The Supreme Court of Canada restored an arbitration award after the parties made two trips to the BC Supreme Court and the BC Court of Appeal in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 in a $4.1M finder’s fee dispute.
Appeals from commercial arbitration decisions are limited to questions of law and, absent party consent, leave to appeal is required. Leave may be granted where the result is important to the parties and the determination of the point of law may prevent a miscarriage of justice. (See: Alberta Arbitration Act s. 44(2), s. 31(2) in BC.) Even where these criteria are met, a court has residual discretion to deny leave after considering conduct of the parties, existence of alternative remedies, undue delay and the urgent need for a final answer.
The SCC makes clear that ascertaining the objective intentions of the parties expressed in a contract is inherently fact specific. Circumstances in which a question of law can be extricated from the interpretation process will be rare. The historical rationale for treating the exercise as a question of law–frequent civil jury trials and widespread illiteracy–no longer applies.
Accordingly, courts will be less likely to grant leave to appeal from an arbitrator’s finding of what a contract means.
This was no doubt a costly process for the parties. The BC Supreme Court denied Creston leave to appeal the award. The BC Court of Appeal granted leave. The BSSC upheld the arbitrator’s award, then Creston won at the BCCA. The SCC restored the arbitrator’s award.
The award is dated December 23, 2008. It has taken the parties almost six more years to get finality. However, the result may serve to reduce appeal costs for future arbitrating parties where contract interpretation is an issue.