Owen D. Bourns

The respondents were completely successful on an appeal, an application for judicial review, and an application to set aside an arbitrator's decision.

They sought partial indemnity costs of $22,651 plus disbursements and HST.

The applicants argued the amount was disproportionate and opposed joint and several liability.

The court fixed costs at $20,000 plus $1,000 in disbursements plus HST, payable jointly and severally by the applicants, noting the complexity of the proceedings and the arbitrator's finding that the applicants had committed the tort of deceit together.

The applicants sought to appeal and judicially review an arbitrator's decision finding them personally liable for the tort of deceit in a real estate venture.

They argued the arbitrator lacked jurisdiction over them personally as they had not signed the arbitration agreement in their personal capacities.

The Divisional Court dismissed the applications, finding the applicants had agreed to arbitration by their conduct, including obtaining a prior court order referring the claims to arbitration, and had waived any jurisdictional objections by participating without complaint.

The court also held that judicial review is unavailable for private commercial arbitrations and that the arbitration agreement's 'final and binding' clause precluded any appeal.