Commercial Litigation and Dispute Resolution Blog

Section 43 of the Alberta Arbitration Act is a statutory exception to functus officio

Historically, the doctrine of functus officio applied to hold that a decision maker could not reopen a hearing or amend an award that was final. This doctrine has, however, been relaxed over time in the judicial, administrative, and arbitration contexts. There are now a number of common law and statutory exceptions that allow for decision makers to correct awards.

One such statutory exception to functus officio is section 43 of the Arbitration Act.[1] Section 43, which replicates other domestic and international legislation, makes it clear that arbitrators have the jurisdiction to make corrections to awards.

Section 43 of the Arbitration Act allows a party to request an award correction in two ways: either a correction of a typographical or calculation error (often labelled a “slip”) or to “correct an injustice caused by an oversight” (often labelled an “oversight”). The correction request must be made within 30 days after receipt of an award.

Correction of errors

43(1) An arbitral tribunal may, on its own initiative within 30 days after making an award or at a party’s request made within 30 days after receiving the award,

(a) correct typographical errors, errors of calculation and similar errors in the award, or

(b) amend the award so as to correct an injustice caused by an oversight on the part of the arbitral tribunal.

(2) The arbitral tribunal may,

(a) on its own initiative within 30 days after making an award or such longer time as approved by the parties, or

(b) at the request of a party within 30 days after receipt of the award by that party,

make an additional award to deal with a matter in dispute that was presented in the arbitration but omitted from the earlier award. [Emphasis added]

The Alberta Courts have confirmed that arbitrators have the power and jurisdiction to make corrections to awards: “Section 43 permits correction of typographical errors, errors of calculation and similar errors in an award or injustices caused by an oversight by the arbitral tribunal. This is the mechanism prescribed in the legislation to deal with such matters”^[2] and “[m]athematical errors, or clear misunderstandings such as money that was credited but proven not to have been paid, are matters that can be dealt with, under the Arbitration Act section 43”.^[3]

Alberta Arbitration Act provides a broader scope of correction than in British Columbia

Significantly, the ability of arbitrators to correct awards is not equal in Canadian jurisdictions. Section 43 does mirror several other domestic arbitration acts in Canada (such as Ontario, which has similar wording to section 43 of the Arbitration Act) in providing potential award corrections for either a “slip” or an “oversight”.[4] However, some other provincial statutes, such as the British Columbia Arbitration Act,[5] contain narrower language, which only permits corrections for “slips” and does not contain the additional “oversight” section.

The case law holds that because the Alberta Arbitration Act contains both the slip and oversight sections, it therefore provides wider jurisdiction for an arbitrator to correct awards.

The scope of a “slip” correction

The scope of section 43(1)(a) of the Arbitration Act is similar to that of error corrections by the Alberta courts. Rule 9.12 of the Alberta Rules of Court provides: “On application, the Court may correct a mistake or error in a judgment or order from an accident, slip, or omission”.

Judicial decisions that have reviewed corrections by arbitrators pursuant to the “slip” section have found the following to be acceptable corrections:

• an arbitrator’s correction of an arithmetic error and the failure to account for a deposit that had in fact been made;[6]
• the correction of an obvious interest rate calculation error.[7]

Other decisions have found the following corrections to have been made in error:

• the rewriting of an entire section of the award;[8]
• changing the outcome or (or reversing) the decision.[9]

The jurisdiction to make such corrections is based on whether the correction implements or clarifies the full or proper intent of the arbitrator’s original reasoning and intention in this regard. The courts distinguish between corrections that clarify the expression of the tribunal’s thoughts on the one hand (which can be corrected) and corrections that would indicate that an arbitrator had second thoughts on the other (which cannot be corrected).[10] In the latter case where the award is erroneous due to improper evidence assessment or an error of law, the remedy is to appeal rather than request correction, since a correction would, in effect, change the arbitrator’s actual decision-making process.

The scope of an “oversight” correction

Several provincial arbitration statutes in Canada restrict award corrections to only the “slip” category.[11] However, Alberta’s Arbitration Act provides a second category of corrections (the “oversight”) in which an arbitrator has wider jurisdiction to correct awards, including in situations where the correction may go beyond the arbitrator’s original reasoning and intention.

The Ontario judgment in 1210558 Ontario Inc. v 1464255 Ontario Ltd. discusses the differences in the “slip” section and the “oversight section” in the Ontario Arbitration Act (which matches the language of the Alberta Arbitration Act).  In 1210558 Ontario Inc., the Court held that the concept of an “oversight” is not limited to situations of an arbitrator’s “expressed intention” in the same way as a “slip” since the word “oversight” incorporates a failure to notice or think of something (a lack of intention):[12]

38        First, and most importantly, the plain meaning of s. 44(1)(b) is broader than a mere slip, as proposed by the applicants. In essence, the applicants submit that "oversight" means an unintentional failure to give effect to the Arbitrator's expressed intention. However, the plain meaning of the term "oversight" is not so limited. For example, the Concise Oxford English Dictionary, 10th ed., s.v. "oversight" defines the term in the context in which it is used in s. 44(1)(b) to mean "the unintentional failure to notice or do something". The Arbitrator makes the same observation at para. 19 of his supplementary reasons where he comments that oversight generally means an unintended omission resulting from a failure to notice or think of something.

39    Further, in my opinion, as a related matter of interpretation, the concept of a "slip" is captured by the language of s. 44(1)(a), which refers to correcting by typographical errors, errors of calculation and similar errors in the award. This wording is sufficient, in my opinion, to capture all of the circumstances in which an award fails to give effect to the arbitral tribunal's expressed intention. On this basis, to give effect to the words in s. 44(1)(b), it is necessary to go beyond the concept of a slip that is caught by s. 44(1)(a). I think this necessarily includes actions of the Arbitrator that extend beyond correcting an award to give effect to the expressed intention of an arbitral tribunal as set out in the record. Such actions could include actions constituting an unintended or inadvertent denial of natural justice. [Emphasis added].

The court held that the circumstances set out in in the oversight section are circumstances where the legislature has declared that an arbitrator is not functus, and instead shows the legislature’s intention to give an arbitrator authority to reopen a hearing in circumstances that are beyond the traditional “slip” rule. 

With this interpretation, parties to arbitrations under legislation that incorporates the “oversight” provision (such as the Alberta Arbitration Act) have a broader scope to request corrections to awards than under legislation with only the “slip” provision (such as the British Columbia Arbitration Act).

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[1] Alberta Arbitration Act, RSA 2000, c A-43 [Arbitration Act].

[2] Dawson v Dawson, 2016 ABQB 167 at para 46.

[3] Arnason v Arnason, 2011 ABQB 393 at para 66.

[4] Ontario Arbitration Act, SO 1991, Chapter 17, at section 44(1).

[5] RSBC 1996,  Chapter 55 at section 27.

[6] Pross Renovations Ltd. v Lemay, 2010 BCSC 80 at paras 28-29 and 39.

[7] Fat Cat Farms Ltd. v Wolfe, 2017 MBQB 76 at paras 7 and 8, affirmed in 2017 MBCA 124

[8] Westnav Container Services Ltd. v Freeport Properties Ltd., 2010 BCCA 33, leave to appeal refused [2010] SCC No. 95

[9] Ford Motor Co. of Canada v Sheriff, 2012 BCSC 891.

[10] J. Kenneth McEwan, Q.C. & Ludmila B. Herbst, Commercial Arbitration in Canada: A Guide to Domestic and International Arbitrations (Aurora, Ont.: Canada Law Book, 2008) at 9-50 – 9-51.

[11] See for example, British Columbia and Newfoundland.

[12] 1210558 Ontario Inc. et al v 1464255 Ontario Limited et al, 2011 ONSC 5810 at paras 38 and 39.