Executive Summary: Key Legal and Evidentiary Issues

• Mr. Carrigan's application for a stay of all arbitration proceedings, directives, and enforcement steps pending his appeal was denied on multiple grounds under Rule 14.48 of the Alberta Rules of Court.

• The order under appeal — which set aside Mr. Carrigan's applications — did not require or authorize any person to do anything, leaving nothing capable of being stayed.

• Rule 14.48 does not grant the Court of Appeal jurisdiction to stay enforcement of orders that are not under appeal, and the Court questioned whether it has jurisdiction to stay proceedings of a non-judicial body, ultimately assuming jurisdiction without deciding and declining to exercise it.

• Alleged harms were monetary in nature, which the Court noted will rarely give rise to irreparable harm in the context of the test for a stay.

• Ms. Bosse's cross-application for security for costs was granted, given Mr. Carrigan's acknowledged inability to pay outstanding costs totalling $16,072 and his history of non-payment.

• Security for costs was set at $3,375 under column 1 of Schedule C, with the appeal deemed abandoned if not posted by March 31, 2026.

The co-ownership dispute and the arbitration agreement

Brad Carrigan and Andrea Bosse are co-owners of an acreage property. Ms. Bosse wants to sell the property. Through an arbitration agreement, the co-owners entered arbitration before Patricia Withers in September of 2023 to determine issues related to the listing and sale of the property.

Mr. Carrigan's challenges to the arbitration

Mr. Carrigan is not satisfied with the arbitration proceedings and has filed multiple applications in the Court of King's Bench challenging Ms. Withers' directives and awards and her jurisdiction. In January 2024, Justice Johnston ordered that Mr. Carrigan required leave of the court or written consent of the parties prior to filing any further applications relating to the arbitration. Since the time of Justice Johnston's order, the Court of King's Bench issued various orders relating to the arbitration: on May 16, 2024, Justice Kuntz ordered the awards and directives of the arbitrator relating to the immediate sale of the property were confirmed and fully enforceable; on July 11, 2024, Justice Jeffrey declared that the arbitrator retained jurisdiction to arbitrate matters between the parties relating to the listing and sale of the property pursuant to the arbitration agreement; and on April 23, 2025, Justice Malik ordered further awards and directives of the arbitrator were confirmed and fully enforceable. None of these orders is under appeal. To date, Mr. Carrigan owes Ms. Bosse $16,072 in unpaid costs orders resulting from applications in the Court of King's Bench.

The originating application filed without leave

In October 2025, Mr. Carrigan filed an originating application to challenge Ms. Withers' jurisdiction on the basis that there were irregularities in the formation of the arbitration agreement. He named both Ms. Bosse and Ms. Withers as respondents. He did not apply for leave prior to filing the application, as required by Justice Johnston's order. Ms. Withers applied to set aside the originating application, arguing in part that it had been filed without first obtaining leave. Mr. Carrigan acknowledged he had not sought leave and cross-applied for retroactive leave to file the originating application. Justice Funk heard the applications and found Mr. Carrigan had not explained his failure to seek leave before filing and had not established that leave should be granted. She dismissed the application for leave and set aside the originating application with costs to the respondents. It is from this order that Mr. Carrigan appeals.

The stay application and jurisdictional limitations

Before the Court of Appeal, Mr. Carrigan sought an order staying all arbitration proceedings, directives, and enforcement steps pending determination of the appeal. Justice Antonio found that the order under appeal set aside the applicant's applications, awarded costs, and made directions regarding the form and service of the order. In setting aside the applications, the order does not require or authorize any person to do anything, meaning there is nothing to stay. The directions regarding form and service had already been carried out, so no action remained to be stayed. The Court further noted that Rule 14.48 provides jurisdiction to stay enforcement of a decision pending appeal and does not extend to other orders. If an application to stay proceedings or enforcement seeks to contradict an existing order that is not under appeal, it is a collateral attack on that order. Regarding whether the Court of Appeal has jurisdiction to stay arbitral proceedings or awards, Justice Antonio observed that Rule 14.48 contemplates a stay of a decision made by a judge, not a decision of a non-judicial body, and that there is no principled basis to conclude the rule grants the Court the power to stay proceedings of a non-judicial body when it is not empowered to stay enforcement of its decisions. However, assuming without deciding that she had jurisdiction to stay the ongoing arbitration proceedings, Justice Antonio declined to exercise it. Mr. Carrigan's argument that section 30 of the Arbitration Act, RSA 2000, c A-43, provides the courts with broad supervisory authority over arbitrators was rejected; the Court noted that section 30 deals with an arbitrator's powers to compel production of evidence and does not bestow the kind of supervisory power Mr. Carrigan envisioned. Applying the test for a stay, the Court found that the harms Mr. Carrigan alleges he will suffer absent a stay are monetary in nature, and that such harms will rarely give rise to irreparable harm. Given the history of these proceedings, the balance of convenience favoured the denial of a stay.

The security for costs application

Ms. Bosse cross-applied for an order requiring Mr. Carrigan to post security for costs in relation to his appeal. The Court considered the factors under Rule 4.22, including whether Ms. Bosse would be able to enforce a costs order against Mr. Carrigan's assets, Mr. Carrigan's ability to pay, the merits of the appeal, and whether the order would cause undue prejudice. Ms. Bosse argued that Mr. Carrigan has multiple financial obligations in arrears and that his interest in the co-owned property is his only real asset. Mr. Carrigan filed no materials in response to the application; however, in his oral submissions he acknowledged he owes costs to Ms. Bosse and does not have sufficient liquid funds to pay these outstanding amounts or to post security for costs. Regarding the merits of the appeal, the Court noted that Mr. Carrigan's submissions focus on issues which were not decided by Justice Funk and that the merits of the appeal must be assessed with regard to the standard of review, which will be deferential. On undue prejudice, the Court recognized that while courts are generally reluctant to prevent parties from advancing their cases, awarding costs to the successful party in civil litigation is an important control on the quantity and intensity of litigation, which becomes ineffective where one party is "judgment proof" because they refuse or are unable to pay these awards. Mr. Carrigan has been unsuccessful in advancing his position in the Court of King's Bench, has repeatedly been ordered to pay costs to Ms. Bosse, and has more often than not failed to do so.

The ruling and outcome

Justice Antonio denied Mr. Carrigan's application for a stay of enforcement and of proceedings in its entirety and granted Ms. Bosse's application for security for costs. Mr. Carrigan was ordered to post security in the amount of $3,375 in relation to Ms. Bosse's appeal costs by March 31, 2026, calculated under column 1 of Schedule C of the Alberta Rules of Court. All applications and other proceedings in the appeal are stayed until the ordered security is paid into the Court, and if Mr. Carrigan fails to post security as ordered, his appeal will be deemed abandoned pursuant to Rule 14.67(2). The Court declined to order any increase in the tariff amount for inflation. Additionally, Ms. Bosse was successful on both applications and Mr. Carrigan was ordered to pay her costs of the applications in the amount of $2,000 forthwith. The Court declined to award costs of the application to Ms. Withers.