Costs in a Commercial Arbitration in Ontario

A commercial arbitration is paid for by the parties. Counsel bill their clients, the arbitrator bills the parties, and the hearing room, the transcripts and the experts are paid for as the case proceeds. When the award is made, the question becomes who bears those sums in the end, and the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”), answers it in six (6) subsections. Section 54(1) provides that “[a]n arbitral tribunal may award the costs of an arbitration,” and s. 54(2) defines those costs as “the parties’ legal expenses, the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration.” Rutherford J. described the section in Azurix North America Engineering Corp. v. Deep River (Town), 2006 CanLII 17927 (S.C.J.) (“Azurix”), at ¶ 10, as a discretionary power followed by “a mini-costs-code,” and that description has held. The code says nothing about scales, tariffs or the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), and the cases have had to work out what an arbitrator may do with the discretion the section confers.

The answer that has emerged is that the arbitrator’s discretion is wide, that it must be exercised judicially, that the court will rarely interfere with it, and that the parties can shape or displace it in their agreement. An arbitrator may award a successful party its reasonable legal fees without reference to any court scale, may give effect to an offer to settle under s. 54(5), may include the fees of litigation-support counsel and experts, and may not award costs the agreement has allocated differently or costs of a process that preceded the arbitration. The court reviews a costs award only for an error in principle or a plainly wrong result, and only through the narrow doors of an appeal under s. 45 or an application to set aside under s. 46. This article takes the subject in order, from the statutory code to the costs of the court proceedings that surround an arbitration, and closes with the steps that decide most costs disputes before the award is made.

The statutory code in section 54

Section 54 does five (5) things. Subsection (1) confers the power. Subsection (2) defines the costs of an arbitration as the parties’ legal expenses, the tribunal’s fees and expenses and “any other expenses related to the arbitration.” Subsection (3) deals with an award that is silent on costs, stating, “[i]f the arbitral tribunal does not deal with costs in an award, a party may, within thirty days of receiving the award, request that it make a further award dealing with costs,” and s. 43(4) provides that a terminated arbitration may be revived for that purpose. Subsection (4) supplies the default where no costs award is made, stating, “[i]n the absence of an award dealing with costs, each party is responsible for the party’s own legal expenses and for an equal share of the fees and expenses of the arbitral tribunal and of any other expenses related to the arbitration.” Subsections (5) and (6) deal with offers to settle, and they are discussed below.

Two (2) other provisions frame the section. Section 3 allows the parties to an arbitration agreement to “vary or exclude any provision of this Act” except the provisions it lists, and s. 54 is not among them, so a costs clause in the agreement prevails over the statutory discretion; that consequence is the subject of Simcoe Condominium Corporation No. 78 v. Simcoe Condominium Corporation Nos. 50, 52, 53, 56, 59, 63 and 64, [2006] O.J. No. 605 (S.C.J.) (“Simcoe”), discussed below. Section 44 allows the tribunal to correct an award, and in Italiano v. Toronto Standard Condominium Corp. No. 1507, 2008 CanLII 32322 (S.C.J.) (“Italiano”), McWatt J. held at ¶¶ 46-48 that an arbitrator who had decided the scale of costs was functus on that question but was not functus on the quantum and the mechanics of payment, and could receive further submissions on them.

The current state of the law was summarized in Tamar Meshel’s Arbitration Law: Statutes, Cases and Commentary (LexisNexis) at § 10.09[1][c], which states that arbitrators “have jurisdiction to award costs” and “may also order the parties to pay an advance on costs,” that s. 54 “does not refer to the Rules of Civil Procedure or to the concept of scale of costs,” and that the ordinary rule is that “the successful party should recover reasonable legal fees without reference to any court scale, absent the agreement of the parties or specific legislation.” The same section records that “[t]here is ‘vagueness and uncertainty in the authorities’ and no ‘clear rule’ as to whether arbitration costs may be awarded on a full indemnity basis without finding any undue conduct by a party,” a point on which the two (2) leading recent decisions, discussed next, pull in different directions.

What the costs of an arbitration include

The definition in s. 54(2) is wider than the court’s concept of costs. It names three (3) components. The first is the parties’ legal expenses, which the cases treat as including the fees of counsel at the hearing and the fees of other lawyers whose work was required by the arbitration. In Schickedanz v. Wagema Holdings Ltd., 2023 ONSC 7219 (“Schickedanz”), the claimant discontinued a shareholder arbitration against her four (4) brothers and the family holding company after substantial expense had been incurred, and the arbitrator, the Honourable Frank J.C. Newbould, awarded the brothers $409,426.48 plus HST and awarded the company its litigation counsel’s fees of $48,380 plus HST together with $172,150.34 paid to the corporate law firm that had acted on the underlying transaction under a litigation-support retainer (¶ 21). Vermette J. upheld the litigation-support fees at ¶ 71, since the arbitrator had found that “the assistance provided by Gowling to Wagema and its litigation counsel to bring litigation counsel up to speed and to produce documents was an appropriate expense,” and the arbitrator “was in the best position to make this factual determination.”

The second component is the fees and expenses of the tribunal. Those fees can be substantial; in Electek Power Services Inc. v. Greenfield Energy Centre Limited Partnership, 2022 ONSC 2437 (“Electek (Costs)”), Perell J. recorded at ¶ 12 that the arbitration “proceeded before a blue-ribbon arbitration panel” of three (3) arbitrators and that “[t]he Arbitrators cost $2,400 per hour.” Under s. 54(4), the default in the absence of a costs award is that the parties share those fees equally, and the party that advanced more than its share recovers the difference only through an award.

The third component is “any other expenses related to the arbitration,” which takes in experts, transcripts, hearing facilities and the like, subject always to the arbitrator’s view of what was reasonable. In Nasjjec Investments Ltd. v. Nuyork Investments Ltd., 2015 ONSC 4978 (“Nasjjec”), the arbitrator awarded the successful party $1,007,026 in costs, including disbursements of $206,840, “[a]fter deducting amounts of $20,000 to reduce an expert’s fee for corrective work and $18,703 in respect of time spent on matters outside the scope of the arbitration” (¶ 103), and Pattillo J. found no unfairness in the result.

The limit on the definition is the word “arbitration.” Costs of a process that preceded the arbitration are not costs of the arbitration unless the agreement or a statute makes them so. In Toronto Standard Condominium Corp. No. 1466 v. Weinstein, 2021 ONSC 1306 (“Weinstein”), leave to appeal refused 2021 ONCA 470, the arbitrator had treated the mandatory condominium mediation and the arbitration as “separate phases of a single mandated process” and had awarded the legal costs of both (¶ 48). Davies J. held at ¶ 50 that “[s]ection 54 does not make any reference to the costs of mediation that precedes the arbitration” and at ¶ 52 that “the arbitrator did not have authority to order Mr. Weinstein to pay legal fees associated with the failed mediation,” following Italiano, where the costs award had been reduced for the same reason. A different view was taken in 90 George Street Ltd. v. Ottawa-Carleton Standard Condominium Corp. No. 815, 2015 ONSC 336 (“90 George Street”), where Smith J. held at ¶ 114 that, because the Condominium Act, 1998, S.O. 1998, c. 19, “requires parties to mediate budget disagreements before undertaking arbitration,” the mediation “did not represent an exercise of discretion by the parties prior to commencing arbitration and for that reason costs encompassing the mediation are related to the arbitration process and are proper and appropriate.” The two (2) decisions are not reconciled, and a commercial party that wants the costs of a contractual mediation or negotiation step to be recoverable in the arbitration should say so in the agreement.

The scale of costs and the absence of the Rules

The question that divides the cases is whether an arbitrator must think in the court’s categories of partial and substantial indemnity. The statutory answer is that the Act does not require it. As Vermette J. observed in Schickedanz at ¶ 45, “[s]ection 54 does not refer to the Rules of Civil Procedure or to the concept of scale of costs,” and at ¶ 54(e) that “partial indemnity costs” and “substantial indemnity costs” are defined in rule 1.03 by reference to Tariff A, while “[t]here are no references to the Rules of Civil Procedure or Tariff A in the Arbitration Act.” The arbitrator in that case had relied on J. Brian Casey’s Arbitration Law of Canada: Practice and Procedure for the proposition, quoted at ¶ 46, that “[t]he practice in most domestic arbitrations is to award reasonable legal fees without reference to any court scale, absent the agreement of the parties or specific legislation,” and Vermette J. held at ¶ 47 that “[t]hese general principles are consistent with the language in section 54 of the Arbitration Act,” noting support in other provinces for the view that “full indemnity is the norm regarding commercial arbitration,” citing K-Rite Construction Ltd v. Enigma Ventures Inc, 2020 ABQB 566, at ¶ 38, and Allard v. The University of British Columbia, 2021 BCSC 60, at ¶ 78. The conclusion at ¶ 56 was that “the Arbitrator did not make an error in principle and was not plainly wrong when he decided to award Wagema its full legal expenses as costs of the arbitration.”

The same position was taken, in obiter, by Penny J. on the Commercial List in Taseko Mines Ltd. v. Franco-Nevada Corp., 2023 ONSC 2055 (“Taseko”), where the appeal from the award succeeded on the merits and the costs appeal did not have to be decided. Penny J. said at ¶ 115 that “[t]he rules of court do not apply to the discretion of a private arbitrator to award costs” and at ¶ 116 that “[t]he ordinary rule in arbitration proceedings is that the successful party should recover reasonable legal fees without reference to any court scale, absent the agreement of the parties or specific legislation,” and would have found the arbitrator’s award of “its reasonable legal fees and expenses” reasonable. Earlier decisions point the same way. In Azurix at ¶ 10, Rutherford J. was “not at all sure that the arbitrator is necessarily required to be guided by the provisions of Rule 57.01,” and in Necrovore Inc. v. Andover Land Corp., 2007 CanLII 34849 (S.C.J.) (“Necrovore”), Spiegel J. agreed at ¶ 21 “that the provisions of the Rules of Civil Procedure with respect to costs were not binding upon the arbitrator, and had the parties intended that they be binding they were free to stipulate to that effect in the arbitration agreement.”

The other line of authority treats the court’s scales as the natural measure. In Electek (Costs), the tribunal had made no costs award because the court had found on a de novo application under s. 17(8) that the tribunal lacked jurisdiction, and Perell J. fixed the costs of the arbitration hearing as well as the costs of the court application. He stated at ¶ 27 that “[t]he most general rule about costs, not to be departed from without good reason, is that costs at a partial indemnity scale follow the event,” and at ¶ 31 that the arbitrator’s “discretion must be exercised judicially and not irrationally or whimsically” and that “[i]t is within an arbitrator’s discretion to order substantial or full indemnity if it is justified after looking at the prior conduct of a party when making such an award.” Applying that approach at ¶ 32, he found that “[t]here is nothing in the conduct of the parties that calls out for a punitive award,” since the adversaries “did not depart from the rules of engagement,” and awarded $300,000 for the arbitration hearing and $125,000 for the application, both on a partial indemnity basis, against a claim for $616,312.06 on a full indemnity basis (¶¶ 1, 5).

Schickedanz confronted Electek (Costs) directly and confined it. Vermette J. held at ¶ 54 that Electek “does not stand for the general proposition that the costs of a commercial arbitration must be granted on a partial indemnity scale except where the losing party’s conduct was reprehensible, scandalous or outrageous,” for reasons that included that Perell J. “awarded the costs of the arbitration as a judge of this Court” and “was not ruling on a costs award made by the arbitral tribunal,” that he did not appear to have been shown the relevant passage of the Casey text, and that the three (3) cases he relied on, Italiano, Azurix and Rosenfeld v. Iamgold International African Mining Gold Corp., [1997] O.J. No. 3770 (Gen. Div.) (“Rosenfeld”), “do not support the broader principle that full indemnity costs cannot be awarded in other circumstances” and “also do not support the principle that arbitrators must approach costs in the same manner as courts do under the Rules of Civil Procedure.” Those three (3) cases are nonetheless the ones that an arbitrator asked to award costs above the ordinary measure on the ground of conduct will be shown. In Italiano at ¶ 43, McWatt J. held that “[i]t is within an arbitrator’s discretion to order full indemnity if it is justified after looking at the prior conduct of a party when making such an award,” and in Rosenfeld, Somers J. upheld an award by the Honourable Patrick Galligan that gave the successful parties their solicitor-and-client accounts in full for the matters within his jurisdiction, on the arbitrator’s finding that the claim “amounted to nothing more than, to adopt words chosen by Mr. Wires, ‘a business play’ against that company at a time when it was uniquely vulnerable to such an attack” (¶ 11), holding at ¶ 12 that “the arbitrator was entitled to look at the applicant’s prior conduct, as well as that evidenced during the course of the hearing.”

Where the parties have adopted the court’s measure, the court’s measure applies. In Pagliaroli v. Rite-Pak Produce Co., 2010 ONSC 3729 (“Pagliaroli”), the arbitration agreement provided that the arbitrator “will have discretion to award costs of the arbitration including all pre-hearing motions and proceedings in the same manner and on the same scale as he deems appropriate as would a judge of the Superior Court of Justice” (¶ 69). The arbitrator awarded partial indemnity costs to a date and “substantial indemnity costs thereafter, approaching full indemnity” (¶ 65), and Grace J. held at ¶ 72 that only two (2) of the five (5) factors the arbitrator had listed could support costs above the partial indemnity scale on the authorities; namely, “service of an offer in circumstances which trigger the application of Rule 49.10 of the Rules of Civil Procedure or the arbitrator’s conclusion that the Rite-Pak group made ‘unfounded personal allegations’” against the claimant. Since the offer had been served one business day before the hearing and the allegations were not unfounded, the costs were reduced to a partial indemnity award of $185,000 (¶¶ 72, 75, 78). Vermette J. distinguished Pagliaroli in Schickedanz at ¶ 55(b) on exactly that ground, that “the issue of costs was specifically addressed in the parties’ arbitration agreement.”

The practical position, then, is as follows. An arbitrator under the Act who has not been directed to the Rules may award the successful party its reasonable legal expenses in full without any finding of misconduct, and Schickedanz and Taseko will protect that award on review; an arbitrator who elects to reason in the court’s scales may do so and will be protected by Electek (Costs); and a party that wants one approach rather than the other must put it in the agreement, as the parties in Pagliaroli did. Whichever measure is used, the overriding requirement is the one stated in Azurix at ¶ 11, that the discretion “cannot be exercised arbitrarily, irrationally or whimsically,” and “must be exercised judicially.”

Costs follow the event and the exercise of the discretion

Although the Rules do not bind the arbitrator, the general principles that inform costs in litigation do. In Necrovore, the successful claimant on a joint venture dispute was awarded no costs by an experienced arbitrator who had drawn counsel’s attention at the outset to an old case suggesting that parties who leave important transactions to oral arrangements should each bear their own costs (¶ 24). Spiegel J. allowed the appeal, which was confined to questions of law, holding at ¶ 18 that “[a]n arbitrator exercises a judicial function and where he is vested with discretion pursuant to the terms of the arbitration agreement or the Act, that discretion must be exercised on proper legal principles,” at ¶ 23 that “[i]t is well established that the usual rule is that costs should follow the event in the absence of special circumstances,” and at ¶ 37 that “there were no proper legal principles or considerations that favoured a denial of costs to a party who was totally successful on the merits, made a favourable offer to settle, and was not guilty of any misconduct.” The matter was remitted to the arbitrator to fix costs on a partial indemnity basis (¶ 38).

Deciding who won is itself within the discretion. In Azurix, a lengthy construction arbitration with a claim and a counterclaim, the arbitrator measured success by asking “[a]t the end of the day, who owes whom money?” (¶ 4), and Rutherford J. held at ¶ 11 that the arbitrator “recognized that there may be other measures of who should pay, but selected the ‘who must pay who’ measure as the way to best assess the result in the particular case he had before him,” and that he had acted judicially. In Best Buy Canada Ltd. v. Roselawn and Main Urban Properties Inc., 2018 ONSC 92 (“Best Buy”), a ten (10) day market-rent arbitration under a retail lease, the landlord had claimed $1,653,740 per year and offered to settle at $1,550,000, the tenant had claimed a figure below the base rent and offered a nominal increase, and the arbitrator fixed the rent at $1,279,260 (¶¶ 5-9). The lease entitled “the prevailing party” to recover from “the unsuccessful party” its costs on a solicitor and client basis (¶ 6), and the arbitrator found that the landlord had prevailed because it had maintained throughout that the market rent exceeded the base rent while the tenant had maintained the opposite (¶ 19). Dietrich J. refused leave to appeal, holding at ¶ 17 that the arbitrator “appropriately assigned meaning to the relevant terms in the context of the Lease and the arbitration” and that “[t]he weight given to each of the factors was well within his discretion and the result is commercially sensible,” and at ¶ 24 that “[t]he Arbitrator was entitled to exercise his discretion in weighing the relevant factors he considered in making the Costs Award.”

Divided success does not compel a distributive award. In Nasjjec, the arbitrator “considered whether a distributive costs order should be made and determined that such an order was not appropriate in the circumstances of the arbitration” (¶ 117), and Pattillo J. held at ¶ 118 that the applicant had “failed to establish that there was some procedural unfairness or breach of natural justice by the Arbitrator in determining costs,” since it sought “to reargue its costs submissions which it is not permitted to do.” The arbitrator in that case had “outlined the principles involved in determining costs awards and the factors to be considered, including those set out in Rule 57.01(1); considering the fairness and reasonableness of costs in respect of both their constituent elements and their total; and proportionality” (¶ 104), which illustrates the orthodox course; the arbitrator is not bound by rule 57.01, but an arbitrator who considers its factors as a guide is safe from the charge of having ignored a relevant consideration.

Non-parties drawn into the arbitration are dealt with on the same principles. In Bergmanis v. Diamond, 2021 ONSC 2375 (“Bergmanis”), the arbitrator quashed summonses issued to three (3) law firms that were strangers to the arbitration and awarded each firm $10,000 in counsel fees plus disbursements and HST (¶ 41). The firms cross-appealed, arguing that strangers brought into litigation who succeed on a motion “should be awarded costs on a full indemnity basis” (¶ 44), and Chalmers J. dismissed the cross-appeal at ¶ 47 on the basis that “[t]he decision made by the Arbitrator to not award full indemnity costs and to award equal costs to each of the three responding sets of lawyers is within the range of reasonable outcomes.”

Offers to settle under section 54(5)

Section 54(5) brings the logic of rule 49 into the arbitration without its machinery. It provides that “[i]f a party makes an offer to another party to settle the dispute or part of the dispute, the offer is not accepted and the arbitral tribunal’s award is no more favourable to the second-named party than was the offer, the arbitral tribunal may take the fact into account in awarding costs in respect of the period from the making of the offer to the making of the award.” Section 54(6) then provides that “[t]he fact that an offer to settle has been made shall not be communicated to the arbitral tribunal until it has made a final determination of all aspects of the dispute other than costs.” The subsection is permissive, the offer need take no particular form, and the consequences are left to the tribunal rather than fixed by a rule. Smith J. in 90 George Street described it at ¶ 110 as providing “for costs consequences arising from an offer to settle, similar to those set out in Rule 49 of the Rules of Civil Procedure,” and at ¶ 124 as “comparable to Rule 49.10 of the Rules of Civil Procedure which expressly provides for a consideration of offers to settle when deciding the appropriate scale of costs to award.”

The cases show how the subsection is applied. In 90 George Street, the arbitrator had awarded costs on a substantial indemnity basis, and the first rationale he gave for the substantial indemnity scale, which concerned the losing party’s conduct, did not survive review (¶¶ 118-119). The second did. The successful party had made two (2) offers to settle, one before the arbitration began and one between the hearing dates, each for a sum less than the award (¶¶ 121-123), and Smith J. held at ¶ 125 that “[t]he Arbitrator was correct to consider the offers to settle when deciding to award costs on a substantial indemnity basis,” and at ¶ 126 that “[t]he award of costs on a substantial indemnity basis for the entire arbitration was correct. Both offers were for sums considerably less than awarded and the first offer pre-dated the commencement of the arbitration.”

In Nasjjec, the arbitrator awarded the successful party partial indemnity costs to the date of its first offer “and on a substantial indemnity basis thereafter” (¶ 103). The losing party objected that the offers “contained a term that had nothing to do with the issues in the arbitration and involved a party who was not part of the arbitration” (¶ 106), and Pattillo J. rejected the objection. He held at ¶ 110 that the arbitrator “had jurisdiction to deal with the issue of costs (the Act, s. 54)” and had been entitled to hold that the presence of terms “outside the scope of the arbitration did not foreclose him from taking the offers into account,” at ¶ 111 that “[w]hile the offers did not comply with Rule 49, Rule 49.13 provides that in exercising its discretion with respect to costs, a court may take into account any offer to settle made in writing,” and at ¶ 114 that the offers “were very reasonable and coupled with the Arbitrator’s findings regarding Nasjjec’s conduct during the arbitration, supported an award of substantial indemnity costs from the date of the first offer.” The losing party’s own offer of $50,000,000, which the arbitrator had found “was made for tactical reasons,” was properly disregarded (¶ 115).

The timing and the terms of the offer still matter. In Pagliaroli, the claimant’s offer “was not served until one business day before the commencement of the hearing” and “its existence could not justify an award of costs on a substantial indemnity basis”; the arbitrator himself had attached “little weight” to it (¶ 72). In Necrovore, the fact that the successful party had “made a favourable offer to settle” was one of the reasons the denial of costs could not stand (¶ 37). In Best Buy, both parties’ offers were among the factors the arbitrator weighed in deciding who had prevailed (¶ 20). In Metro Canada Logistics Inc. v. UWG Inc., [2007] O.J. No. 1501 (S.C.J.) (“Metro”), the fact that the losing party’s “formal written offer to settle was expressed as a settlement offer within the meaning of section 54(5) of the Act” was evidence that it had understood the arbitrator to have a success-based costs discretion, despite a clause providing for equal sharing (¶ 25).

Two (2) cautions follow from the cases. The first is that rule 49 itself has no application in an arbitration unless the parties adopt the Rules. In Clost v. Rennie, 2024 ONSC 1012 (“Clost”), which fixed the costs of a jurisdiction motion before an arbitrator after the court had set aside the arbitrator’s ruling, Bell J. noted at ¶ 8 that “the r. 49 offer to settle circumstance would not have been available because, as pointed out by Norm in his submissions, there was no agreement or order adopting the Rules of Civil Procedure to that proceeding.” The second is s. 54(6). An offer must be kept from the tribunal until it has decided everything but costs, which means that the offer should be served on the other party alone, that costs should be reserved for submissions after the award on the merits, and that neither party should refer to the offer in the hearing. A well-drawn offer will nonetheless borrow the formalities of rule 49.10; it will be in writing, made early, open for acceptance until the hearing begins, clear enough that the tribunal can compare it with the award, and expressed to be made under s. 54(5).

The arbitration agreement and the costs clause

Because s. 3 allows the parties to vary or exclude s. 54, the agreement is the first place to look. In Simcoe, the shared facilities agreement among eight (8) condominium corporations provided that “the costs of any arbitration shall be borne equally by the parties thereto,” and the arbitrator, relying on s. 54, divided the costs of about $135,000 equally between the losing applicant on one side and the successful respondents on the other (¶¶ 65-66). Belobaba J. held at ¶ 67 that s. 54 “is one of the provisions that may be varied or excluded by an arbitration agreement,” and at ¶ 68 that the parties had done so, since the clause “displaces the discretion under s. 54, and requires the arbitrator to award costs as directed,” and “is not a directive that the arbitrator can ‘consider’ and then discard; it is a requirement that must be applied according to its plain meaning.” The costs award was set aside and replaced with an equal division among the seven (7) participating parties, with the applicant “paying no more than one-seventh of the total amount” (¶ 72), and the counter-application to enforce the award was granted only for the paragraphs that survived (¶ 73).

The clause must, however, be clear about what it covers. In Metro, the agreement provided that “[t]he costs of the arbitration shall be paid by both parties equally” and excluded appeals on questions of law (¶ 3). The arbitrator, the Honourable Coulter A. Osborne, found that the clause “dealt only with the expenses of the arbitration, such as the Arbitrator’s fees but not with legal fees or disbursements incurred by the parties,” and made a success-based award of legal costs (¶ 2). Spiegel J. dismissed the application to set the award aside, holding at ¶ 22 that the parties had “removed errors of law as grounds for challenging the decision of the Arbitrator” and that the applicant therefore had to show that the arbitrator’s interpretation of the clause was “clearly wrong” (¶ 23), which it could not do; the arbitrator had found the words ambiguous, and “[a]mbiguity, like beauty, is often in the eye of the beholder” (¶ 24). The same words had been read the other way in Yonge-Eglinton Building Ltd. v. Toronto Transit Commission, [1997] O.J. No. 89 (Div. Ct.), a market-rent arbitration in which, as Spiegel J. noted at ¶ 30, “the object is to determine what is an appropriate rent rather than who wins or loses,” so that “an equal division of legal fees and expenses may well be appropriate.” Myers J. put the requirement shortly in Abittan v. Wilcox, 2020 ONSC 6836 (“Abittan”), at ¶ 19, observing that in Yonge-Eglinton “the costs clause dealt clearly and expressly with both the costs incurred in negotiating the contract and the costs of any future arbitration,” whereas the clause before him had been held by the arbitrator to deal only with the former, a decision that was “not open for challenge” on an enforcement application.

A clause adopting the Rules for the conduct of the arbitration does not import the court’s costs regime. In Schickedanz, the agreement provided that the Rules “(by analogy, as appropriate)” would govern the arbitration (¶ 8), and the arbitrator held that the clause “referred to how the Arbitration would be conducted by the parties and the Arbitrator, and did not mean that costs would be governed by Rule 57 of the Rules of Civil Procedure and the case law under that rule” (¶ 58); Vermette J. held at ¶ 59 that “it was open to the Arbitrator to interpret the Arbitration Agreement in the way that he did.” By contrast, a clause that speaks to costs in terms, like the clause in Pagliaroli quoted above or the “prevailing party” clause in Best Buy, will be applied according to its terms. A clause about the costs of court proceedings is confined to court proceedings; in Taseko, a provision that appeal costs “shall be awarded on a substantial indemnity basis” related, “by definition, only to court proceedings, not to the arbitration itself” (¶ 115). The agreement can also be varied by conduct; in Rosenfeld, the shareholders’ agreement provided that the arbitrator’s expenses would be borne equally, but the correspondence by which counsel agreed to proceed to arbitration left “any determination with respect to costs (including costs of the arbitration and counsel fees)” to the arbitrator, and the award of costs against the applicant stood (¶¶ 13, 15).

The lessons for drafting are plain. A party that wants the court’s partial indemnity regime should adopt the Rules for costs in terms, as the parties in Pagliaroli did. A party that wants the arbitral norm of reasonable legal fees in full can rely on s. 54 as Schickedanz reads it, but is better served by a clause that says so. A party that wants costs to be shared regardless of outcome must say what is to be shared, since “costs of the arbitration” has been read in Metro to mean the tribunal’s fees alone and in Simcoe and Yonge-Eglinton to take in the parties’ legal costs as well, and must accept that the clause will be enforced against it when it wins, as the applicant in Simcoe learned. A party that wants the costs of a pre-arbitration mediation or negotiation step to be recoverable must include them expressly in light of Weinstein.

The tribunal’s fees, advances and security for costs

The Act regulates the arbitrator’s own account separately from the allocation of costs between the parties. Section 55 provides that “[t]he fees and expenses paid to an arbitrator shall not exceed the fair value of the services performed and the necessary and reasonable expenses actually incurred.” Section 56(1) provides that “[a] party to an arbitration may have an arbitrator’s account for fees and expenses assessed by an assessment officer in the same manner as a solicitor’s bill under the Solicitors Act,” R.S.O. 1990, c. S.15, and s. 56(4) adds that the subsection “applies even if the account has been paid.” Section 56(2) allows a party to have the costs assessed by an assessment officer “in the same manner as costs under the rules of court” where the tribunal awards costs and directs an assessment, or “awards costs without fixing the amount or indicating how it is to be ascertained,” and s. 56(3) applies the principles of a solicitor’s assessment to the part of the costs represented by the tribunal’s fees. Under ss. 56(5) and (6), the court may review the assessment on the application of a party or of the arbitrator and “may confirm the assessment, vary it, set it aside or remit it to the assessment officer with directions”; under s. 56(7), the application for review must be made within the period specified in the assessment officer’s certificate or, if none, within thirty (30) days of the certificate, unless the court orders otherwise; and under s. 56(8), once that period has passed or the court has ruled, “the certificate may be filed with the court and enforced as if it were a judgment of the court.”

Assessments of an arbitrator’s account are rare, and the one reported decision shows how the standard works. In Cohen Highley Vogel & Dawson v. Bon Appetit Restaurant (1999), 44 O.R. (3d) 731 (S.C.J.), the arbitrator’s award fixing the rent under a lease had been set aside on appeal for errors that took him outside his jurisdiction, and the assessment officer assessed his account at nil on the footing that the arbitration had been of no benefit to the parties. Kennedy J. allowed the arbitrator’s appeal, holding that an assessment of an arbitrator’s account is subject to the same standard of review as the assessment of a solicitor’s bill, that “there must be an error in principle for the court to overturn the assessment, and that a grossly large or minute assessment may indicate such an error,” that although there may be cases where no remuneration is warranted “the courts should be exceedingly reluctant to find such a case,” since “[t]o do otherwise would cause confusion and instability in the entire arbitration process,” and that “there must be negligence found to support a reduction of fees.” The arbitrator had made “serious errors” but “was not negligent,” and the account was varied to the full amount claimed. In Abittan, Myers J. noted at ¶ 20 that the respondent “had an opportunity to assess the Arbitrator’s fees under s.56 (1) of the statute and did not take it,” and that whether she could still do so was “a matter for a different proceeding”; the point is that the assessment is a separate process from the challenge to the costs award and should be pursued on its own timetable.

The tribunal can require its fees to be advanced. In Santen v. Tarasenko, [2009] O.J. No. 699 (S.C.J.), the arbitrator had directed the parties to advance his fees equally, and the respondents refused until their objection to the commencement of the arbitration had been decided. Campbell J. held at ¶ 5 that “[t]he Court has the authority to intervene to ensure that the arbitration proceeds,” at ¶ 8 that “it would undermine the authority of the Arbitrator to determine process and put the Arbitrator at risk of non-payment of fees if in the absence of agreement between the parties, he was restrained from making the preliminary order that was made here until there was a contested motion on the issue,” and ordered each party to advance $17,500 “subject to any adjustment that might be made by the Arbitrator on motion to him after the said sums have been advanced by each party” (¶ 9). The consequence of not paying is illustrated by Ibrahim v. Koshi Bashi Inc., [2024] O.J. No. 4613 (S.C.J.), an enforcement application in which the arbitrator had circulated a consent interim order restraining dissipation “but the arbitrator did not sign the order because the respondents did not pay their arbitration fees” (¶ 10), with the result that the successful party had to seek equivalent relief from the court after the award.

The tribunal can also order security for costs, and such an order is not reviewable by the court while the arbitration is pending. In Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642 (“Inforica”), the arbitrator ordered the claimant to post $750,000 by letter of credit under the ADR Chambers rule allowing the arbitrator to “order any party to provide security for the legal or other costs of any other party” and under s. 20 of the Act, on the footing that costs are a procedural matter and so are orders made to ensure their payment (¶¶ 6-8). The Court of Appeal held that the order was not a ruling on the arbitrator’s “jurisdiction to conduct the arbitration” within s. 17(1), so that s. 17(8) did not apply (¶¶ 16, 28), and was not an “award” within s. 46(1), since “[m]atters relating to the conduct of the arbitration are not awards but, rather, are procedural orders and directions” (¶ 29). Sharpe J.A. described such orders at ¶ 24 as “made to protect the integrity of the dispute resolution process by preventing parties from structuring their affairs in a manner that immunizes them from the discipline of costs,” which “do not decide rights, but rather serve to ensure that parties are governed by the rules of the game.” The order was restored, and the party that had fought it paid $15,000 on the appeal and $25,000 below (¶ 42).

Interest on the award and on costs

Section 57 provides that “[s]ections 127 to 130 (prejudgment and postjudgment interest) of the Courts of Justice Act apply to an arbitration, with necessary modifications.” The effect, as Myers J. said in Abittan at ¶ 22, is that “[s]ection 57 of the statute authorizes awards to include prejudgment and postjudgment interest on the same basis as court orders,” and, as Smith J. said in 90 George Street at ¶ 100, that those sections of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), “apply to arbitration, with necessary modifications.” The Court of Appeal identified the sources of that jurisdiction in Toronto (City) v. Toronto Terminals Railway Co. (1999), 45 O.R. (3d) 481 (C.A.), at ¶ 25, stating, “arbitrators have the same jurisdiction to award interest as does a court,” and “like courts, arbitrators have three possible jurisdictional bases to award interest: by contract, under a statute, or in equity.” Where a contract or a by-law provides its own rate, the award proceeds under that right rather than under s. 128 of the CJA, as in 90 George Street at ¶ 105, where the interest awarded under the condominium’s by-laws was “pursuant to a right other than as provided for by s. 128.” Costs carry postjudgment interest in the same way as the principal sum; s. 129(1) of the CJA provides that “[m]oney owing under an order, including costs to be assessed or costs fixed by the court, bears interest at the postjudgment interest rate, calculated from the date of the order,” and the enforcement order in Kapahi Real Estate Inc. v. Elite Real Estate Club of Toronto Inc., 2026 ONSC 132 (“Kapahi”), discussed below, carried interest on the arbitral costs under the CJA (¶ 24).

Challenging a costs award by appeal

A costs award is an award, and the routes for challenging it are the routes in ss. 45 and 46 of the Act. Whether leave to appeal is needed depends on the agreement. Where the agreement provides for appeals, no leave is required to appeal costs alone, because s. 133(b) of the CJA, which requires leave “where the appeal is only as to costs that are in the discretion of the court that made the order for costs,” applies only to a court. That was the holding of Ramsay J. on the motion to quash in Schickedanz v. Wagema Holdings Ltd., 2022 ONSC 5315 (“Schickedanz (Quash)”), who stated at ¶ 19 that “the parties negotiated and agreed upon a broad appeal process, without carving out a leave requirement for costs,” and that “imposing a leave requirement to appeal costs would amount to judicial interference with the parties’ right to contract,” and of Vermette J. on the appeal, who held at ¶ 38 that “[b]y its clear language, subsection 133(b) of the CJA only applies to costs awards made by a court,” that s. 45 “does not draw a distinction between an appeal regarding the substantive disposition of the award and an appeal as to costs only,” and that the Act refers to other provisions of the CJA when it means them to apply, “see sections 45(6) and 57 of the Arbitration Act.” The same conclusion had been reached in Pagliaroli at ¶ 65, stating, “[g]iven the breadth of the arbitration agreement and s. 45(3) of the Arbitration Act, leave to appeal the issue of costs is not required,” and it has since been followed in Maxwell v. Maxwell, 2024 ONSC 4207, at ¶ 5, where Kristjanson J. found “that where the arbitration agreement itself does not require leave to appeal a costs award, leave is not required, largely for the reasons given by Ramsay, J.”

Where the agreement is silent, s. 45(1) governs, and the appellant needs leave on a question of law. In Bergmanis at ¶ 42, Chalmers J. held that the appellant’s “right of appeal is governed by s. 45(1) of the Act,” that it “may only appeal on questions of law with leave,” and that leave had not been sought, adding that he was “not satisfied that the Arbitrator’s decision on the costs award is an issue of law.” Where the agreement excludes appeals, no appeal lies at all; in Fogler, Rubinoff LLP v. Houle, 2021 ONSC 5626 (“Fogler”), Vermette J. noted in a footnote that the ADR Chambers rules incorporated in the agreement did “not allow an appeal on a question of law,” so that s. 45(1) could not be relied on, and in Metro, the exclusion of appeals on questions of law meant that the applicant “cannot successfully challenge the award solely on the grounds that the Arbitrator’s costs interpretation was wrong in law” (¶ 22).

The threshold difficulty on any costs appeal is finding a question of law. In Best Buy, Dietrich J. applied Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, to the arbitrator’s interpretation of the “prevailing party” clause and found “no evidence of the Arbitrator having applied an incorrect principle, or having failed to consider a relevant factor,” and so “no extricable question of law” (¶ 25). In Azurix, Rutherford J. held at ¶ 12 that any error in the arbitrator’s choice of the measure of success “must be an error of mixed fact and law because it is a question of what factors are most appropriate and applicable to the particular facts of the case,” and refused leave (¶ 13). In Fogler, the arbitrator’s departure from the usual costs paradigm on an assessment of a lawyer’s accounts, and his consideration of relative success and unproven allegations, were held at ¶¶ 23-24 not to be errors of law, since “[h]e did not exercise his discretion on wrong principles,” and Vermette J. observed at ¶ 27 that “[g]ranting leave to appeal in this case would not contribute to ensure the consistency of the law, but, rather, would only provide a new forum for the parties to continue their private litigation.” Dambrot J. said the same in a sentence in McAsphalt Marine Transport Ltd. v. Liberty International Canada, [2005] O.J. No. 1424 (S.C.J.), at ¶ 32, stating, “I see nothing in the discretionary exercise of the arbitrator’s authority to impose costs that raises a question of law.” The exception, drawn in Necrovore at ¶ 22, is the failure to apply a governing principle at all; “failure to decide in accordance with law is an error of law,” and an arbitrator who ignores the rule that costs follow the event commits one.

Once the appeal is properly before the court, the standard is the one that applies to a trial judge’s costs order. Vermette J. stated it in Schickedanz at ¶ 41, drawing on Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, at ¶ 27, as follows, “[a] court should set aside a costs award on appeal only if the decision-maker made an error in principle or if the costs award is plainly wrong,” adding that “[c]osts awards are notoriously difficult to appeal because they represent the decision-maker’s exercise of judgment as to the overall justice of the situation that they saw unfolding before them,” and that “the decision-maker at first instance is in the best position to determine the entitlement, scale and quantum of any such award.” Smith J. applied the same standard in 90 George Street at ¶ 111, Grace J. in Pagliaroli at ¶ 68, and Dietrich J. in Best Buy at ¶ 24, where the arbitrator “sits in the same position as a judge does in a lower court when his or her decision is appealed to a higher court.” Quantum alone will not found an appeal; as Vermette J. said in Schickedanz at ¶ 61, “the amount of a costs award by itself does not mean that the award is unreasonable or reflect an error in principle.”

Challenging a costs award by set-aside

The set-aside route under s. 46 is narrower still, and it is confined to the grounds the section lists. A party who argues that the arbitrator had no power to award the costs it awarded relies on s. 46(1)3, which allows the court to set aside an award that “contains a decision on a matter that is beyond the scope of the agreement.” In Fogler, the respondents to a $130,485 costs award made that argument, and Vermette J. rejected it at ¶¶ 9-12. Applying Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254, she held that “[j]urisdiction is determined not by asking whether the arbitrator made a correct decision, but by asking whether the arbitrator had the authority to make the inquiry that they made,” that “there is no doubt that the Arbitrator had the authority to determine the issue of costs,” that the factors he weighed “do not constitute separate questions, disputes or decisions,” and that “given that the issue of costs is within the scope of the arbitration agreement, the court has no authority to set aside the Costs Award or to review its substance.” In Nasjjec, the losing party framed its complaints as excess of jurisdiction and unequal treatment under s. 46 rather than as an appeal, which meant that no leave was required (¶ 108), but the complaints failed on the merits because the arbitrator “clearly had jurisdiction to deal with the issue of costs” (¶ 110) and the party had been heard on every point it raised (¶ 113).

The set-aside route succeeds where the arbitrator has done what the agreement forbids. Simcoe is the example; the agreement required equal sharing and the arbitrator’s success-based division was set aside. Metro shows the limit of the example; where the arbitrator has interpreted the costs clause and the parties have excluded appeals on questions of law, the applicant must show that the interpretation was “clearly wrong” before the award can be characterized as exceeding the arbitrator’s jurisdiction under s. 54(1) or as falling within s. 46(1)3 (¶¶ 22-23), and an interpretation that treats the clause as ambiguous and resolves the ambiguity on the evidence will not be. Ramsay J. added in Schickedanz (Quash) at ¶ 34 that “[t]he jurisprudence in Ontario establishes that no leave is required to appeal a costs award where the order is made without jurisdiction,” so that a true jurisdictional complaint can be brought either way.

Two (2) procedural points complete the picture. The time limit in s. 47 is thirty (30) days from receipt of the award for both an appeal and a set-aside application, and the court has no power to extend it; the authorities on that point are collected in our article on setting aside an arbitral award in Ontario. And a party dissatisfied with the quantum of a costs award should consider s. 44 and s. 56(2) before the court. In Italiano, the arbitrator accepted that he was functus on the scale of costs but “was open to reconsider his award on the issues of quantum of costs and their enforcement by way of payment as common expenses,” and McWatt J. agreed “that he was not functus on those issues” (¶ 48).

Enforcing a costs award

A costs award is enforced like any other award, by an application under s. 50, and the court’s role on that application is limited to the conditions in s. 50(3). In Fogler, the enforcement application and the set-aside application were heard together, and once the set-aside application failed Vermette J. held at ¶ 30 that “there is no valid ground to deny Fogler’s application to enforce the Costs Award,” and ordered payment of $130,485 (¶ 31). In Abittan, Myers J. enforced a costs award of about $46,000 against a respondent who had neither appealed nor applied to set it aside, holding at ¶ 21 that “a costs award is indeed a remedy which a court has jurisdiction to grant and would grant in a proceeding similar to this one” and that s. 50(7) therefore gave no basis to intervene, and that the respondent’s possible claims against the applicant were “not a basis to decline enforcement of the arbitral awards under the mandatory terms of s. 50 (3) of the statute” (¶ 23). In Jewish Foundation of Greater Toronto v. Joseph Lebovic Charitable Foundation, 2025 ONSC 5068, the costs award was recognized and enforced together with the jurisdiction decision, the main award and the damages award once the applications to set aside and appeal them were dismissed (¶¶ 139-140).

The costs award is part of the award, and it is not stayed by a pending application. In Canada Soccer Assn. Inc. v. Assn. de Soccer de Brossard, 2023 ONSC 4317 (“Canada Soccer”), the award debtor, having failed to obtain a stay pending its set-aside application, did not pay the costs of the arbitration, and the award creditor served a notice of garnishment on the debtor’s bank (¶ 2). The debtor moved to stop the garnishment, arguing by analogy to rule 63.01 that its notice of application stayed any collection. Bell J. held at ¶ 4 that the debtor “concedes that the arbitrator’s costs decision is part of the arbitral award,” so that “[e]nforcement of the Award includes enforcement of the costs decision,” and at ¶ 6 that “[a]n arbitration award is not subject to the stay provisions of the Rules of Civil Procedure,” since “there is no automatic stay pending the determination of an application” (¶ 7). The motion was dismissed and the bank was directed to pay the garnished funds to the creditor’s counsel in trust (¶¶ 10-11).

Where the award is made against several respondents, the costs are joint and several unless the tribunal says otherwise. In Kapahi, two (2) arbitral awards had been enforced by Steele J., whose order held the respondents jointly and severally liable for $62,291.94 in costs with interest running from December 23, 2024 (¶ 24), and one individual respondent later moved to vary the order so that the individuals would not be liable for the costs. Myers J. dismissed the motion, holding at ¶ 40 that the tribunal had held “the Respondents” liable and that Steele J. had been correct in law to treat that liability as joint and several, and at ¶ 36 that “[t]he place for those arguments was on appeal rather than by efforts to re-argue the case under the guise of correcting a slip or due to new facts.” The costs of the enforcement application itself, $27,000, were added (¶ 26). A costs award that is to be assessed is enforced through s. 56(8), under which the assessment officer’s certificate, once the time for review has passed, “may be filed with the court and enforced as if it were a judgment of the court.”

The costs of the court proceedings surrounding an arbitration

The costs of the court proceedings that surround an arbitration are governed by s. 131 of the CJA and rule 57, and the court applies its own principles to them even where the arbitration itself was conducted on different ones. Three (3) situations recur. The first is the application that succeeds in displacing the tribunal altogether. In Electek (Costs), the tribunal had made no costs award because the court had held on a de novo application that the parties had no arbitration agreement, and Perell J. fixed the costs of the arbitration hearing as well as the costs of the application, on a partial indemnity basis, at $300,000 and $125,000 respectively (¶ 5), reasoning that “[i]t was as reasonable and appropriate for Greenfield to submit the parties’ dispute to arbitration as it was reasonable and appropriate for Electek to challenge the arbitrator’s jurisdiction” (¶ 32). In Clost, by contrast, where the court had set aside the arbitrator’s preliminary ruling on jurisdiction after a de novo hearing under s. 17(8) and the applicant sought the costs of the jurisdiction motion before the arbitrator as well as of the application, Bell J. awarded substantial indemnity costs because the respondents’ litigation conduct, which included altered documents and evidence that “evolved over time and was revisionist in nature,” was “worthy of sanction” (¶ 11), applying the two (2) circumstances in which Davies v. Clarington (Municipality), 2009 ONCA 722, permits costs above the partial indemnity scale (¶¶ 7, 9).

The second situation is the application to set aside, appeal or enforce an award. The costs of those applications follow the ordinary rules of the court. In the costs endorsement in Ibrahim, 2024 ONSC 5218, Stewart J. held that the arbitrator’s findings about the respondents’ conduct in the arbitration could not raise the scale of costs on the court motion, since “costs for the arbitration have already been ordered,” and fixed partial indemnity costs of $4,500 on divided success (¶¶ 11-14). In the costs decision in Fogler, 2021 ONSC 6064, Vermette J. refused substantial indemnity costs to the successful law firm at ¶ 8 on the basis that “[h]ard-fought litigation is insufficient to justify an elevated costs award,” and, because the firm had acted for itself without evidence of lost opportunity, awarded only nominal costs of $5,525.47 (¶¶ 11-12). The sums in the other cases discussed in this article are modest by comparison with the costs of the arbitrations themselves; the parties in Best Buy agreed on $25,000 (¶ 26), the unsuccessful applicant in Azurix paid $3,500 (¶ 14), the unsuccessful applicant in Rosenfeld paid $9,000 for two (2) applications (¶ 17), the party that lost in Inforica paid $15,000 and $25,000 (¶ 42), and the Court of Appeal in Weinstein refused leave with “[n]o costs” (¶ 4).

The third situation is the stay motion and the urgent motion in aid of the arbitration, which are dealt with in our articles on staying a court action in favour of arbitration in Ontario and on interim measures in aid of arbitration in Ontario. In each of those situations, the party seeking costs above the partial indemnity scale in court must bring itself within Davies; an arbitration conducted on the full indemnity norm does not carry that norm into the courtroom.

Practical considerations

Five (5) points decide most costs disputes, and all of them arise before the award.

The first is the agreement. The costs clause should say whether the arbitrator is to award costs at all, on what measure, whether offers to settle are to have rule 49 consequences, whether the costs of any prior mediation or negotiation step are recoverable, how the tribunal’s fees are to be advanced, and whether the arbitrator may order security for costs. Each of those questions has been litigated to the Superior Court and beyond because a clause was silent or ambiguous, and each can be answered in a sentence when the clause is drafted.

The second is the offer. An offer under s. 54(5) should be made early, in writing, on terms the tribunal can compare with the award, and should remain open until the hearing begins. It should be served on the other party and kept from the tribunal until the award on the merits, as s. 54(6) requires, and the party making it should ask at the outset that costs be reserved for written submissions after the award. An offer made the day before the hearing, as in Pagliaroli, or for a tactical sum, as in Nasjjec, will be given little weight.

The third is the record of costs. The arbitrator will be asked to assess reasonableness, and the party seeking costs should be able to show dockets that separate the arbitration from other matters, the jurisdictional phase from the merits, and lawyer time from client time. The deductions in Nasjjec for an expert’s corrective work and for time spent on matters outside the arbitration, the separate accounting in Electek (Costs) for the fees attributable to the jurisdictional issue, and the scrutiny of the litigation-support retainer in Schickedanz all show what the tribunal will look for.

The fourth is the costs submission itself. Whether or not the agreement adopts the Rules, a submission organized around the result, the offers, the factors in rule 57.01 by analogy, the reasonable expectations of the unsuccessful party and the proportionality of the claim to the amounts at stake gives the arbitrator the materials to exercise the discretion judicially and gives the award the best protection on review. A party seeking its full legal expenses should cite Schickedanz and Taseko; a party resisting should cite Electek (Costs) and, if the agreement adopts the court’s scale, Pagliaroli.

The fifth is the calendar after the award. A party who receives an award silent on costs has thirty (30) days under s. 54(3) to request a further award. A party who wants the arbitrator’s account assessed should start the s. 56(1) assessment promptly and separately from any challenge to the award. A party who wants to appeal or set aside the costs award has thirty (30) days under s. 47, which cannot be extended, and should check the agreement for the appeal clause before deciding whether leave is needed. And a party who holds a costs award should move under s. 50 as soon as the thirty (30) days have run, since, as Canada Soccer shows, nothing stays the award in the meantime.

How we can help

Grigoras Law acts as counsel in commercial arbitrations seated in Toronto, in shareholder, partnership, contract, lease, franchise and fraud disputes, and in the court proceedings that surround them. We draft and negotiate the costs provisions of arbitration agreements, make and respond to offers to settle under s. 54(5), prepare costs submissions and bills of costs for the tribunal, pursue and resist the assessment of arbitrators’ accounts under s. 56, bring and defend appeals and applications to set aside costs awards under ss. 45 and 46, and enforce costs awards under s. 50, including by garnishment and examination in aid of execution. Our arbitration practice and our commercial litigation practice are described on the pages linked here, and our shareholder disputes practice covers the buy/sell, oppression and management disputes in which the costs of an arbitration are most often fought over. Our articles on staying a court action in favour of arbitration in Ontario, on arbitrating a shareholder dispute in Ontario, on evidence in a commercial arbitration in Ontario, on interim measures in aid of arbitration in Ontario, on setting aside an arbitral award in Ontario, on appealing an arbitral award in Ontario and on enforcing an arbitral award in Ontario take the dispute from the stay motion to the award and its enforcement.

This article is general information about the law of Ontario as of October 2026 and is not legal advice. The costs of an arbitration depend on the arbitration agreement, the offers made, the conduct of the parties and the arbitrator’s exercise of discretion, and the authorities cited should be read in full before they are relied on.