THE ADVOCATE 33
VOL. 78 PART 1 JANUARY 2020
(b) 75% of the fee bills and disbursements of Church and Company
amounting to $305,515.86.
The first thing to note about Ogopogo is that the arbitrator did not award
the full amount of the claimant’s actual reasonable legal fees. Having found
that the claimant was entitled to a “substantial” award but “not necessarily
full indemnity costs”, the arbitrator made an award that was twenty-five per
cent lower than the claimant’s actual legal fees. While the amount was calculated
based on seventy-five per cent of the amount claimed, one might
ask why the question of whether the amount claimed was reasonable matters.
There was a lump sum costs award for an amount substantially less
than the claimant’s actual legal fees. Based on the court’s reasons, however,
it appears that the parties and the court approached the matter as though
the quantum awarded by the arbitrator depended on a finding that the total
amount of fees claimed was reasonable.
In both Williston and Ogopogo, the arbitrator gave each party the opportunity
to present evidence and argument concerning costs. In each case, the
act of the arbitrator that the court found amounted to a denial of natural justice
was the arbitrator’s decision to refuse a request to order further document
production. This was found to be a denial of natural justice because
in the courts’ view it is simply not possible, in any circumstances, to perform
an informed analysis of the reasonableness of a lawyer’s fees without
access to the lawyer’s files. Thus, whatever facts and circumstances the
arbitrator may have considered, and whatever reasons the arbitrator may
have had for refusing the document production request after hearing from
both parties, the decision to refuse production was found to be a denial of
natural justice. This finding is clearly wrong.
As stated in Williston, the content of the procedural fairness obligation “is
to be decided in the specific context of each case and will depend on the circumstances
of the case, the statutory provisions and the nature of the matter
to be decided”.5 There are many circumstances in which an arbitrator in
a commercial arbitration can quite properly, and without denying natural
justice, refuse a request for document production.
The rules concerning “discovery” in domestic arbitrations in British
Columbia are very different from those that apply in court proceedings.
Indeed, the term “document production” is used in part to distinguish the
process from court-like “document discovery”. The main difference is that
the arbitrator has a gatekeeper role. No party has a “right” to discovery of
documents. Absent agreement, every request for document production
must be approved by the arbitrator and enforced through the pronounce-