We were recently successful in quashing an appeal in relation to a commercial arbitration award. The decision of the British Columbia Court of Appeal in Sinclair v. T.D.M.C. Holdings Ltd., 2025 BCCA 402 (“Sinclair“) stands as an important precedent for any party seeking to appeal an arbitration award in British Columbia.

In British Columbia appeals from arbitration awards are governed by the Arbitration Act, SBC 2020 c. 2 (“Arbitration Act“), which provides that a party seeking to appeal an arbitration award must bring an application for leave to appeal within 30 days of the issuance of the award. In Sinclair, the appellants brought their application for leave to appeal within that 30 day period. However, the respondents, who also wished to seek leave to appeal, did not bring their application for leave to appeal within that 30 day period. Instead, the respondents filed a notice of cross-appeal within the lengthier period provided by the Court of Appeal Rules, BC Reg 120/2022 (the “Court of Appeal Rules“) and subsequently brought an application for leave to appeal after the expiry of the 30 day period under the Arbitration Act.

The appellants responded with an application for an order quashing the respondents’ cross-appeal on the basis that the Court of Appeal had no jurisdiction to hear it. The respondents resisted the application on the basis that the 30 day period under the Arbitration Act did not apply because the respondents were seeking to bring a cross-appeal governed by different timelines in the Court of Appeal Rules.

The application was heard by a single judge in Court of Appeal chambers. The chambers judge dismissed the application, holding that the 30 day timeline in the Arbitration Act did not trump the lengthier timeline for cross-appeals in the Court of Appeal Rules. As a result, the chambers judge concluded that the respondents’ notice of cross-appeal was brought in time and the respondents were entitled to seek leave to appeal.

The appellants then brought an application seeking to vary the order of the chambers judge. That variance application was heard by a three judge division of the Court of Appeal. The three judge division unanimously held that the chambers judge erred and reversed his decision. In particular, the Court of Appeal reasoned (based on a detailed statutory analysis of the governing legislation) that the 30 day timeline in the Arbitration Act governs and that any party seeking to appeal from an arbitral award must bring an application for leave to appeal within 30 days.

The implication of the decision in Sinclair is that any party to an arbitration that may wish to appeal an arbitral award must ensure strict compliance with the 30 day deadline under the Arbitration Act, failing which they will forever lose their right to seek leave to appeal. As a result, parties that may wish to appeal an arbitral award must act quickly in assessing whether to seek leave to appeal. It matters not whether their prospective appeal is characterized as the “main appeal” or a “cross-appeal”: the same 30 day deadline applies.

The Court’s decision is faithful to the wording of the Arbitration Act and the principles of statutory interpretation, but it is admittedly inconvenient for those parties whose decision to seek leave to appeal may be dependent on whether the opposing party seeks leave to appeal. If a party’s decision to seek leave to appeal may be dependent on whether the opposing party seeks leave to appeal, the prudent course of action is to take the necessary steps to preserve the right to seek leave to appeal within the 30 day period and then reassess whether to proceed with the appeal process after the expiry of the 30 day period.

The decision may cause parties to tactically engage in a reverse of the proverbial “race to the courthouse”. If a party files first, and sufficiently in advance of the end of the 30 day period, then doing so may prompt the opposing party to file for a cross-appeal before the end of the 30 day period. As a result, parties may have an incentive to wait until the last minute to file.

It is for these reasons that the Court urged the Legislature to “to give careful consideration to amending the Arbitration Act to include a separate time limit for the filing of a cross appeal as that procedure is contemplated in the [Court of Appeal] Act”. As the Court explained, doing so “would have no more than a negligible impact on the time it takes for an arbitral appeal to proceed through the Court” and it “would, as well, have a salutary restraining effect on the launching of potentially unnecessary appeals.”

The decision leaves open the interesting question of whether the requirement to bring “an application for leave to appeal” within 30 days requires only that the party file a notice of appeal (indicating that leave is required) within 30 days, or whether the party must also file its notice of application for leave to appeal and its application book, which must include the party’s memorandum of argument. In Sinclair, the appellants filed their notice of appeal (indicating that leave is required), their notice of application for leave to appeal, and their application book all within the 30 day period. Time, and further guidance from the Court of Appeal in future cases, will tell whether doing so was required or overly cautious.