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Case #049E – Dufferin v. Morrison Hershfield
June 30, 2022

ONTARIO – Application to remove a sole arbitrator of a complex construction dispute due to alleged apprehension of bias dismissed. The Arbitrator was selected for his construction expertise and was permitted to question witnesses and ask questions at any time during the hearing under a procedural order. The arbitrator’s interventions, unlike interventions by a trial judge, were not evidence of bias.

As an Arbitrator’s impartiality and independence are the cornerstone of arbitration, it would be unjust to deny a party the ability to challenge the arbitrator for bias where the impartiality of the arbitrator is required for both procedural fairness and integrity of the process.

Dufferin v. Morrison Hershfield
2022 ONSC 3485 June 10, 2022
Superior Court of Justice (Justice S. J. Woodley)

This decision concerned an application under ss. 13(6) and 15(1) of the Arbitration Act, 1991, S.O. 1991, c. 17, (“the Act”) to remove a sole arbitrator on the basis that circumstances exist which give rise to justifiable doubts about the arbitrator’s independence and impartiality, which are alleged to give rise to a reasonable apprehension of bias. [para. 1]

Facts

The Applicant is a large civil construction company based in Quebec, which was building a rapid transit network on Yonge Street in Toronto. The Respondent (“MH Ltd.”) is a private engineering firm. The parties entered into an entered into a $22.1 million Design Service Agreement (“DSA”), under which the Respondent agreed to perform the design-related requirements. [para. 4-6]

MH Ltd. commenced an arbitration on August 15, 2019, seeking payment for $33 million for additional charges. By way of background, Dufferin made a claim against the Owner of the project for $149 million of additional charges, which included the charges claimed by MH Ltd. Dufferin and the Owner settled their disputes at mediation, including a settlement of MH Ltd.’s claims as between the Owner and Dufferin. Following the mediation, Dufferin advised MH Ltd. that they had no entitlement to any additional payment for additional services. [paras. 15-20]

On September 23, 2019, MH Ltd. accepted Dufferin’s proposal to appoint Stephen Morrison, (“Mr. Morrison” or “the Arbitrator”) an experienced lawyer, construction law specialist, and certified Arbitrator, as the Sole Arbitrator. The parties also agreed that ADRIC Arbitration Rules would govern the arbitration. [para. 22-25]

Prior to the hearing, Mr. Morrison heard two preliminary applications: (i) an application for interim relief that the Arbitrator dismissed on February 6, 2020; and (ii) a Redfern Document Request Application (which is a table for documentary production used in arbitrations). Before the hearing, MH Ltd. increased its claim by a further amount of $2.43 million. [paras. 27-28]

The arbitration commenced on November 24, 2020. 14 days later, MH Ltd. made its application to the Court seeking to remove the Arbitrator after the bulk of the evidence was received. MH Ltd. claimed that the Arbitrator’s conduct, taken as a whole, created a reasonable apprehension of bias. [paras. 29, 37]

MH Ltd. claimed that the Arbitrator’s interventions during the hearing crossed from adjudication to advocacy with the only explanation being a predisposition by the Arbitrator toward MH Ltd.’s position, by the following:

(a)  making repeated statements of position (rather than questions) and examining the  Applicants’ witnesses in a manner that indicated a pre-judgment of issues and credibility;
(b)  advocating positions favorable to the Respondent, seeking admissions adverse to the Applicants, and engaging in cross-examination of the Applicants’ lay witnesses; and
(c)  failing to demonstrate a balanced/proportionate approach with witnesses of both  parties, [para. 38-39]

Dufferin denied any bias on the part of the Arbitrator.

Justice Woodley recounted the events that took place in the arbitration before MH Ltd. made its application to remove the Arbitrator, beginning in October 2019, including:

  1. Completion of pleadings;
  2. Agreement to conduct the arbitration under the ADRIC National Arbitration Rules;
  3. Participating in a procedural hearing which set the schedule and the process of the arbitration including exchange of documents, three rounds of witness statements, three rounds of expert reports and submissions;
  4. The parties agreed that the evidence would be subject to a chess clock so that the parties would have equal time in all aspects of the arbitration;
  5. Procedural Order No. 1 specifically permitted the Arbitrator to ask questions of any witness at and to interject with questions at any time;
  6. Prior to the hearing, the parties exchanged 32 witness statements;
  7. MH Ltd. delivered 5 expert reports and Dufferin delivered 11 expert reports;
  8. 2,658 pages of documentary evidence was delivered to the Arbitrator in the months before the hearing; and
  9. On November 13, 2020, the parties delivered pre-hearing submissions, which were hyperlinked to specific supporting evidence. [ 46-54]

Arbitrator’s decision on the apprehension of bias motion

On December 11, 2020, MH Ltd. delivered an application to the Arbitrator asking him to remove himself on the grounds of bias. Submissions were exchanged. On December 24, 2020, the Arbitrator delivered his reasons for dismissing the bias application. [paras. 57-58]

Court Application:

The Court addressed the following issues:

(i)   Is it open to MH Ltd. to apply to this Court for removal of the Arbitrator where it has challenged the Arbitrator under the ADRIC Rules?
(ii)   Did the parties authorize the Arbitrator to take on an inquisitorial role?
(iii)  Is a party obligated to object to biased conduct prior to bringing a bias challenge under ADRIC Rules?
(iv)  Is the Application out of time under the ADRIC Rules; and if not,
(v)   Does the Arbitrator’s conduct give rise to a reasonable apprehension of bias such as to warrant his removal. [paras. 64-65]

Analysis:

The Court held that:

  • Section 13(6) of the Arbitration Act expressly grants the Court jurisdiction to determine the issue of whether the arbitrator should be removed on a de novo The right to seek judicial review granted by s. 13(6) was not varied or excluded by agreement or by the ADRIC Rules. [para. 80]
  • The focus of this application was whether MH Ltd. proved that the conduct of the Arbitrator gave rise to a reasonable apprehension of bias, and not otherwise. The Arbitrator’s conclusions that he was entitled to conduct an inquisitorial process are irrelevant to the Court’s review. [ 83]
  • The duty to remain wholly impartial remains throughout the duration of the arbitration proceeding (Rule 3.3.2). While one ruling, comment or question may not raise “justifiable doubts”, continuous rulings, or a series of comments and questions may raise “justifiable doubts”. It would be nonsensical to interpret the ADRIC Rules to mean that a failure to object to a singular act would permit a partial or biased arbitrator to remain seized where “circumstances” give rise to “justifiable doubts”. [ 89]
  • On an interpretation of the ADRIC Rules, MH Ltd. commenced the application within the requisite time. In any event, the failure to comply with the ADRIC Rules is an irregularity not a nullity. As impartiality of the Arbitrator is the cornerstone of arbitration, it would be unjust to deny MH Ltd. the ability to challenge the arbitrator for bias where the impartiality of the arbitrator is required for both procedural fairness and the internal integrity of the arbitration process, even when the request was late pursuant to the ADRIC Rules.
  • The test of reasonable apprehension of bias was articulated in Committee for Justice & Liberty v Canada (National Energy Board), 1976 CanLII 2 (SCC), and where the Court held that the test involved a “two-fold objective element”:
  • the informed, right-minded, person considering the alleged bias must be reasonable; and
  • the apprehension of bias itself must be reasonable in the circumstances. [ 110]

Referring to Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25 at paras 20 & 22, the Supreme Court linked the issue of bias to the dual need for impartiality, and the assurance of a fair adjudicative process in both reality and appearance. The analysis does not require an assessment or determination of whether the decision maker is actually biased, the appearance of bias is sufficient. [para. 111]

Justice Woodley also noted that private commercial arbitration is critically different from litigation:

  1. Arbitration is a private proceeding, in which the decision maker is chosen by the   parties;
  2. Arbitrations are typically confidential. The procedure and the outcomes do not     impact the administration of justice, nor the perception of the administration of justice;
  3. Arbitrations are governed by different institutional rules and procedures; and
  4. Parties to an arbitration are free to agree upon their process, including the right of  the arbitrator to question witnesses as occurred in the present case. [para. 113]

The Court analyzed the conduct of the parties in great detail and concluded that the Arbitrator maintained his independence and impartiality and provided each witness with an opportunity to fully explain their position, including any reason for having adopted a contrary position prior to the commencement of the arbitration hearing. [paras. 114-154] The Court also noted that the Arbitrator was in a much different position than a trial judge, in terms of evidence, experience, and expertise. [para. 128]

Woodley J. further referred to 8 examples of the Arbitrator’s statements or questions which showed the Arbitrator’s continuous efforts to maintain balance and fairness. [para. 155]

Conclusion

The Court concluded that the Arbitrator was not biased, and that the application should be dismissed with the following observation:

In the present case, the Arbitrator was engaged, focused, prepared, and diligent. He was actively involved in the arbitration hearing and sought information and evidence in his truth-seeking capacity. His subject matter expertise allowed him to concentrate on issues that concerned him, and he readily and fully advised all parties of the “hot button” issues that required to be answered.

Further, although the Arbitrator was entirely engaged in the process, he was not engaged as an advocate for either party. Instead, I find that he was advocating for the truth, wherever that lead. [paras. 169-170]

Editor’s Note

An issue that was not discussed in this decision is the effect of the application on the disposition of the rest of arbitration.

MH Ltd. brought its motion to the Court in January 2021. It was heard by Justice Woodley on November 29-30, 2021. The Court rendered its decision dismissing the claim for removal of the arbitrator on June 10, 2022. 60 to 90 days were allowed for costs submissions.

The effect of this process caused an 18-month hiatus in the completion of the arbitration and probably even longer due to the time of the year. Section 15(5) of the Arbitration Act, 1991 provides for a limited appeal – namely, for corrupt or fraudulent acts or undue delay (as set out in s.15(4)), but no other appeal is permitted (s. 15(6)).

The takeaways from this case are:

  1. Removing an arbitrator on the grounds of apprehension of bias is a difficult, uphill climb, particularly, in a complicated case, where the arbitrator has special expertise;
  2. Delay may not be fatal to the application for removal of the arbitrator, but it will be taken into account by the Court. If a party delays in challenging the Arbitrator until evidence is nearly completed, the merit of the application will be affected;
  3. Unlike a judge in Court, who should not “enter the arena” an arbitrator with specific subject-matter expertise may question witnesses, particularly, if a procedural order expressly permits it;
  4. On review of the Arbitrator’s conduct, the Court will scrutinize the arbitrator’s statements for evidence that the arbitrator was continually diligent about fairness and balance to both parties on all evidentiary and legal issues; and
  5. An application to remove an arbitrator on the grounds of apprehension of bias is a complicated lengthy process, which will substantially delay the hearing of the arbitration and may impact the continuation of the arbitration in unforeseen ways.

About Us

Arbitration & Business Cases is a blog created by Igor Ellyn and Robin Dodokin in September 2021. Our intention is to provide timely, concise summaries and commentary of Ontario and Canadian case law on arbitration and business matters.

Igor Ellyn,
QC, CS, FCIArb.

iellyn@ellynlaw.com
www.ellynadr.com
416-540-6611
416-365-3750

Robin Dodokin,
FCIArb., Q.Arb., LL.M, Q.Med.

robin@dodokinlaw.com
www.dodokinlaw.com
416-300-6515