The Applicant sought leave to appeal an Arbitrator’s Decision and costs award. By section 44(2) of the Arbitration Act, RSA 2000, c A-43, an appeal was restricted to questions of law. The Court noted that the Applicant did not identify a discrete question of law relating to the costs award but did have several criticisms.

The Applicant acknowledged that costs are discretionary and that the discretion must be exercised judicially and in accordance with the directions and factors set out in Rules 10.31 and 10.33 of the Alberta Rules of Court, Alta Reg 124/2010.

The Court noted that awarding costs will generally be a question of mixed fact and law and that “only in narrow circumstances, where an arbitrator applies extraneous factors outside of the matter referred for arbitration, will the costs decision be converted to a question of law”.

None of the criticisms raised by the Applicant were outside of the matter referred for Arbitration and all matters complained of were within the discretion of the Arbitrator.

The proposed appeal question, being one of mixed fact and law, was impermissible and leave to Appeal was denied.