SNC-LAVALIN INC. APPLICANT - v. -, 2022 SKKB 242

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 242 Date: 2022 11 07 Docket: QBG-RG-01795-2020 Judicial Centre : Regina BETWEEN: SNC-LAVALIN INC. APPLICANT - and - SASKATCHEWAN POWER CORPORATION RESPONDENT Counsel: Peter D. Banks, Rodney A. Smith, Taylor Kemp and Francesca Maio for the applicant Leonard D. Andrychuk, K.C. and Bennet Misskey for the respondent FIAT KLATT J.

NOVEMBER 7, 2022 OVERVIEW [ 1 ] The applicant, SNC-Lavalin Inc. [SLI], and the respondent, Saskatchewan Power Corporation [SaskPower], entered into three contracts for the construction and cold commissioning of three carbon capture plants critical to SaskPower’s Integrated Carbon Capture and Sequestration Demonstration Project.

The contracts provided that disputes arising from them would be determined through mandatory arbitration and set out provisions empowering the arbitration tribunal to award costs. [ 2 ] Disputes arose and a tribunal [Tribunal] was constituted under The Arbitration Act, 1992 , SS 1992, c A-24.1 [ Act ] to dispose of the disputes.

Following an extensive and complex evidentiary hearing on the merits of the issues in dispute, the Tribunal provided a lengthy procedural order [PO #9] outlining the scope and content of the parties’ costs submissions and directing that the parties make their submissions as if they were “a prevailing party”.

The Tribunal further directed that after the deadline for filing costs submissions passed, a party could request an opportunity to further address the costs issue after receiving the other side’s submissions but before the final award was issued. [ 3 ] The parties filed their written submissions and neither sought a further opportunity to address the issue of costs as was permitted in PO #9. [ 4 ] The Tribunal found, in part, that SaskPower had been successful on its cold commissioning claim that it said occupied much of the arbitration.

Additionally, it found in favour of SaskPower for many of its claims for warranty work and deficiency correction. The Tribunal found in favour of SLI for many of its invoice claims that the Tribunal said did not require much evidence. There was mixed success on other claims. As a result of its findings, the Tribunal awarded net costs against SLI in the amount of $18,600,000 in favour of SaskPower.

[ 5 ] After the Tribunal rendered its decision, SLI wrote to the Tribunal seeking another chance to address the issue of costs in light of the parties’ “mixed success”.

The Tribunal replied that it was functus officio and did not have jurisdiction to hear further submissions. [ 6 ] SLI applies to have the order set aside under s. 46(1) of the Act , arguing that the Tribunal acted in a procedurally unfair manner by refusing to allow it to provide further submissions. [ 7 ] SaskPower argues that the parties had every opportunity to make their submissions, even after reviewing the other party’s costs submissions. [ 8 ] For the following reasons, I find that there was no breach of procedural fairness and the application is dismissed. BACKGROUND 1.

The Relevant Contractual Terms [ 9 ] The three contracts entered into by the parties contained identical dispute resolution provisions that set out the mandatory arbitration process, including stipulations as to the Tribunal’s power to award costs. For example, in the Engineering Procurement, Construction and Related Services Agreement between the parties, paras. 5(

g) and (

h) of

Schedule 10 state: (

g) The decision of the arbitrator(s): (

a) will be final and binding on the parties as to the questions submitted to arbitration; and (

b) may be enforced in any court of competent jurisdiction. Neither party has any right to appeal from, nor request judicial review of, any decision of the arbitrator(

s) on any grounds, including error on a question of fact or law or on a question of mixed fact and law, and

section 45 of The Arbitration Act (Saskatchewan) shall not apply. (

h) In exercising discretion to award costs of the arbitration pursuant to

section 54 of The Arbitration Act, 1992 (Saskatchewan) , the arbitrator(

s) shall consider whether a party was substantially successful in its claims or defences in the arbitration. For greater certainty, expenses included in the cost of the arbitration pursuant to subsection 54(2) of The Arbitration Act, 1992 (Saskatchewan) shall include a party’s reasonable expenses for expert witnesses and consulting experts. 2. Procedural Order #9 [ 10 ] The Tribunal consisted of three panel members who had expertise in complex, large-scale construction arbitrations.

The arbitration itself was complex with SaskPower asserting 191 claims in 35 claim categories and SLI asserting 65 claims. [ 11 ] Sometime after the conclusion of the hearing on the merits, the Tribunal convened a teleconference with the parties to deal with procedural matters for the next steps in the process. The parties agreed on several procedural matters including those relating to costs submissions. The Tribunal issued PO #9, a lengthy procedural order that set out the parties’ agreement and provided guidance to them as to the scope of their submissions. PO #9 states, in part: 23.

As agreed by the parties, the Tribunal will award costs to the extent that the Tribunal considers the costs claimed are reasonable and proportionate. 24. The parties sought guidance from the Tribunal as to the format and content of their submissions on costs. … 28. Upon further discussion, the parties and Tribunal agreed as follows, and the Tribunal so orders:

a) Submissions on costs would be limited to the principles for the award of costs and apportionment of costs in this case, including entitlement, scale and quantum… …

c) Submissions on costs would be received by the Tribunal in writing only, with no oral submissions.

d) No further submissions on costs will be made after 18 October 2019 unless either party, after receiving the bill of costs and submissions of the other party, specifically requests an opportunity to further address costs before the final award is issued, in which case the Tribunal will issue an interim award, receive further submissions on costs, and render its final award. 29. To assist the parties in their submissions, the Tribunal provides the following guidelines:

a) The Tribunal will receive cost submissions from the parties as scheduled, and will rule on liability and quantum of costs in its final Award in this matter, without receiving detailed, itemized Bills of Costs from the parties. Each party will make costs submissions on the issue of liability for costs on the premise that they are a prevailing party. … 30. The matters the parties choose to address in their written submissions on costs are up to them, but the Tribunal would like the parties to consider addressing the following points among whatever other points they may wish to raise: …

d) the overall importance of the issue or dispute and complexity of the matter, including amount claimed, and any unnecessary and

meritless claims or counterclaims and the withdrawal of any unmeritorious claims in a timely manner; … 40. With regard to submissions on costs of the arbitration:

a) Submissions must be limited to the principles for the award of costs and apportionment of costs in this case, including entitlement, scale and quantum … …

c) Submissions on costs will be received by the Tribunal in writing only, with no oral submissions.

d) No further submissions on costs will be made after 18 October 2019 unless either party, after receiving the bill of costs and submissions of the other party, specifically requests an opportunity to further address costs before the final award is issued, in which case the Tribunal will issue an interim award, receive further submissions on costs, and render its final award. 3. The Parties’ Costs Submissions [ 12 ] The parties filed their respective submissions on costs. [ 13 ] SLI acknowledged the Tribunal’s discretion to award costs it considered to be appropriate.

However, it did not address the issue of costs as if it were “a prevailing party” or the party that achieved “substantial success”. It did not make submissions on what it considered those terms to mean in the context of this multi-claim action. SLI did deal with the relative success of the parties with respect to the various procedural orders and pre-arbitration hearing applications. [ 14 ] In their submissions, SaskPower addressed the issue of the meaning of “substantial success” (see paras. 37-42 of SaskPower’s Costs Submissions).

SaskPower pointed out that an assessment of full or near-full indemnity of solicitor-client costs would depend on many factors including the degree of success, the importance of the issues on which success was achieved, and the complexity and number of issues involved. [ 15 ] SaskPower addressed the issues of entitlement and quantum, making submissions relating to the definition of “prevailing party” (as contained in PO #9) and why it believed it, not SLI, had achieved “substantial success” as referred to in their contracts.

SaskPower offered submissions as to why it should be awarded full or near-full indemnity on some claims, based on the importance of them. In particular, SaskPower referred to the core issues of which party had been responsible for delays and whether SLI had completed its cold commissioning obligations. [ 16 ] In July 2020, nearly nine months after the parties exchanged their submissions on costs, the Tribunal sent a letter to the parties advising that it was completing the final award, noting that neither party had requested an opportunity to file additional or further submissions.

The Tribunal then stated that in accordance with the agreed upon PO #9, it would award costs based on the submissions received from the parties on October 18, 2019. [ 17 ] Neither party requested an opportunity to file additional submissions on costs after receiving the submissions of the opposing side. They had almost a year within which to do so before the Tribunal rendered its decision. 4. The Tribunal’s Final Award [ 18 ] At para. 3022 of the final award, the Tribunal posed the question as to whether either party was “substantially successful” and referred to the following factors:

a) SaskPower was successful on its cold commissioning claim, which occupied, one way or another, much of the time spent in this arbitration;

b) SaskPower was successful in whole or in

part in a substantial number of its Updated Scott

Schedule claims for warranty work and deficiency correction and allowed a substantial amount for these claims;

c) SaskPower was only partly successful on the process design (chemistry) issues, where success was divided;

d) The Tribunal has found that the Limits of Liability apply under the Three Contracts as argued by SLI, which limit the amount of recoverable by SaskPower;

e) SLI was successful in many of its invoice claims (proof of which generally did not require much evidence, apart from that tendered on other issues), but failed to prove the delay-related claims. [ 19 ] The Tribunal went on to say that, in its view, success was divided. The Tribunal, in the end, granted a net costs award of $18,600,000 in favour of SaskPower after set-off was applied. ISSUES [ 20 ] SLI says the first issue to be decided is whether the court has jurisdiction under s. 46 of the Act to set aside the costs award.

SaskPower concedes that under s. 46(f), the court has jurisdiction to set aside a costs award on grounds that a party was not treated equally and fairly or was not given an opportunity to present a case or to respond to another party’s case. I accept that I have the jurisdiction to set aside the award if I find there was a breach of procedural fairness depriving SLI of its right to be heard.

[ 21 ] The parties agree that the issues are: 1. Did the Tribunal breach its duty of procedural fairness when it denied SLI an opportunity to make further submissions after rendering its decision on the final award? 2. If so, what is the appropriate remedy? ANALYSIS Standard of Review [ 22 ] The parties do not agree on the standard of review. SLI states that the question of whether a party was afforded procedural fairness is decided on a correctness standard and no deference is owed to the Tribunal. SaskPower says the standard is reasonableness.

Although my conclusion would be the same no matter the test, I agree with SLI that the applicable standard is one of correctness, although it requires a more nuanced examination of what is fair.

I will explain. [ 23 ] In Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at paras 16-17 and 23 , [2019] 4 SCR 653 [ Vavilov ], the Supreme Court clarified that for judicial review of the merits of an administrative decision ( i.e. , judicial review of an administrative decision other than a review related to a breach of natural justice and/or the duty of procedural fairness), there is a presumption that the standard of review be one of reasonableness.

The standard can be rebutted where it is clear the legislature intended a different standard to apply or where the rule of law requires it ( i.e. , questions of constitutionality, on jurisdictional boundaries between administrative bodies or general questions of law important to the legal system as a whole). [ 24 ] It seems to be well-established that the judicial review of procedural fairness issues is undertaken without deference to the choices made by an administrative tribunal, commonly referred to as a correctness standard: Mission Institution v Khela , 2014 SCC 24 at para 79 , [2014] 1 SCR 502; Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 at para 43 , [2009] 1 SCR 339 ; Eagle’s Nest Youth Ranch Inc. v Corman Park (Rural Municipality #344) , 2016 SKCA 20 at para 25 , 476 Sask R 18 [ Eagle’s Nest ]; Murray Purcha & Son Ltd. v Barriere (District) , 2019 BCCA 4 , [2019] 9 WWR 252. [ 25 ] And recently, the Supreme Court clarified that where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review: Law Society of Saskatchewan v Abrametz, 2022 SCC 29 at para 27 , 470 DLR (4 th ) 328.

In doing so, the Supreme Court categorically confirmed its stance taken in Vavilov that when the legislature provides for a statutory appeal mechanism from an administrative decision maker to a court, appellate standards are to apply ( Vavilov at paras 33 and 36-52 ).

On a question of law, the standard of review is correctness. [ 26 ] Regarding deference, in para. 86 of his dissenting reasons in Eagle’s Nest , Richards C.J.S. observed that it does indeed come into play in some procedural fairness questions (see also the separate reasons of Stratas J. in Maritime Broadcasting System Limited v Canadian Media Guild , 2014 FCA 59 , 373 DLR (4 th ) 167). In Eagle’s Nest , it was unnecessary to dive into a deep analysis of the role of deference in order to dispose of the appeal.

However, Richards C.J.S. said, in obiter , that he did not want to foreclose the possibility of considering whether there might be procedural fairness issues that should be reviewed using something other than a strict “correctness” standard of review. [ 27 ] Other courts have also questioned the appropriateness of an “either correctness or reasonableness” standard of review analysis when determining procedural fairness questions ( i.e. , Eagle’s Nest , Moreau-Bérubé v New Brunswick (Judicial Council) , 2002 SCC 11 at para 74 , [2002] 1 SCR 249). [ 28 ] Similarly, in ENMAX Energy Corporation v TransAlta Generation Partnership , 2022 ABCA 206 at paras 24-25 , the Court of Appeal observed that deference is owed to an arbitrator’s procedural choices, subject to the broad requirement that the procedure is fair and that each party has an opportunity to present its case and respond to that of the other side.

The Court of Appeal upheld the decision of the chambers judge who had found that the standard of review for the fairness of arbitral proceedings was neither correctness nor reasonableness (See: ENMAX Energy Corporation v TransAlta Generation Partnership , 2019 ABQB 486 para 76 , [2020] 9 WWR 266). [ 29 ] In Freedman v Freedman Holdings Inc. , 2020 ONSC 2692 , the chambers judge was tasked with determining the appropriate standard of review in an application to set aside an arbitral award on grounds including, inter alia , breaches of procedural fairness.

Like here, the parties entered into a contract that provided for binding arbitration and contained a privative clause. The chambers judge referred to the creation in Vavilov of a presumption of reasonableness that could be rebutted in limited circumstances, none of which he said applied to the issue of whether the applicant was afforded procedural fairness. Thus, he concluded that the standard of review was reasonableness.

With respect, I disagree with that conclusion. [ 30 ] While it is significant that the application before me was neither a judicial review of a statutory decision- maker’s decision nor a statutory appeal, the Act contemplates that a certain degree of procedural fairness will be afforded to the parties during the arbitration process.

I find it difficult to conclude that, depending on the mechanism used to pursue a review, a different standard of review ought to apply for the same questions of procedural fairness. [ 31 ] I join in the lament other courts have expressed over the need to choose either correctness or reasonableness for all questions relating to procedural fairness. Neither seems a perfect fit. The question as to whether there was a procedural flaw that made the process unfair comes down to one question: was the process fair or not?

In my view, the standard of correctness, not reasonableness, better responds to the question. [ 32 ] Accordingly, the appropriate standard of review is correctness. On the facts of this case however, my decision would be the same no matter what standard of review I employed. Did the Tribunal breach its duty of procedural fairness when it denied SLI an opportunity to make further submissions after

rendering its decision on the final award? [33] The parties agree that the duty of procedural fairness includes the right to be heard and respond to thesubmissions made by the opposing party. SLI argues that it was denied the opportunity to make full submissions on costs after theTribunal rendered its decision. SaskPower counters that SLI was given the same opportunities it had to address the issues of costs, evenafter the deadline for written submissions had passed.

For the following reasons, I find there was no breach of procedural fairness. [34] Specifically, SLI argues that it was denied the opportunity to make submissions on costs in a meaningful way,arguing essentially that had it known there would be divided success on the claims, it would have made different submissions.

It arguedsince the Tribunal found there was divided success, there was no prevailing party. [35] The requirements of procedural fairness are variable but generally have been said to include ensuring that: aparty has knowledge of the case to be met; participatory rights (being given a full opportunity to be heard and respond to the submissionsmade by the opposing party) have been met; adequate reasons for a decision were provided; the decision was rendered without unduedelay; and the decision was made in a procedurally fair manner by an impartial decision-maker: Baker v Canada (Minister of Citizenship & Immigration), (SCC), [1999] 2 SCR 817 [Baker]; Elchuk v Gulansky, 2019 SKQB 23 at para 32, 87 BLR (5th) 31. [36] While the Supreme Court in Baker helpfully identified non-exhaustive factors that assist in determining theextent of the duty of procedural fairness owed, the parties here agreed on their own the rules of engagement for the arbitration process.This included the right to make submissions respecting costs and the right to request an opportunity to respond to the submissions of theopposing party. [37] There are several facts that bear on the analysis of the extent of the participatory rights that the Tribunal had aduty to provide to the parties.

First, sometime after the hearing had concluded, the Tribunal convened a conference call with the parties todiscuss their submissions on costs. The discussions and agreements reached were embodied in PO #9 that mandated the parties file theircosts submissions by October 18, 2019.

Importantly, PO #9 also directed that the parties make their submissions on the premise theywere “a prevailing party” and to include submissions on “the overall importance of the issue or dispute and complexity of the matter,including amount claimed, and any unnecessary and meritless claims or counterclaims”. [38] In my view, each party was required to put their best foot forward, addressing costs on the various claims as ifthey were successful in either advancing or defending them and addressing the relative importance of the particular claims, not just tothem as a party but to the arbitration as a whole.

It was reasonable to expect that the parties would turn their minds to the

definitions of“substantial success” and “a prevailing party” in the context of this complex arbitration. [39] Secondly, PO #9 was unequivocal that if the parties wished another opportunity to address costs after receivingthe other side’s submissions, they only had to ask before the deadline of October 18, 2019.

The parties knew that if they did not seek tofile additional submissions, the Tribunal would rely solely on their initial submissions and the costs award would be issued with the finalaward. [40] On this latter point, SLI did not adequately explain why it did not seek to file additional submissions afterreceiving those of SaskPower. The submissions filed by SaskPower dealt head-on with its view of what it meant to be “a prevailingparty” and/or “substantially successful”.

In reviewing the submissions filed by both parties, I find it perplexing that SLI would not haveconsidered it reasonable, if not incumbent, to respond to SaskPower’s numerous submissions on these points.

Further, if SLI was undersome misapprehension or misunderstanding as to the nature or extent of the submissions required, it should have sought clarificationafter receiving SaskPower’s submissions. [41] Furthermore, in July 2019, the Tribunal reminded the parties since neither had requested an opportunity to filefurther submissions, it would be rendering its decision based on their written submissions filed by the deadline of October 18, 2019. Still,SLI did not seek to augment their submissions. [42] SLI says that neither party prevailed, relying on the Tribunal’s statement that success was divided.

It suggeststhat it approached the costs issues on the basis that it would be successful in defending SaskPower’s claims and advancing all its own.“Substantial success”, as the term implies, does not contemplate one party will be completely successful on all issues. This was a verycomplex arbitration with numerous claims and counterclaims. The parties are sophisticated litigants, very familiar with commercialconstruction contracts and litigation. I find it difficult to believe that SLI would not have anticipated anything less than full victory. [43] The term “divided success” does not mean equal success.

Just because a party is successful on some issues doesnot necessarily mean the other party will not prevail, in the end. Success will depend, in part, on how much time an issue consumed:Farmer v Farmer, 2022 ONSC 2410 at para 145. [44] The term “prevailing party” or “substantial success” does not mean the party who is successful on advancing allits claims and in defending those of the other side.

Substantial success can be based on a balanced assessment of the outcome and thenature of the final judgment: Kent v Kent, 2011 ABQB 611 at paras 6-7; Kon Construction Ltd. v Terranova Developments Ltd., 2014 ABQB 665 at para 13 [Kon Construction].

In Fotheringham v Fotheringham, 2001 BCSC 1321 at para 46, 13 CPC (5th) 302[Fotheringham], leave to appeal refused 2002 BCCA 454, the court suggested a four-step analysis to determine if a party achieved“substantial success”: (1) focus on the "matters in dispute" that may or may not include issues explicitly mentioned in the pleadings; (2)assess the weight or importance of the matters in dispute to the parties; (3) make a global determination of the matters in dispute anddetermine which party achieved “substantial success” overall, thereby winning the event; and (4) where one party “substantiallysucceeded”, consider whether there are reasons to depart from awarding the winning party his or her costs (see also: Cardero Coal Ltd. vCarbon Creek Partnership, 2022 BCSC 1103 at para 32). [45] It is not a simple mathematical exercise of determining which party has the highest percentage of successrelative to the claims it advanced: Kon Construction at para 12.

Apportioning costs based on “substantial success” is not an exact

science. The parameters set by the parties in their contracts and by mutual agreement with the Tribunal in PO #9 are similar in nature to those mentioned in the Fotheringham framework. It was within this general framework that the Tribunal, after hearing oral submissions on the claims and receiving written submissions on costs, had the discretion to determine who it considered to be a prevailing party.

In the end analysis, the Tribunal determined that SaskPower was a prevailing party based on its success on the issue that occupied much of the hearing. [ 46 ] SLI argues that since “a prevailing party” criterion of PO #9 never materialized, the Tribunal was obligated to invite further submissions from the parties on costs relative to their actual successes. In doing so, SLI likens the Tribunal’s conclusions to cases where arbitrators have raised new issues without giving the parties a chance to respond.

The Tribunal did not raise a new issue or base an award on a novel theory not raised or argued by the parties (as in Tall Ships Landing Devt. Inc. v City of Brockville , 2019 ONSC 6597 ). The parties agreed to the content of their costs submissions and had to know what was expected of them.

Put another way, the Tribunal made findings that were well within the reasonable contemplation of the parties. [ 47 ] To be clear, the procedures and directions in PO #9 required the parties to address all aspects of the claims, including the overall importance of the issue or dispute and complexity of the matter, the amounts claimed, and any unnecessary and meritless claims or counterclaims. In my view, SLI should have done what SaskPower did: address the meaning of substantial success, not absolute success. In adhering to PO #9, SaskPower addressed the issues as required by the Tribunal.

SLI’s failure to make the appropriate submissions and take up the opportunity afforded to it to make additional ones is not the Tribunal’s failing. [ 48 ] Even if SLI had made submissions like those of SaskPower, the Tribunal still had the jurisdiction and unfettered discretion to award costs based on its own assessment of which party was substantially successful. The parties understood and acknowledged this. [ 49 ] SLI argues that the Tribunal was not functus officio after rendering the final award because s. 44 of the Act empowers the Tribunal to hear further submissions.

Subsection 44(3) provides: 44(1) An arbitral tribunal may, on its own initiative within 30 days after making an award or at a party’s request made within 30 days after receiving the award: (

a) correct typographical errors, errors of calculation and similar errors in the award; or (

b) amend the award so as to correct an injustice caused by an oversight on the part of the arbitral tribunal.

(2) The arbitral tribunal may, on its own initiative at any time or at a party’s request made within 30 days after receiving the award, make an additional award to deal with a claim that was presented in the arbitration but omitted from the earlier award.

(3) The arbitral tribunal need not hold a hearing or meeting before rejecting a request made pursuant to this section. [ 50 ]

Section 44 is wholly discretionary; the Tribunal was not bound to re-open the arbitration or hear further submissions. A tribunal’s failure to hear submissions on an issue upon which its decision will be based has been said to be a denial of natural justice that can be cured by s. 44(1)(b): 1210558 Ontario Inc. v 1464255 Ontario Limited , 2011 ONSC 5810 at paras 36-37 , 108 OR (3d) 192 [ 1210558 Ontario ]. A party can also resort to s. 44(1) to request a tribunal correct a mathematical error. [ 51 ] The effect of s. 44(1)(

b) is to broaden the scope of a tribunal’s remedial powers if it determines that it has denied the parties procedural fairness.

Section 44 gives an arbitrator the jurisdiction to “correct an oversight in the nature of a procedural unfairness that has resulted in, or has the potential to result in, a fundamental miscarriage of justice”: 1210558 Ontario at para 50. [ 52 ] In this case, SLI wrote to the Tribunal asking for another opportunity to address costs based on the divided success of the parties; the Tribunal refused.

Although I do not believe the Tribunal was functus , in my view it had the right to refuse if it did not believe there had been procedural unfairness. [ 53 ] Rounding back to the central question here, whether the Tribunal acted fairly, I find that it did. In the context of this complex arbitration involving numerous claims, SLI had been given several opportunities to file further submissions but declined to do so.

There was absolutely nothing unfair about the process. [ 54 ] As I said earlier, even on a reasonableness standard of review, my decision would be the same. [ 55 ] SLI claims that there were mathematical and perhaps typographical errors in the costs award. For example, SLI states that the total amount awarded to it was $11,984,792.00, not $10,069,465.00 as stated in the costs award. SLI also claims there were mathematical mistakes in the GST calculations. If these errors are truly mathematical and/or typographical, the parties should be able to come to an agreement on the corrections.

Failing the parties’ mutual agreement, mathematical and/or typographical errors can be referred back to the Tribunal for correction. [ 56 ] The application is dismissed. SaskPower is entitled to costs that I set at $1,500 payable forthwith. J. B.L. KLATT