Part 21 published on 01/02/08
Court refuses to entertain judicial review of Arbitration decision
The parties to a construction arbitration had agreed that the arbitrator’s decision would be “final and binding and that there shall be no appeal either on matters of fact or law”.
The Arbitration Act contains statutory rights of appeal, but Section 3 of the Act permits the parties to an arbitration agreement to vary or exclude any provision of the Act by express or implied agreement. [So, for example, the parties can agree to forego the rights of appeal that can be found in the Arbitration Act.] However, the parties cannot contract out of certain provisions of the Act, including Section 46, which contains limited provisions for setting aside an arbitration award, even in the absence of an appeal right. The Court said: “The threshold issue before this Court today is whether the Court can, or should, entertain an application for judicial review given the alternative procedure available to the applicant under Section 46.” The Court’s answer was “No.” The Court said, “In the circumstances before us, Section 46 of the Arbitration Act provides an adequate alternative remedy.” The Court then granted an extension of the time for bringing an application under Section 46 of the Arbitration Act, assuming the condominium corporation would wish to do so.