“Subsections 45(2) and 45(3) of the Arbitration Act provide that an appeal of a final family arbitration award lies to the Family Court (in those areas where it has jurisdiction) or otherwise to the Superior Court of Justice. Leave is not required.
The court raised the issue of whether leave was required to appeal the costs award, considering the decision in Flowers v. Eickmeier, 2017 ONSC 3376. Justice Di Luca held that section 133(b) of the Courts of Justice Act requires that leave be granted where an appeal is only as to costs, and section 45 of the Arbitration Act does not specifically address the issue of leave to appeal in relation to a costs award. He found that leave was required to appeal an arbitral cost award to the court.
I find 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. in Schickedanz v. Wagema Holdings Ltd., 2022 ONSC 5315, at paras. 12-25. Imposing a leave requirement to appeal costs amounts to judicial interference with the parties’ right to contract. It is also not consistent with the text, context, and purpose of the two governing statutes.
Section 133(b) of the Courts of Justice Act applies only to courts and requires leave where the appeal is “only as to costs that are in the discretion of the court that made the order for costs.” There is no reference to appeals from arbitrators. There are detailed appeal provisions in the Arbitration Act, which allow for appeals on questions of law, fact, and mixed fact and law, all without leave if the parties agree. There is no equivalent to the restriction set out in s. 133(b) of the Courts of Justice Act. Leave is not required for costs appeals under the Arbitration Act.”