Chief Justice Wittmann eloquently explains the appeal (s. 44) and set aside (s. 45) provisions of the Alberta Arbitration Act in Capital Power Corporation v. Lehigh Hanson Materials Limited, 2013 ABQB 413.
Under s.44(2), before granting leave to appeal, the Court must be satisfied:
The proper approach “is to determine whether there is an extricable question of law that my be subject to appeal.” (Para 27)
S 44(2) does not incorporate a public interest requirement. It does require a “very high standard when considering whether the importance to the parties of the matters at stake…justifies an appeal.” (Para 35)
“It is only where the parties have identified and referred to the arbitrator a discrete legal issue that s.44(3) will operate to bar an appeal in respect of that issue.” (Para 44) The Chief Justice notes that s 44(3) is unique to Alberta.
“I am not convinced that the Court retains a discretion to deny leave for reasons not encompassed by s.44 of the Act.” (Para 51)
Quoting from J. Brian Casey, Arbitration Law of Canada: Practice and Procedure, 2nd ed. at p. 414:
The setting aside of an award is something different from an appeal. The provisions for setting aside an award can be likened to a judicial review of procedural matters, not the legal correctness of the decision. Rather than attacking the tribunal’s judgment, an application to set aside an award is a challenge to the fundamental validity of the arbitral process, the result of which, if successful, takes away the fundamental underpinning of the award. (Para 52)