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Our Vancouver Family Arbitration Appeal Lawyers are pleased to see the first BC Court of Appeal decision on what the test to be applied is in Vancouver Family Arbitration Appeal cases. In the first Vancouver family arbitration appeal case of  McMillan v. McMillan 2016 BCCA 441 the appeal court confirmed a very limited approach to allowing appeals in family law arbitration decisions. Our top rated* family law lawyers and family arbitrators can arbitrate your dispute both as the family law arbitrator or at the arbitration itself. Contact us toll free at 1-877-602-9900. We have offices across BC and in Calgary Alberta.

Vancouver Family Arbitration Appeal Lawyers – Decisions Won’t Be Altered Unless Unreasonable

Family law arbitration is a fast tracked process where parties agree to hire a senior lawyer who is trained as an arbitrator to decide a family law case. The option allows for more privacy and can cost less. Our Vancouver Family Arbitration Appeal Lawyers can explain the process to you so you can decide if it is right for you.

Our Vancouver Family Arbitration Appeal Lawyers know that the family arbitrator acts as a private judge for the parties to make final decisions on their family case. The parties have a limited right of appeal but our highest court the Supreme Court of Canada ( SCC ) has recently said the appeal right from arbitration is to be narrowly construed. If you have an alternative dispute resolution question start here.

The official Vancouver Family Arbitration Appeal summary states:

The court below dismissed the appeal from arbitrator’s decision in a family law appeal. Appellant argued in this court that the respondent’s application to a chambers judge for certain orders, prior to the arbitration, had constituted a breach of the arbitration agreement, and that the court below “ignored” that fact. Appellant also contended that the arbitrator had erred in failing to award damages against the respondent for this “breach”. The appellant had sought and obtained a stay of the respondent’s application.

Held: Appeal dismissed. The arbitrator had not erred in “ignoring” the court application; he found that the appellant, not the respondent, had breached the agreement. As the court below had ruled, no reviewable error was shown in the arbitrator’s decision.

Vancouver Family Arbitration Appeal Lawyers 604-602-9000

Lorne N. MacLean, QC, founder of our MacLean Law Vancouver Family Arbitration Appeal Lawyers highlights the key paragraphs in this rather complex set of reasons:

[1]             This is the first appeal to reach this court involving the decision of an arbitrator to which the Family Law Act, S.B.C. 2011, c. 25 (“FLA”) and concomitant amendments to the Arbitration Act, S.B.C. 1996, c. 55 apply. It is also the first appeal in which the applicability of the Supreme Court of Canada’s decision in Sattva Capital Corp. v. Creston Moly Corp. 2014 SCC 53 concerning contractual interpretation has been raised in the family law arbitration context. Perhaps predictably, the parties disagree as to the nature of the issues raised by the appeal – fact, law or mixed fact and law? – and have called into aid the seminal case on standards of review applied to the judicial review of administrative tribunals, Dunsmuir v. New Brunswick 2008 SCC 9; and the seminal case on appellate review of judicial decisions, Housen v. Nikolaisen 2002 SCC 33.

[16]         Accordingly, the arbitrator awarded the wife the sum of $383,437.08, representing damages for her payment of one-half of the mortgage payments over 39 months, together with interest under the Court Order Interest Act. All subsequent mortgage payments from November 2014 were ordered to be paid by the husband. The award was stated to be “final as to all matters except costs.”

[19]         At paras. 19–45 of his reasons, the chambers judge considered the standard of review to be applied on a review of an arbitration award in a family law dispute. He quoted extensively from Boxer Capital Corporation v. JEL Investments Ltd. 2015 BCCA 24, where this court had discussed Sattva and had observed:

Sattva held that questions of contractual interpretation should almost always be regarded as questions of mixed fact and law (at para. 50). (Historically they were seen as questions of law.) This means that, after Sattva, leave will rarely be granted to appeal an arbitral award on a question of contractual interpretation. (If Sattva had been decided earlier, leave arguably would not have been granted to appeal the parties’ initial arbitral award and this lengthy saga would have been avoided.)

When leave is granted to appeal an arbitral award, the reviewing court is bound by the arbitrator’s factual findings (Sattva at para. 104). The normal “palpable and overriding error” standard does not apply; the arbitrator’s factual findings simply cannot be disturbed. The standard of review on the question of law under appeal will “almost always” be reasonableness (at para. 75). Here the Dunsmuir framework does apply (at para. 106), so the standard would be correctness if, for example, the question was both centrally important to the legal system as a whole and outside the arbitrator’s area of expertise (see Dunsmuir at para. 60; Toronto (City) v. C.U.P.E., 2003 SCC 63 at para. 6).

Finally, when leave is granted to appeal an arbitral award, it is important for the reviewing court to strictly honour the boundaries of the question or questions of law on which leave was granted. The appeal is not one at large. The reviewing court must constantly remind itself of the narrow question or questions before it, lest it improperly expand its search for error into areas that go beyond those questions, let alone areas that go beyond the scope of the dispute referred by the parties to the arbitrator. … [At paras. 9–11.]

[22]         At paras. 49–53, the chambers judge instructed himself on the content of the “reasonableness” standard, as discussed in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC 62, Dunsmuir, and Sattva. He then formulated what he regarded as the correct approach:

As a result in considering this appeal it is not open to the court to substitute its own findings of fact for those of the arbitrator. In considering any questions of mixed fact and law and whether the arbitrator applied a particular legal standard or test it is to the facts as he found them. In doing so the court must consider whether the arbitrator’s conclusions fall within an acceptable range with due deference to the arbitrator’s reasoning. [At para. 54.]

[40]         Again, in my view, Kelleher J. did not find that a breach of the arbitration agreement occurred in October 2013; nor was the arbitrator himself prepared to ‘second guess’ the wife’s reasoning in applying for relief in the Supreme Court. He found that it was instead the husband who had breached the MOS “by refusing to do all things necessary to carry out the provisions of the MOS and by failing to use his best efforts to calculate the FEP” and by failing to act in good faith to “achieve the equalization objectives of the MOS.” (At para. 215.) It has not been shown the arbitrator’s findings in this regard were unreasonable; nor did the chambers judge find that they were.

Vancouver Family Arbitration Appeal Lawyers explain alternative dispute resolution processes are entitled to great respect so parties who go to family arbitration can expect unless the decision is unreasonable it will not be altered by an appeal to the Court system.

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