basis, section 7(6) of the Arbitration Act cannot bar appeals from a master’s decision even

if they are entirely under section 7 of that act because doing so would grant the master authority

that is the “exclusive purview” of a superior court judge.

[155] It is necessary to explore some of these points.

¹²⁵R.S.A. 2000, c. A-43.

¹²⁶30 & 31 Vict., c. 3 (U.K.).

¹²⁷Factum of the Respondent Orbis Engineering Field Services Ltd. ¶¶ 83-84, 88 & 89-92. See also Factum of the

Respondents Elliott Turbomachinery Canada, Inc. and Elliott Company ¶¶ 63-76.

Page: 41

[156] It is not contentious that section 96 of the Constitution Act, 1867¹²⁸places limits on the

authority that a provincial legislature may delegate or assign¹²⁹to masters over and beyond the

authority vested in this office prior to July 1, 1867.¹³⁰

¹²⁸30 & 31 Vict., c. 3 (U.K.).

¹²⁹P. Hogg, Constitutional Law of Canada § 7:15 (5th ed. looseleaf rel. 2021-1) (“The courts have held that the

provincial Legislatures may not confer on a body other than a superior, district or county court judicial functions

analogous to those performed by a superior, district or county court. This little separation of powers doctrine has been

developed to preclude evasion of the stipulations of ss. 96 to 100 of the Constitution Act, 1867. If ss. 96 to 100 of the

Constitution Act, 1867 were read literally, they could easily be evaded by a province which wanted to assume control

of its judicial appointments. The province could increase the jurisdiction of its inferior courts so that they assumed

much of the jurisdiction of the higher courts; or the province could vest higher-court jurisdiction in a newly-established

tribunal, and call that tribunal an inferior court or an administrative tribunal. It is therefore not surprising that the

courts have added a gloss to s. 96 and the associated constitutional provisions. What they have said is this: if a province

invests a tribunal with a jurisdiction of a kind that ought properly to belong to a superior, district or county court, then

that tribunal, whatever its official name, is for constitutional purposes a superior, district or county court and must

satisfy the requirements of s. 96 and the associated provisions of the Constitution Act, 1867. This means that such a

tribunal will be invalidly constituted, unless its members (1) are appointed by the federal government in conformity

with s. 96, (2) are drawn from the bar of the province in conformity with ss. 97 and 98, and (3) receive salaries that

are fixed and provided by the federal Parliament in conformity with s. 100”); L. Abrams & K. McGuinness, Canadian

Civil Procedure Law 155 (2d ed. 2010) (“as provincial appointees, masters cannot be vested with the essential

jurisdiction of a section 96 judge under the Constitution Act, 1867”) & G. Watson & D. McKay, Holmsted and Watson:

Ontario Civil Procedure § 7:26 (looseleaf rel. no. 3, July 2022) (“Masters were provincially appointed court officers.

By s. 96 of the Constitution Act, 1867, the federal government is given the exclusive power to appoint ‘the Judges of

the Superior, District, and County Courts.’ Since masters were not so appointed, there are constitutional limits to the

power that can be given to them”). See also MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, 737 per Lamer,

C.J. (s. 96 of the Constitution Act, 1867 ... limits both Parliament and the provincial legislatures”) & Ontario v. Victoria

Medical Building Ltd., [1960] S.C.R. 32, 43 (1959) per Judson, J. (“everything the Master does must be authorized by

the Rules of Practice, The Judicature Act or some other statute. This does not mean, however, that the Legislature can

assign any and all work to him. Section 96 operates as a limiting factor. If this were not so, there would be nothing to

prevent the withdrawal of any judicial function from a s. 96 appointee and its assignment to the Master”).

¹³⁰G. Watson & D. McKay, Holmsted and Watson: Ontario Civil Procedure § 7:26 (looseleaf rel. no. 3, July 2022)

(“Stated generally, subject to the jurisdiction acquired and exercised by masters prior to Confederation, a master could

not exercise judicial power which historically could be exercised only by superior and district court judges: ... . This

constitutional limitation was well established; less clear was the actual extent of the limitation. Moreover, the issue of

what jurisdiction could be given to the master was merely a small part of the larger ‘s. 96 problem,’ i.e., what decision-

making powers might the provinces assign to non-s. 96 courts or to provincial tribunals that are not courts at all. ...

[T]he accepted general approach was to enquire whether the impugned function was one performed by the master at

the time of Confederation. If so, it might be assigned to a master. If not, then the question was whether the jurisdiction

was of the type usually exercised by a superior court judge or only ‘proper’ to be exercised by such a judge: ... . It is

at this point that the case law becomes somewhat vague and confusing. It seems that the master might be given

jurisdiction over steps designed to ready the case for trial, where one is necessary, and to police and enforce the rules

of practice. However, the master could not be given jurisdiction to determine in a final manner the rights of the parties,

at least where there was a genuine dispute as to those rights”); P. Hogg, Constitutional Law of Canada § 7:15 (5th ed.

looseleaf rel. 2021-1) (“the difficulty lies in the definition of those functions that ought properly to belong to a superior,

district or county court. The courts have attempted to fashion a judicially enforceable rule which would separate ‘s.

96 functions’ from other adjudicatory functions. The attempt has not been successful, and it is difficult to predict with

Page: 42

[157] There are two constitutional rules that arise from the “Judicature” part of the Constitution

Act, 1867.¹³¹

[158] First, the purpose of the “Judicature” part of the Constitution Act, 1867 is to preserve the

role of superior courts – the judges of which are appointed by the federal government¹³²to courts

established by a province – as the guardians of the rule of law. ¹³³Superior courts ensure that there

confidence how the courts will characterize particular adjudicatory functions”) & L. Abrams & K. McGuinness,

Canadian Civil Procedure Law §2.120-121 (2d ed. 2010) (“In several of the provinces of Canada, a varying extent of

jurisdiction is exercised by judicial officers of the court designated as ‘masters’ ... . ... In England, the office of master

may be traced back several centuries, at least to the Court of Chancery. The masters were officers of that court, who

would hear certain points in relation to Chancery cases assigned to them by the Chancellor. The chief of these offices

– that of the Master of the Rolls – subsequently was re-classified into one of the most important of the judicial postings

in England: effectively, the Master of the Rolls is the Chief Justice of the Court of Appeal. The offices of the other

masters were abolished in 1852. In their place chief clerks were appointed, who exercised a jurisdiction in Chambers.

In 1897, the name of the office was changed back to master. In the Courts of Common Law, the office of master was

created in 1837. By the statute creating the office, masters were made officers of the court and were to be appointed

to conduct the civil business thereof. In 1867, it was provided that the judges might empower the masters to transact

all the business transacted by a judge in chambers not affecting the liberty of the subject”). See also Polson Iron Works

v. Munns, 24 D.L.R. 18, 21-22 (Alta. Sup. Ct. Chambers 1915) per Harvey, C.J. (“in England the office of Master is

several centuries old in the Court of Chancery. The Master were officers of the Court, but the chief of them, the Master

of the Rolls subsequently developed into one of the most important of the judges and the offices of the others were

subsequently abolished in 1852 and in their stead were appointed Chief Clerks who exercised a jurisdiction in

Chambers. In 1897 the name was again changed to ‘Master.’ In the common Law Courts the office of Master was

created in 1837. By the statute creating the office they were called officers of the Court, and were to be appointed to

conduct the civil business thereof and in 1867 it was provided that the Judges might empower them to transact all the

business transacted by a Judge in Chambers not affecting the liberty of the subject. In ... [Halsbury] vol. 9, 66 under

the head of ‘Officers’, sec. 5, we find sub.-sec. 3, ‘Masters of the Supreme Court.’ In para. 142 it is stated that their

duties are ‘(1) The control and superintendence of the central office of the Supreme Court (2) judicial work in

Chambers, and (3) issuing directions in points of practice.’ From the foregoing it is apparent that at the time of passing

of the B.N.A. Act judicial work of the character now assigned to the Master in Chambers was being performed in both

the English and Canadian Courts by persons designated by the name ‘Master’ or some other name, who, by the statutes

providing for these offices, were termed ‘officers’ and not ‘Judges’ of the Court”); Ontario v. Victoria Medical

Building Ltd., [1960] S.C.R. 32, 43 (1959) per Judson, J. (“I am content to adopt the judgment of Harvey C.J.A. in

Polson Iron Works v. Munns for its account of the historical origins of the office [of master] and the broad outlines of

the jurisdiction”) & S.B.I. Management Ltd. v. 109014 Holdings Ltd., 1981 ABCA 235, ¶ 2; 128 D.L.R. 3d 89, 90,

leave to appeal granted, [1981] S.C.C.A. No. 372 per Lieberman, J.A. (“The office of Master in Chambers evolved in

England over a period of approximately two centuries until, in 1837 the Superior Court (Officers) Act, 1837 (U.K.),

c. 30, authorized the appointment of officials to be known as ‘Masters of the Court’. That office developed into the

present office of ‘Queen's Bench master’. The office of Master in Chambers was first established in Alberta in 1913

by the Statute Law Amendment Act, 1913 (Alta.), c. 9, which Act amended the Judicature Ordinance, C.O.N.W.T.

1898, c. 21. The Judicature Ordinance had been inherited from the Northwest Territories by Alberta when it became

a province in 1905. The power of the Province to create the office of Master in Chambers emanates from s. 92, para.

14 of the British North America Act, 1867”).

¹³¹30 & 31 Vict., c. 3 (U.K.).

¹³²The federal government also compensates superior court judges. Judges Act, R.S.C. 1985, c. J-1.

¹³³W. Lederman, Continuing Canadian Constitutional Dilemmas 184-85 (1981) (“even though a statute has been

enacted by a provincial legislature that is within provincial powers, nevertheless it may raise issues of interpretation

Page: 43

is a concordance between the tasks a legislature assigns to a lower court or a statutory delegate and

the decisions made by a lower court or a statutory delegate. A lower court or statutory delegate has

no jurisdiction to make a decision not within its assigned responsibilities.

[159] Second, a province cannot assign to an inferior court or an administrative tribunal it has

created powers that a superior court must have to serve as the guardian of the rule of law.¹³⁴

Superior courts have essential or core powers that a province may not abridge.¹³⁵

and application that must be entrusted as an original matter to the provincial superior court, as constituted under section

96 of the B.N.A. Act. In other words, there is a guaranteed core of issues arising under valid provincial statutes that

the province must assign to its provincial superior court as a matter of original jurisdiction. Title to land is one example,

and unlimited jurisdiction to interpret contracts in general is another. ... [Section 96] compels a province to set up the

superior courts on the English model ... and it compels the provinces to give them something to do. Our whole history

points to this as a safeguard for the rule of law in our country”) (emphasis in original). See MacMillan Bloedel Ltd. v.

Simpson, [1995] 4 S.C.R. 725, 754 per Lamer, C.J. (“The core jurisdiction of the provincial superior courts comprises

those powers which are essential to the administration of justice and the maintenance of the rule of law”) & O.

Martineau and Sons Ltd. v. City of Montreal, [1932] A.C. 113, 121 (P.C. 1931) (Que.) per Lord Blanesburgh

(“[Section 96 is] ... the means adopted by the framers of the ... [British North America Act, 1867] to secure the

impartiality and the independence of the Provincial judiciary”).

¹³⁴P. Hogg, Constitutional Law of Canada § 7.15 (5th ed. looseleaf rel. 2021-1) (“the provincial Legislatures may not

confer on a body other than a superior, district or county court judicial functions analogous to those performed by a

superior, district or county court. ... It is ... not surprising that the courts have added a gloss to s. 96 and the associated

constitutional provisions. What they have said is this: if a province invests a tribunal with a jurisdiction of a kind that

ought properly to belong to a superior, district or country court, then that tribunal whatever its official name, is for

constitutional purposes a superior, district or country court and must satisfy the requirements of s. 96 and the associated

provisions of the Constitution Act 1867. This means that such a tribunal will be invalidly constituted, unless its

members (1) are appointed by the federal government in conformity with s. 96, (2) are drawn from the bar of the

province in conformity with ss. 97 and 98, and (3) receive salaries that are fixed and provided by the federal Parliament

in conformity with s. 100”).

¹³⁵Re Residential Tenancies Act, [1981] 1 S.C.R. 714, 748 per Dickson, J. (the Court upheld an opinion of the Ontario

Court of Appeal opining that a provision in The Residential Tenancies Act bestowing on the Residential Tenancy

Commission to order the eviction of tenants was unconstitutional on the ground that this was within the protected

jurisdiction of Ontario’s Superior Court: “The Residential Tenancy Commission is charged with the function of

interpreting contracts and enforcing contractual rights through the exercise of the impugned powers. The Commission

is to be empowered to do what a superior court has always done. It is clearly a Superior Court quoad those powers.

The statutory provisions conferring those powers are therefore invalid”); Reference re Section 6 of the Family

Relations Act, S.B.C. 1978, c. 20 as amended, [1982] 1 S.C.R. 62, 112-13 per Estey, J. (the Court upheld in part an

opinion of the British Columbia Court of appeal that the Family Relations Act constitutionally authorized the

Provincial Court to issue guardianship and custody family law orders: “[the] purpose and role [of section 96] ... is in

no way jeopardized by the increasing recognition of the implementation of valid provincial programs through

provincial administrative and judicial agencies. This will continue to be the case so long as that which is assigned to

the provincial body does not have the effect in substance of conferring on that body a judicial function which ‘broadly

conform[s] to the type of jurisdiction exercised by the superior, district or county courts’”); Québec v. Farrah, [1978]

2 S.C.R. 638 (the Court upheld a decision of the Quebec Court of Appeal declaring unconstitutional a provision in

Quebec’s Transport Act that granted the Quebec Transport Tribunal exclusive and final appellate jurisdiction on any

question of law from any decision of the Quebec Transport Commission, usurping the supervision role of Quebec’s

Superior Court); Crevier v. Québec, [1981] 2 S.C.R. 220, 238-39 (the Court allowed an appeal against a decision of

Page: 44

[160] Orbis Engineering¹³⁶does not take issue with the ability of a master to render a decision

under section 7 of the Arbitration Act.¹³⁷Rather, its contention appears to be that the master’s

decision cannot be final as only section 96 judges can make final determinations of parties’ rights

– which rests on the implicit premise that a decision under section 7 is a final determination of the

rights of the parties.

[161] There is a difficulty with this. It conflates the “finality” of a decision that provides a

resolution which brings the parties’ dispute to an end – e.g., summary judgment or a trial decision

– with that decision being “final” in the sense of not being subject to appeal – e.g., where the

decision is protected by a privative clause or made by a court of last resort.

[162] For its position that a master’s decisions must always be subject to review by a superior

court judge, Orbis Engineering relies on numerous authorities that discuss the validity of specific

grants of authority to a master.¹³⁸

the Quebec Court of Appeal reversing an order of the Superior Court quashing a decision of the Professions Tribunal

that Quebec’s Professional Code authorized it to decide questions of law arising from decisions of discipline

committees and insulating it from judicial or appellate review) & McEvoy v. New Brunswick, [1983] 1 S.C.R. 704,

718-19 (the Court reversed the judgment of New Brunswick’s Court of Appeal opining that Parliament could bestow

exclusive jurisdiction on an inferior court to adjudicate indictable offences: “It has long been the rule that s. 96,

although in terms an appointing power, must be addressed in functional terms lest its application be eroded. What

then, is the relation between the proposed new statutory Court and s. 96? This is the key constitutional issue in the

present case and, as we view the matter, the result is to defeat the new statutory Court because it will effectively be a

s. 96 Court”).

¹³⁶The Elliott companies seem to generally mirror the position of Orbis Engineering. Factum of the Respondents

Elliott Turbomachinery Canada, Inc., and Elliott Company ¶¶ 48-49, 62, 64 & 67-68 (“A decision of a Master is only

an interim decision pending a determination by a judge, unless a party accepts it by electing to not appeal. The

legislature would not have intended to make such decisions ‘unappealable’ without expressing that, as Justice Dilts

correctly stated. There is long-standing expectation and judicial culture in Alberta that no decision of a Master is final

... . .... Justice Dilts was correct in that the purpose of section 7 is to limit appeals to the Court of Appeal – and it is

not to foreclose appeal to a judge of the Court of Queen’s Bench. Statutes are not in conflict, the sound policy that all

decisions of first instance need be reviewable is maintained, and the constitutional entitlement to have a case heard by

a judge is maintained. ... Section 96 of The Constitution Act, 1867 operates as a limiting factor on Masters’ powers:

the power of a federally appointed Justice prevails over that of a provincial appointee such as a Master in chambers.

.... Elliott submits that barring an appeal from a Master to a Queen’s Bench Justice would fetter the jurisdiction of the

Justice, offending section 96 ... . The effect of section 96 is that parties are entitled to a hearing before a federally

appointed Justice”). They add that Agrium has no right to appeal Justice Dilts’ decision to this court. Id. ¶¶ 32 & 110.

¹³⁷Factum of the Respondent Orbis Engineering Field Services Ltd. ¶ 103 (“if this Court determines that s. 7(6) of the

Arbitration Act may bar an appeal from a master, Orbis submits the bar to appeal would only apply to decisions of a

master which clearly fell within the parameters of s. 7”).

¹³⁸E.g. Wright v. Disposal Services Ltd., 80 D.L.R. 3d 671, 674 (Alta. Sup. Ct. Trial Div. 1977) per Laycraft, J. (“It

was urged upon me during argument that as the master had exercised his discretion, I should follow the practice of

appellate courts and not interfere with that discretion even if I disagreed with the result, unless it was plainly based on

wrong principle. In my opinion, however, the rule followed by the Appellate Division in an appeal from a trial judge

involving an exercise of discretion does not apply to an appeal from the decision of a master in chambers. While that

Page: 45

decision is entitled to the greatest respect, the discretionary jurisdiction possessed by a superior court trial judge cannot

be fettered in any way by the previous decision of the master. The superior court judge possesses that jurisdiction by

virtue of his federal appointment under the powers given the federal Crown by the British North ... [America] Act. His

status resulting from that appointment cannot be diminished by the decision of the master appointed by the provincial

Crown”); Menduk v. Gore Mutual Ins. Co., 67 W.W.R. 573, 574 & 577 (Alta. Sup. Ct. 1969) per Sinclair, J. (“Counsel

for the appellant says, in effect, that the appeal should be heard as though the application were being made de novo.

On the other hand, counsel for the respondent urges that the appeal be treated as though it were from a discretionary

order of a judge. .... [I]t is clear that an appeal to a judge of the supreme court from a discretionary decision of a master

is to be treated as a review and a rehearing. The judge is in no way fettered by the previous exercise of the master's

discretion, and is entitled to exercise his own discretion as though the matter came before him for the first time”);

Ontario v. Victoria Medical Building Ltd., [1960] S.C.R. 32, 38 (1959) per Kerwin, C.J. (“Notwithstanding the fact

that mechanics' liens were unknown at the time of Confederation, my view is that Pomeroy [in Equity Jurisprudence

ss. 1268-9] correctly stated the nature of the action given by The Mechanics' Lien Act [as ‘ordinary equitable actions

resulting in a decree for sale and distribution of the proceeds identical in all their features with suits for the foreclosure

of mortgages by judicial action’] and that ... the jurisdiction conferred upon the Master by subs. (1) of s. 31 of The

Mechanics' Lien Act broadly conforms to the type of jurisdiction exercised by the Superior, District or County Courts

at Confederation”), 41-42 per Judson, J. (“This is not a case where the Province has appointed a new judicial officer

to preside over a newly created court or tribunal but one where the Province has increased the jurisdiction of a judicial

officer already appointed by the Province. There is no question here of the use of a device to create a new s. 96 court

with a new s. 96 judge under another name. What is happening is that work is being redistributed within the s. 96 court

itself and new work assigned to a provincially appointed judicial officer. In a sense it is not even an exclusive

assignment when a judge of the court, on motion by one of the parties, has the power of removal under s. 31(2).

Nevertheless, it is my opinion that the judgment under appeal is well founded and that this legislation is in conflict

with the appointing power under s. 96 of the British North America Act, and I reach this conclusion for two reasons

— the nature of the jurisdiction which is conferred upon the Master and the fact that he is given the power of final

adjudication in these matters, subject to the usual right of appeal to the Court of Appeal as from a single judge”);

Polson Iron Works v. Munns, 24 D.L.R. 18, 22 (Alta. Sup. Ct. Chambers 1915) per Harvey, C.J. (“It is perfectly clear,

of course, that the legislature could not provide for the office [of master] either specifically or generally and leave the

executive or the Judges to give him a jurisdiction which would make him practically a Judge, but, in my opinion, that

has not been done here. The Judge's chief duty is to determine the rights of parties in the first instance by trial, and

subsequently on appeal. The practice and procedure is for the purpose of accomplishing these results, advantageously

and expeditiously. The work in Chambers is practically all leading up to trial and appeal. It is to this subsidiary work

that the Master's jurisdiction is confined. The order under consideration is perhaps the nearest approach to determining

the rights of parties by trial that the rules authorize the Master to make. But in reality, he is not trying the rights of the

parties. He is determining that there is no real issue to be tried. It is only when such a situation is found to exist that

the Master is authorized to give a judgment in favor of the plaintiff. When he gives a judgment in favor of the defendant

apparently all he does is to give effect to and enforce some rule of practice e.g. for failure to prosecute the action as

required by the rules. The Master has no jurisdiction in trials or in appeals and all of his acts are subject to review by

a judge. His office is essentially that of an officer preparing litigation for its legitimate purpose, viz. a trial of the rights

of the parties which is exclusively reserved for the judges to whom it essentially belongs. His duties, therefore, while

largely judicial in their character, do not constitute him a judge since from them are reserved the essential duties of a

judge”); Colonial Investment & Loan Co. v. Grady, 24 D.L.R. 176, 176, 178 & 179 (Alta. Sup. Ct. App. Div. 1915)

per Stuart, J. (“the Legislative Assembly of Alberta provided a special method of procedure for the enforcement of

rights under mortgages, encumbrances and agreements of sale. Section 3 of that Act reads as follows: – ‘All

proceedings to secure or enforce any right, remedy or obligation under a mortgage, encumbrance or agreement of sale,

or in respect of the lands, moneys, covenants, conditions, stipulations or agreements described or contained therein,

shall be brought before a Master in Chambers in the Supreme Court of Alberta under the provisions of this Act and

as nearly as may be in accordance with the practice and procedure of the said Court.’ .... [T]he Master was ‘to have

jurisdiction to hear all evidence, adjourn all hearings, grant all orders, pronounce all judgments, and to do all other

Page: 46

[163] It is not clear how these cases support Orbis Engineering’s position. Given its concession

that a master may render a decision under section 7, the only issue arising from the argument as

framed is whether the absence of a right to appeal to a Court of Queen’s Bench judge renders

Alberta’s assignment of jurisdiction to the master ultra vires the Alberta legislature.

[164] It would seem that the argument comes down to whether a provincial legislature can assign

to a master decision-making authority that can properly rest in that office but that is insulated from

appeal to a section 96 judge.

[165] The argument assumes that a decision of a master in chambers is not subject to appeal or

judicial review.

[166] As I will explain, this is not the case.

[167] A determination that section 7(6) of the Arbitration Act¹³⁹prohibits appeals from orders of

a master in chambers under section 7(1) of the Arbitration Act to a judge of the Court of Queen’s

Bench does not mean that a decision of a master in chambers is immune from appellate or judicial

review.

[168] First, an order of a master in chambers under section 7(1) of the Arbitration Act is, for the

purpose of section 40(1) of the Supreme Court Act,¹⁴⁰a “final or other judgment of the Federal

Court of Appeal or of the highest court of final resort in a province ... in which judgment can be

acts or things that may be necessary in finally disposing of such proceedings,’ and this subject only to certain

conditions of procedure and certain enactments by way of substantive law which in no way limited his final and

complete jurisdiction. It is obvious that it was left entirely in the discretion of the Master to decide whether or not he

should exercise powers which were undoubtedly as full and complete as those held by a Judge of the Supreme Court.

He could, indeed, if he thought best, direct an action to be brought or an issue to be tried, but it was still open to him

to hear oral evidence as at a trial and to give as full and as final a judgment as a Judge of the Court could give, no

matter what issue of fact, e.g., fraud or other ground of defence, might have been raised. He was to do all this ‘in the

Supreme Court.’ It seems to me that it is impossible to avoid the conclusion that by such legislation the Master was

constituted in effect a Judge of the Supreme Court with a jurisdiction limited indeed to its extent but not in its content,

that is, limited to a certain very important branch of litigation, but practically unlimited within that sphere, and subject

only with respect to his final judgment to an appeal to the Appellate Division in the same way as a final judgment of

any ordinary Judge of the Supreme Court. For this reason I think the legislation was ultra vires of a Provincial

Legislature, inasmuch as it was inconsistent with the appointing power expressly given to the Dominion in the B.N.A.

Act”) (emphasis in original) & S.B.I. Management Ltd. v. 109014 Holdings Ltd., 1981 ABCA 235, ¶¶ 41, 42 & 60;

128 D.L.R. 3d. 89, 100 & 105 per Lieberman, J.A., leave to appeal granted, [1981] S.C.C.A. No. 372 (“That a Master,

in the proper case, can grant summary judgment is beyond dispute. ... In the present case, the Master held that there

was no triable issue. He was on the facts entitled and, I might say, compelled to so find. The question becomes whether

granting an order for possession in these circumstances can be regarded as analogous to granting summary judgment.

In my view, it can. .... Applying the threefold test to the situation faced by the Master in this case, I have no hesitation

in coming to the conclusion that he did have jurisdiction to grant the order for possession”).

¹³⁹R.S.A. 2000, c. A-43.

¹⁴⁰R.S.C. 1985, c. S-26.

Page: 47

had in the particular case” and, with leave of the Supreme Court of Canada, may be appealed to

the Supreme Court of Canada.¹⁴¹The Supreme Court of Canada is a superior court.¹⁴²It follows

that an order of a master in chambers under section 7(1) of the Arbitration Act is not immune from

appellate review. This, in my opinion, is a complete answer to Orbis Engineering’s constitutional

argument.

¹⁴¹Uber Technologies Inc. v. Heller, 2020 SCC 16, n. 5 per Abella & Rowe, JJ. (“if the motion judge had issued a

stay under the ... [Arbitration Act], no appeal to the Court of Appeal would have been available (... [Arbitration Act]

s. 7(6)). A direct appeal to this Court with leave would still have been permissible”); Argentina v. Mellino, [1987] 1

S.C.R. 536, 545 per La Forest, J. (“This appeal is brought under s. 41 [now section 40(1)] of the Supreme Court Act

... which in broad terms empowers this Court to grant leave to appeal from any final or other judgment of the highest

court of final resort in a province, or a judge thereof, in which judgment can be had in a particular case. The Act again

underscores the breadth of the provision in s. 2(1) by defining ‘the court appealed from’ as ‘the court from which the

appeal is brought directly to the Supreme Court, whether such court is one of original jurisdiction or a court of appeal’,

and ‘final judgment’ as ‘any judgment, rule, order or decision that determines in whole or in part any substantive right

of any of the parties in controversy in any judicial proceeding’. On a plain reading of these provisions ... it [is] obvious

that s. 41 applied to the present case. The decision of Waite J., from which this appeal is taken, finally dismissed the

application for extradition”) & Le Syndicat des employés de bureau de l’Hydro-Québec v. Québec, [1973] S.C.R. 790,

791 (“The Court, being of the opinion that the judgment of the Honourable Jean Saint-Germain of the Superior Court,

granting ... the petition presented by the Attorney General of the Province of Quebec under s. 99 of the Labour Code

of Quebec, is, in law, a judgment from which an appeal lies to the Court of Appeal of the Province of Quebec, it

follows that no appeal lies from that judgment to this Court under s. 41 [now section 40(1)] of the Supreme Court

Act”).

¹⁴²Lederman, “The Independence of the Judiciary” 34 Can. B. Rev. 769, 1175 (1956) (“Section 101 of the B.N.A.

Act contemplates the establishment of federal superior courts. This arises from the use of the word ‘court’ in the

section, and indeed the ‘General Court of Appeal for Canada’ would necessarily and preeminently be a superior court

on the English model. To consider that section 101 could mean anything else would be so incongruous as to be

absurd”). See Addy v. Canada, 22 D.L.R. 4th 52, 60 (Fed. Ct. Tr. Div. 1985) per Grant, J. (“the Supreme Court of

Canada and the Federal Court of Canada are superior courts within the meaning of s. 99(2) of the Constitution Act,

1867, and that the judges of both ... courts are ... superior court judges”). A court is presumably either superior or

inferior. There is no third option. But the terms may take on different meanings depending on context. See P. Hogg,

Constitutional Law of Canada § 7:14 (5th ed. looseleaf rel. 2021-1) (“Do the provisions of ss. 96 to 100 of the

Constitution Act, 1867, dealing with appointment, payment and tenure of higher court judges, apply to the Supreme

Court of Canada, the Federal Court of Appeal, the Federal Court, the Tax Court of Canada and the higher territorial

courts? There is no doubt that those courts are ‘superior courts’). See also Interpretation Act, R.S.C. 1985, c. I-21, s.

35(1) (“In every enactment … ‘superior court’ means (a) in the Province of Newfoundland and Labrador, the Supreme

Court, (a.1) in the Province of Ontario, the Court of Appeal for Ontario and the Superior Court of Justice, (b) in the

Province of Quebec, the Court of Appeal and the Superior Court in and for the Province, (c) in the Province of New

Brunswick, Manitoba, Saskatchewan or Alberta, the Court of Appeal for the Province and the Court of Queen’s Bench

for the Province, (d) in the Provinces of Nova Scotia, British Columbia and Prince Edward Island, the Court of Appeal

and the Supreme Court of the Province, and (e) the Supreme Court of Yukon, the Supreme Court of the Northwest

Territories and the Nunavut Court of Justice, and includes the Supreme Court of Canada, the Federal Court of Appeal,

the Federal Court and the Tax Court of Canada”) (emphasis added).

Page: 48

[169] Second, given that a master in chambers is not a section 96 superior court judge, it is

arguable that a party may apply to a judge of the Court of Queen’s Bench for judicial review¹⁴³of

a master in chambers’ decision under section 7 of the Arbitration Act.¹⁴⁴While it is true that the

availability of an appeal to the Supreme Court of Canada under section 40(1) of the Supreme Court

Act would cause a reviewing court to consider whether this is a sufficient reason to decline to hear

a judicial review application,¹⁴⁵it is not obvious to me what the outcome of that issue would be.

[170] If the judicial review court concluded that section 40(1) of the Supreme Court Act¹⁴⁶

provided an adequate alternative remedy, it may decline to grant any relief. If the court came to

the opposite conclusion, it may decide to grant a judicial review remedy.

[171] Section 7(6) of the Arbitration Act¹⁴⁷does not deprive section 40(1) of the Supreme Court

Act of its force.

[172] First, Alberta does not have the constitutional authority to regulate the jurisdiction of the

Supreme Court.¹⁴⁸Only Parliament has the authority to do so.¹⁴⁹As a result, the presumption of

¹⁴³D. Jones, Q.C. & A. de Villars, Q.C., Principles of Administrative Law 7 (7th ed. 2020) (“Superior courts have the

inherent power to review the legality of administrative actions performed by statutory delegates; in other words, they

have the inherent power to judicially review the actions or decisions of statutory delegates. This inherent power of

judicial review is the natural consequence of the courts’ role to interpret the meaning of statutes, including determining

the ambit of statutes which grant powers to statutory delegates. Courts decide whether administrative actions are ultra

vires. Superior courts have historically used the prerogative remedies of certiorari, mandamus, prohibition, quo

warranto and habeas corpus to exercise supervisory jurisdiction over inferior courts and statutory delegates”)

(emphasis added).

¹⁴⁴R.S.A. 2000, c. A-43.

¹⁴⁵Harelkin v. University of Regina, [1979] 2 S.C.R. 561, 592 per Beetz, J. (“I have reached the conclusion that

appellant's right of appeal to the senate committee provided him with an adequate alternative remedy [to judicial

review]. In addition, this remedy was in my opinion a more convenient remedy for appellant as well as for the

university in terms of costs and expeditiousness”) & Chad Investments Ltd. v. Longson, Tammets & Denton Real

Estate Ltd., 20 D.L.R. 3d 627, 631 (Alta. Sup. Ct. App. Div. 1971) per McDermid, J.A. (“It is a wrongful exercise of

judicial discretion, unless there are special circumstances, to grant an order of certiorari where the party aggrieved has

been given an effective right of appeal which the party has not taken advantage of and which has expired”). See D.

Jones, Q.C. & A. de Villars, Q.C., Principles of Administrative Law 602 (7th ed. 2020) (“the existence of a statutory

right of appeal may result in a court exercising its discretion to refuse to grant judicial review of a statutory delegate’s

decision, and, as a result, deny the remedies available on judicial review”).

¹⁴⁶R.S.C. 1985, c. S-26.

¹⁴⁷R.S.A. 2000, c. A-43.

¹⁴⁸L. Watt, G. Ragan, G. Régimbald, J. Beedell & M. Estabrooks, Supreme Court of Canada Practice (2022) 1.1

(“Where a provincial statute has removed the right of appeal to a provincial court of appeal, a direct appeal will lie to

the [Supreme] Court with leave. In other words, a province cannot constitutionally deprive litigants of an appeal to

the Court by legislating that there shall be no further appeal from a judgment of a provincial appellate court”).

¹⁴⁹Crown Grain Co. v. Day, [1908] A.C. 504, 507 (P.C.) (Can.) per Lord Robertson (“It is to be observed that the

subject in conflict [the jurisdiction of the Supreme Court of Canada] belongs primarily to the subject-matter committed

Page: 49

validity means that section 7(6) of the Arbitration Act only limits the jurisdiction of judges of the

Court of Queen’s Bench and the Court of Appeal – courts established by provincial legislation¹⁵⁰

– to hear appeals against orders of masters in chambers and judges of the Court of Queen’s Bench

respectively.

[173] Second, if Alberta does have the constitutional authority to preclude appeals from a master

in chambers or a judge of the Court of Queen’s Bench to the Supreme Court of Canada, which I

am satisfied it does not, the doctrine of dominion paramountcy¹⁵¹resolves the conflict between

section 7(6) of the Arbitration Act and section 40(1) of the Supreme Court Act in favor of the

Supreme Court Act. As Professor Lederman opines, if the dominion paramountcy doctrine is

engaged, “provincial legislation is suspended or inoperative”.¹⁵²

to the Dominion Parliament, namely, the establishment of the Court of Appeal for Canada. But, further, let it be

assumed that the subject-matter is open to both legislative bodies [Manitoba and Parliament]; if the powers thus

overlap, the enactment of the Dominion Parliament must prevail”) & Re Sutherland, 134 D.L.R. 3d 177, 181 (Man.

C.A. chambers 1982) per Huband, J.A. (“The Payment of Wages Act purports to make the decision of the County

Court Judge ‘final’. But the Supreme Court Act recognizes the possibility of an appeal to the Supreme Court of Canada

from any ‘final or other judgment of the highest court of final resort in a province’. For the purposes of the Payment

of Wages Act, there can be no doubt but that the provincial legislature has endeavoured to constitute the County Court

as the Court of final resort in a Province. But in doing so, the provincial legislature has not attempted to foreclose an

appeal to the Supreme Court of Canada”). See P. Hogg, Constitutional Law of Canada § 8:5 (5th ed. looseleaf rel.

2021-1) (“If a province would prefer that litigation in a field within provincial jurisdiction be finally disposed of at

the level of the provincial court of appeal, it cannot constitutionally give effect to that preference”).

¹⁵⁰Court of Queen’s Bench Act, R.S.A. 2000, c. C-31 & Court of Appeal Act, R.S.A. 2000, c. C-30.

¹⁵¹Lederman, “Classification of Laws and the British North America Act” in Legal Essays in Honour of Arthur Moxon

202 (J. Corry, F. Cronkite & E. Whitmore eds. 1953) reprinted in W. Lederman, Continuing Canadian Constitutional

Dilemmas 244-45 (1981) (“it is a principle of our constitution that in the event of a collision between a federal law

and a provincial law each valid under the double-aspect theory, the federal features of the former law are considered

in the last analysis more important than the provincial features of the latter”) & Canadian Western Bank v. Alberta,

2007 SCC 22, ¶ 32; [2007] 2 S.C.R. 3, 30 per Binnie & LeBel, JJ. (“the doctrine of federal paramountcy ... recognizes

that where laws of the federal and provincial levels come into conflict, there must be a rule to resolve the impasse.

Under our system, the federal law prevails”).

¹⁵²Lederman, “Some Forms and Limitations of Co-Operative Federalism”, 45 Can. B. Rev. 409, 417 (1967) (“In the

event of conflict, the judicial doctrine of dominion paramountcy is to the effect that federal legislation prevails and

provincial legislation is suspended or inoperative”).

Page: 50

VII. Conclusion

[174] I would allow the appeal – the order under appeal is of no effect with the result that the

order of Master Prowse remains in force.

[175] I acknowledge the very high quality of counsel’s written and oral arguments.

Appeal heard on June 15, 2022

Memorandum filed at Calgary, Alberta

this 8th day of August, 2022

Wakeling J.A.

Page: 51

Appearances:

D.J. McDonald, Q.C./M. Deyholos

for the Appellant

R.B. Drewry, Q.C./A.F. Jeffs

for the Respondent, Orbis Engineering Field Services Ltd.

C.J. Popowich/K.L. Reiffenstein

for the Respondents, Elliott Turbomachinery Canada Inc. and Elliott Company

Page: 52

_______________________________________________________

Corrigendum of the Memorandum of Judgment

of the Honourable Justice Crighton and the Honourable Justice Ho

Dissenting Memorandum of Judgment of the Honourable Justice Wakeling

_______________________________________________________

Page 51 - Counsel has been changed from L.K. Feehan to A.F. Jeffs for the Respondent, Orbis

Engineering Field Services Ltd.