ONTARIO – Arbitration – Court Appointment of Arbitrator – Where the arbitration agreement provides no procedure for appointing the arbitral tribunal, the court has the jurisdiction under section 10(1)(a) of the Arbitrations Act, 1991 to make the appointment. Where there are several qualified candidates, the court’s task is to select the arbitrator that is best qualified by profession or occupation to decide the issues given the issues in dispute and the factual matrix in which they arose. Relative adjudicative experience is often a decisive factor.

Van Doorn v. Loopstra Nixon, 2023 ONSC 1782
2023 ONSC 1782 (March 17, 2023)
Superior Court of Justice (C.J. Brown J.)

This was an application for the court to appoint an arbitrator under s.10 of the Arbitration Act, 1991, S.O. 1991, c. 17. The applicants put forward one name, a retired judge, while the respondents provide two options for arbitrators. The arbitration involved a law firm partnership dispute.

While the partnership agreement included an arbitration clause, it was silent on the procedure for appointing the arbitrator or the type of arbitrator to be appointed. (paras. 4 and 5)

Justice Brown stated the following principles the court will apply in making an appointment:

• Where there are several qualified candidates, the court must select the arbitrator that is best qualified by a profession or occupation. The determination is who is “best suited for the role of arbitrator given the nature of the questions that arise for determination and the factual matrix in which the issue arises.” (para. 18)
• A decisive consideration is often relative experience adjudicating disputes. (para. 19)
• Without more, expertise in the technical subject matter of the dispute is not sufficient. (para. 20)

In this case, there was no differentiation on the basis of independence and impartiality – none of the arbitrators had a conflict. (para. 21) All the candidates were also well-recognized in the field of arbitration and generally qualified. (para. 22) Accordingly, the court focused on selecting the best candidate for the facts and issues in the case. (para. 23)

While the respondent argued that its candidates had more recently been partners in law firms, which made them better suited to arbitrate the dispute, the court found that the adjudication and arbitration experience of the parties was more relevant. Justice Brown also noted that all three candidates had experience as partners in law firms. While the retired judge candidate’s experience was longer ago, the court was not satisfied and did not accept that current partnership disputes are significantly different than those which arose when the retired judge candidate was a partner. (para. 26)

The court found that the retired judge candidate was the best arbitrator for this specific case based on their greater experience as an adjudicator, both as a judge and as an arbitrator. While the evidence was unclear how many years of adjudicative experience the other two proposed arbitrators had, the retired judge had a combination of 20 years of such experience both on the bench and in private practice. They had also adjudicated partnership disputes, including those involving law firms both as an arbitrator and a judge. (para. 27) The court held that the retired judge candidate therefore had the “depth of experience necessary for this dispute.” (para. 29)

Editor’s Note:

In assessing who is best suited to act as arbitrator in a particular matter, the key consideration is whether the potential arbitrator understands the nuances of arbitration practice and will adopt a process that is tailored to the dispute, streamlined, and efficient. Whether that person is a retired judge or not, the same analysis applies.

Arbitrations are likely to be fairer, more effective and more efficient more if counsel and the arbitrator are conversant with technology. The role of technology in international  arbitration was recently the subject of a report by ICC Dispute Resolution Services. The same considerations are applicable in domestic arbitrations. On a motion to select the most suitable arbitrator, it could be helpful to point out whether the proposed arbitrator is tech-savvy and can manage the technological needs of the arbitration, including virtual hearings and document management.