The Petitioner Her Majesty the Queen in Right of the Province of B.C. (the “Province”) applied for leave to appeal the decision of an Arbitrator acting under the Commercial Arbitration Act, R.S.B.C. 1996, c. 55 (the “Act”) in respect of a dispute the Province had with the Respondent resort company (the “Respondent”). The Court denied the Province’s application for leave to appeal.

Administrative law – Decisions of administrative tribunals – Arbitration Board – Government – Contract to provide park services – Terms of agreement – Judicial review – Compliance with legislation – Appeals – Leave to appeal – Discretion of court – Powers under legislation

British Columbia v. Gibson Pass Resort Inc., [2009] B.C.J. No. 162, British Columbia Supreme Court, February 4, 2009, G.D. Burnyeat J.

The Province and the Respondent entered into two contracts under which the Respondent was required to provide park services to the public in certain provincial parks (the “Agreement”). The Respondent was required to pay certain amounts to the various suppliers and other parties relied upon by the Respondent in relation to the services performed under the Agreement. The Agreement also included, in Articles 9.1, 9.2, and 9.3, provisions permitting the Province to demand that certain money (payable under the Agreement) be paid within 30 days or the Province could cancel the Agreement.

In the fall 2007, the Province found out the Respondent had failed to pay three of its suppliers. On November 14, 2007, the Province gave the Respondent written notice that the Respondent had 30 days to pay those suppliers or the Province would treat the Agreement as cancelled or pursue other remedies. Within the 30 days, the Respondent had not paid two of the three suppliers. The Respondent paid both of the two suppliers by mid-January 2008.

On January 4, 2008, the Province sent notice to the Respondent that it was terminating the Agreement. On January 11, 2008, the Respondent sent a Notice of Arbitration to the Province. The issue in the Arbitration was whether the termination notice complied with the Agreement. The Arbitrator decided that the funds the Respondent owed to other parties were not captured within Article 9.1, which referred to funds payable “under this Agreement” because that phrase was not intended to capture funds payable by the Respondent to third parties even if related to the services under the Agreement. Therefore, the Arbitrator decided in favor of the Respondent.

The Province brought the within Petition for a judicial review of the Arbitrator’s decision. Section 31 of the Act allows for an appeal to the court if the appeal concerns a question of law and if the parties to the arbitration consent or if the court grants leave to appeal. If the appeal concerns a question of law, the court may grant leave to appeal depending on the application of factors listed in section 31 of the Act.

The Court determined that the application for leave to appeal concerned the interpretation of Article 9.1 of the Agreement in combination with an interpretation of the letter sent by the Province to the Respondent in respect of Article 9 of the Agreement. Therefore, the court concluded the Province’s application related to a question of fact or mixed law and fact and, as such, was not open to appeal under section 31 of the Act.

The Court continued to consider, in the alternative, whether leave would have been granted if the court erred in determining that the leave application did not relate to a question of law. The Court held that leave would not have been granted.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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