The appellate court rejected arguments that the time limits set out in the Arbitration Act apply
The British Columbia Court of Appeal confirmed in a decision this week that its own rules, rather than the provincial Arbitration Act, determine how long applicants have to file a cross appeal over an arbitration award.
In clarifying the time limit for filing a cross appeal – which is not explicitly addressed in the Arbitration Act – the appellate court declined to follow a 2024 decision on appeal time limits for arbitration awards “to the extent [that it] suggests otherwise.”
The dispute concerns an arbitration award from May 28. Under the Arbitration Act, parties must file an application for leave to appeal an arbitration award within 30 days of the award date.
The appellants filed an appeal on June 27, meeting the Arbitration Act deadline. In response, the opposing parties decided to file a notice of application for leave to cross appeal on July 14, relying on provisions of the Court of Appeal Act and Court of Appeal Rules that held that cross appeals must be initiated no more than 15 days after a notice of appeal has been served.
The appellants argued that the Arbitration Act time limits applied, and that the opposing parties did not file their cross appeal within the 30-day window.
The BCCA disagreed. In its decision, the appellate court considered its 2024 ruling in Desert Properties Inc. v. G&T Martini Holdings Ltd., which looked at the time limit for a cross appeal over an arbitration award. In that 2024 ruling, the appellate court determined that the time limit should be measured from the date the arbitration award was amended, rather than the original award date.
While the BCCA said it agreed in this week’s decision with Desert Properties’ assessment that the Court of Appeal Act and Court of Appeal Rules apply once a notice of appeal is initiated, the appellate court said it did not understand Desert Properties’ conclusion that the Court of Appeal Act was powerless to either extend or shorten the time limit for arbitration award appeals or cross appeals.
The appellate court said this week that the Court of Appeal Act “neither extends nor abridges the time limit for appeals,” but simply gives parties 15 days to file a cross appeal in response to an arbitration award appeal.
The BCCA said other Court of Appeal Act and Court of Appeal Rules provisions also apply to arbitration appeals, including “the power of the court to allow notices of appeal to be amended, or to order that parties who have been left out of the appeal be added.” The appellate court stated that such powers “do not interfere with or contravene the express provisions of the Arbitration Act.
“While I regret that my conclusion in this respect differs from what was said by my esteemed former colleague in Desert Properties, I do note that nothing in this judgment would have affected the result in that case,” the appellate court said. “I would also observe that the issue was merely a sidelight in Desert Properties.
“Understandably, the judge addressed it in only a single paragraph, and in an offhand way.”
The court added that “practical considerations strongly favour an interpretation of the legislative matrix that allows cross appeals to be brought (expeditiously) after an appeal has been filed.” Parties “should not be encouraged to file free‑standing appeals out of fear that they will be precluded from cross appealing if they wait until a proceeding has started.
“By the same token, appellants should not be encouraged to wait until the last possible moment to file their appeals, with the goal of precluding respondents from seeking additional or alternative changes to the arbitral award,” the court said.
Counsel for the parties did not respond to requests for comment.
