38 THE ADVOCATE
VOL. 78 PART 1 JANUARY 2020
both parties on the issue, to exercise the discretion to refuse an order for
One can only hope that the Williston ruling will be revisited, ideally by
the Court of Appeal. The potential that a successful arbitration party may
be made whole by an award of actual reasonable legal fees is a tangible benefit
of domestic arbitration. The prospect that cost awards will be automatically
set aside for “arbitral error” if production of a solicitor’s files is refused
has had a real detrimental impact on the cost effectiveness, timeliness and
fairness of domestic arbitral proceedings in British Columbia. Even more
disturbing is the prospect that in addition to being susceptible to an appeal
for error of law under s. 31 of the Act, any substantive award may be set
aside for arbitral error if the presiding judge happens to disagree with the
manner in which the arbitrator exercised his or her discretion in deciding a
precursor application for document production.
1. 2019 BCSC 1503 Ogopogo.
2. RSBC 1996, c 55.
3. 2007 BCSC 190 Williston.
4. Ogopogo, supra note 1 at para 10.
5. Williston, supra note 3 at para 49.
6. 2014 SCC 53.
Learn more at divorcemate.co
call 1.800.653.0925 x407 or e
Steve at firstname.lastname@example.org