Case: Sejnowski v. Polish Hall, 2026 ABCA 13 (CanLII)
Keywords: Polish Canadian Society; permission to appeal; Arbitration Act, RSA 2000, c-4
Synopsis:
The Applicant commences an action against the Polish Hall and Polish Canadian Society, alleging shortfalls related to governance and financial reporting. The action is stayed pursuant to the Arbitration Act, RSA 2000, c-4 because the Polish Hall is owned and operated pursuant to a joint venture agreement containing a mandatory arbitration provision. (See para. 3).
Following arbitration, the Applicant seeks permission to appeal the award to the Court of King’s Bench (i.e., pursuant to s. 44 of the Arbitration Act). The Chambers Judge declines to grant permission to appeal. (See para. 4). The Applicant then submits a notice of appeal to the Court of Appeal. The Case Management Officer advises there is “no jurisdiction to hear this appeal, and your only option is to discontinue it”. The Applicant brings a rescission application pursuant to Rule 14.36(3) of the Alberta Rules of Court, Alta Reg 124/2010. (See para. 6).
The Court of Appeal per Feehan J.A. dismisses the application to rescind the Case Management Officer’s direction. (See para. 14).
Importance:
The application was dismissed for procedural and substantive reasons. The procedural reason is that the application was brought beyond the one-month deadline set out by Rule 14.36(3) of the Alberta Rules of Court:
Any person affected by an administrative direction of a case management officer may apply to a single appeal judge within one month of the date of the administrative direction to have the administrative direction rescinded, confirmed, amended or enforced. (See para. 7).
As found by Feehan J.A., the application was “out of time” because it was not brought on or before September 11, 2025 (i.e., onemonth after the Case Management Officer’s direction); it was brought on December 11, 2025 instead. (See paras. 5, 7).
The substantive reason raises an interesting jurisdictional point. For the Applicant, s. 44(2) of the Arbitration Act provides a statutory right to appeal the Chambers Judge’s decision dismissing his application for permission to appeal the arbitration award. (See para. 10). That section provides as follows: “[i]f the arbitration agreement does not provide that the parties may appeal an award to the court on a question of law, a party may, with the permission of the court, appeal an award to the court on a question of law.” As summarized by Feehan J.A.,
Section 44(2) of the Arbitration Act allows a party to apply for permission to appeal on a question of law regarding an arbitration award to the “court”. Section 1(c)(ii) of the Arbitration Act defines “court” as the Court of King’s Bench. There is no statutory right to appeal an arbitration award to this Court. (See para. 11).
What about s. 48 of the Arbitration Act? That section provides that an appeal from the Court of King’s Bench decision under s. 44 “may, with the permission of a justice of the Court of Appeal, be made to the Court of Appeal”. Here, Feehan J.A. referred to three prior decisions of the Court of Appeal (i.e., Sherwin-Williams Company v. Walls Alive (Edmonton) Ltd., 2003 ABCA 191 at paras. 1, 11, 12, 17; 719491 Alberta Inc v. Canada Life Assurance Company, 2021 ABCA 419 at paras. 68-70, 74; and Schafer v. Schafer, 2022 ABCA 358 at paras. 20, 21) as authority for the proposition that “the denial of permission to appeal an arbitration award pursuant to s. 44(2) of the Arbitration Act is final; it is not a decision that can be appealed pursuant to s. 48”. (See para. 12). Feehan J.A. concluded that “[t]his Court does not have jurisdiction to consider an appeal of the refusal to grant permission to appeal an arbitrator’s award under s 44(2)”. (See para. 12).
Following this substantive point, Feehan J.A. went on to conclude that the Case Management Officer “did not exceed the jurisdiction bestowed on her”, was “correct to inform Mr. Sejnowski of case law that, as I have independently determined, was fatal to his appeal”, and “provided a fair and reasonable option…to discontinue the appeal without incurring additional expense”. (See para. 13).
However, when one reads Schafer v. Schafer, 2022 ABCA 358 at paras. 20-23, one is struck by Pentelechuk J.A.’s point regarding “the need for clarification of the scope of this Court’s jurisdiction to hear matters that are ancillary to the arbitral decision and to balance the need for reviewability (and consistency in the development of the law) with finality”, as well as her observation that “[s]uch clarification is best provided by a panel of this Court”. (See Schafer at para. 23). Of further interest, Pentelechuk J.A.’s reasons observe that, following Sherwin-Williams, the Court of Appeal confirmed that s. 48 of the Arbitration Act “does not vest jurisdiction to hear an appeal from a refusal by the Court of Queen’s Bench to grant permission to appeal” in 719491 Alberta Inc v. Canada Life Assurance Company, 2021 ABCA 419. (See Schafer at para. 20). Leave to Appeal was dismissed by the Supreme Court of Canada in that matter, which has left these key questions without a definitive answer.
For the present time, the reasons of Feehan J.A. affirm the status quo: where the Court of King’s Bench does not provide permission to appeal, that is the end of the road. There is no independent basis to do so provided by the Arbitration Act.
Counsel for the Applicant: T. Sejnowski
Counsel for the Respondents: Avnish Nanda (Nanda & Company, Edmonton)