Court File and Parties
Court File No.: CV-21-00666823-0000 Date: 2022-02-17 Ontario Superior Court of Justice
Between: Alberta Cricket Association, Applicant - and - Alberta Cricket Council and Cricket Canada, Respondents
Counsel: Carlos Sayao, for the Applicant Tahir A. Chaudhary, for the Respondent Alberta Cricket Council
Heard: In writing
Perell, J.
Reasons for Decision - Costs
[1] The Applicant, Alberta Cricket Association (the “Association”) brought an application to set aside the arbitration awards of an arbitrator of the Sport Dispute Resolution Centre of Canada. The arbitral award was made in a dispute between the Association, and the Respondent, the Alberta Cricket Council (the “Council’). I granted the Association’s application. I set aside the arbitrator’s awards. I directed a new arbitration be conducted by a new arbitrator in accordance with the Sport Dispute Resolution Code. Alberta Cricket Association v. Alberta Cricket Council, 2021 ONSC 8451
[2] The Association seeks an award of costs on a partial indemnity basis of $32,033.31, which is inclusive of legal fees of $26,633.40, disbursements of $1,741.01, plus applicable taxes. The Association also asks that I remit the costs of the original arbitration to a new arbitrator.
[3] The Council submits, however, that the Association’s costs claim is excessive, and it submits that the appropriate costs award should be $3,000, all inclusive.
[4] In its primary submission, the Council argues that in the circumstances of the immediate case, the parties should bear their own costs. In this regard, the Council’s submissions are as follows:
Parties to bear their own costs
In its decision, this Court stated that the ACA sought to overturn the arbitrator's award "on a multitude of grounds". Ultimately, the Court granted the ACA's application on the narrow issue pursuant to Section 38(1) of the Arbitration Act, 1991 (the "Act"), in that the Arbitrator's award did not state the reasons upon which it was based. This Court's decision was not granted on the merits and the arbitration was ordered restarted before a different Arbitrator. Had the Arbitrator's award complied with Section 38(1), the result of this Appeal may well have been different on the merits. Fundamentally, this Honourable Court decided at paragraph 54 of its decision that "the Arbitrator's written reasons were inadequate and did not provide an explanation". This alone is what determined the ACA's Appeal.
To, in effect, punish the ACC because the Arbitrator ultimately failed to comply with the Act, would, with the utmost respect and deference, be unjust. In Fantl v. Transamerica Life Canada, 2009 ONSC 65822, this Honourable Court ordered that the parties in that matter bear their own costs, because "awarding costs to either would be to make an award that cannot be easily justified as satisfying the usual purposes of a costs award" (at para. 16).
The length and extent of this hearing was avoidable and unnecessary based on how this Honourable Court decided this Appeal. To levy a costs award in the amount sought by the ACA would unduly prejudice the ACC, especially considering the number of issues that the ACA brought forth, which were ultimately not considered by this Honourable Court in arriving at its decision. A significant portion of the ACA's Factum and argument was entrenched in the merits of the Arbitrator's procedure and the grounds of the ultimate award.
[5] I do not agree with the Council that the Association’s costs are excessive.
[6] I also do not agree with the Council’s argument for no order as to costs. The argument does not withstand analysis. The Association was the successful appellant. The normal costs principles apply.
[7] When an appellant is successful, it is always the case that it will have demonstrated that the first instance adjudicator (in this case, the Arbitrator) made one (or more) substantive or procedure errors. It is not a punishment against the respondent on the appeal and it is not unjust to award costs to the successful party when it succeeds on only one of the grounds of appeal. Costs awards are not distributive of the issues decided on the appeal. The respondent was unsuccessful in demonstrating that the adjudicator below did not make a reversible error and costs follow the result.
[8] The length and extent of the hearing before me was not avoidable and unnecessary based on how I decided the appeal. The appeal was well argued by both sides and there was a voluminous record. There is no foretelling which of the grounds of an appeal, if any, will succeed.
[9] I, therefore, award the Association costs of $32,033.31 all inclusive. The costs of the original arbitration are remitted to the new arbitrator.
Perell, J. Released: February 17, 2022