This Costs Endorsement dealt with the question of whether Costs should be ordered after cancellation of a Judicial Dispute Resolution (“JDR”). The JDR was canceled due to availability issues, and the Parties ultimately decided to proceed with a private Arbitration. The Applicant requested Costs amounting to $15,000 for the canceled JDR.

The Court acknowledged that Costs are not typically awarded in a dispute resolution process. However, the Applicant argued that they should be permitted under Rule 10.31(2)(c), which allows for Costs in cases of serious misconduct. The Applicant pointed out that Costs were warranted, especially since the Court had offered alternative JDR dates, all of which were refused by the Respondent.

In considering Rule 10.29, 10.31, and 10.33, the Court stated that a successful party in an Application, proceeding, or Action is generally entitled to a Costs Award against the unsuccessful party. The Court also noted that the determination of Cost Awards is within the general discretion of the Courts.

The Court placed emphasis on Rule 10.31(2)(c), highlighting that dispute resolution Costs are only awarded if a party engages in serious misconduct during the dispute resolution process or the judicial dispute resolution process.

Justice Loparco reviewed relevant case law and concluded that, given the Respondent's attempts to reschedule and payment of the Arbitrator's retainer, this case did not involve the level of misconduct necessary to warrant a Costs Award under Rule 10.31(2)(c). The Court determined that, since the parties had agreed to a private dispute resolution process, any Costs Award would be at the sole discretion of the Arbitrator, including any Costs related to the Arbitration.