30 THE ADVOCATE
VOL. 78 PART 1 JANUARY 2020
(b) the persons who must pay the costs;
(c) the amount of the costs or how that amount is to be determined;
(d) how all or part of the costs must be paid.
(2) In specifying the amount of costs under subsection (1) (c), the arbitrator
may specify that the costs include
(a) actual reasonable legal fees, and
(b) disbursements, including the arbitrator’s fees, expert witness
fees and the expenses incurred for holding the hearing.
(3) In specifying how costs are to be determined, the arbitrator may
refer the matter to a registrar of the Supreme Court for assessment.
(4) The registrar is not to assess the costs referred under subsection (3)
as though they were costs in a proceeding in the Supreme Court but
must assess them in the manner specified by the arbitrator.
The arbitrator is expressly granted the discretion to decide “the amount”
and “how that amount is to be determined”. An award of costs is a monetary
award that settles a matter in dispute between the parties.
Section 30 of the Act states:
(1) If an award has been improperly procured or an arbitrator has committed
an arbitral error, the court may
(a) set aside the award, or
(b) remit the award to the arbitrator for reconsideration.
(2) The court may refuse to set aside an award on the grounds of arbitral
(a) the error consists of a defect in form or a technical irregularity,
(b) the refusal would not constitute a substantial wrong or miscarriage
(3) Except as provided in section 31, the court must not set aside or remit an
award on the grounds of an error of fact or law on the face of the award.
(4) Nothing in this section restricts or prevents a court from changing,
suspending or terminating all or part of an award, in respect of a
family law dispute, for any reason for which an order could be
changed, suspended or terminated under the Family Law Act.
Section 1 of the Act defines “arbitral error” as including a “failure to
observe the rules of natural justice”.
In Ogopogo an arbitrator had made an award requiring the respondent to
pay as costs an amount that was seventy-five per cent of the claimant’s
actual reasonable legal fees. The respondent petitioned the court under
s. 30 of the Act to set aside the award on the grounds that the arbitrator had