In Spivak v. Hirsch, 2021 ONSC 5464, Justice Jarvis heard a motion to remove an arbitrator pursuant to sections 13 and 15(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 on the basis that the arbitrator demonstrated a reasonable apprehension of bias, actual bias and had not treated the applicant fairly and equally. The applicant raised concerns which she said, cumulatively, constituted bias. Essentially, the applicant argued bias on the basis of awards issued against her and that she was not being afforded the same litigation latitude as the respondent. The court dismissed the application. A reasonable person, when considering the applicant’s concerns in the context of the entirety of the arbitration proceedings, would not think this amounted to bias. In any event, the applicant was out of time. Section 13 of the Arbitration Act makes it mandatory that a person who wishes to challenge an arbitrator must do so within 15 days of becoming aware of the grounds for challenge. There is no discretion to extend the time to take into account earlier incidents of alleged bias.
The applicant wife and respondent husband were married in 2004 and separated in 2011. On February 19, 2014, the parties entered into minutes of settlement, as part of which, the parties consented to a “multidirectional order” that addressed a number of issues relating to parenting and child support. On February 28, 2014, a consent order was made by Justice McGee reflecting what the parties had agreed. The order contained the following arbitration provision:
93. If the parties are unable to resolve a parenting issue that is designated in this multi-directional order as a matter for Mr. Mamo, then they shall mediate/arbitrate the issue with Alfred Mamo. For clarity’s sake, Mr. Mamo will deal with parenting disputes about minor changes to the schedule, extracurricular activities, including Summer camp, and such other parenting issues as contemplated in this multi-directional order…If Mr. Mamo… is required to deal with a parenting issue then he shall first receive the submissions of the parties in writing by email and at his discretion may attempt to mediate the issue and failing a resolution, he shall summarily resolve the issue based on the written submissions of the parties. The parties shall share equally the cost of the mediation/arbitration process subject to the right of the arbitrator to reapportion costs.
Paragraph 11 of the minutes of settlement provided for an automatic review of child and spousal support in June 2018, which was to be preceded by an exchange of financial disclosure in May. A number of disputes arose between the parties related to disclosure and the father’s questioning. Ultimately, a number of procedural motions were brought, and corresponding interlocutory awards were issued by the arbitrator.
On September 9, 2019, the mother requested the arbitrator withdraw because, she said, as a result of a “cumulative series of events”, there was a reasonable apprehension of bias or real bias which made it inappropriate for him to continue as arbitrator. The series of events arose from the interlocutory awards issued by the arbitrator and the parties’ litigation conduct during arbitration. The father opposed the mother’s right to challenge the arbitrator and/or to initiate any such process because the 15-day challenge period as set out in section 13(3) of the Arbitration Act had expired.
On September 20, 2019, the arbitrator issued an endorsement concluding that he was not biased in favour of or against one of the parties and declined to resign. On the issue of whether the wife had brought her motion in time, the arbitrator wrote:
21. I have considered Mr. Epstein’s position with respect to Ms. Spivak being out of time in terms of mounting a challenge pursuant to s.13(1) of the Arbitration Act. The section limits the challenge to an arbitrator to two grounds, the only one being applicable in this case is that allegedly there are “circumstances that giverise to a reasonable apprehension of bias”.
22. Based on Mr. Greenstein’s letter, the most recent event that is mentioned as an item of concern for Ms. Spivak is the Costs Endorsement dated July 28, 2019, and delivered by email to counsel on July 31, 2019. As no other “concerns” are referenced as grounds for the request being made by Ms. Spivak, the fifteen day period within which Ms. Spivak could challenge the arbitrator had clearly expired before the notice sent to the arbitrator in the form of the letter dated September 9, 2019.
23. The fact that Ms. Spivak’s concerns are cumulative makes the date of the last “incident” that much more important, based on the assumption that from Ms. Spivak’s perception, as she articulates it, no one event was sufficient to cause her to act.
24. Section 13(3) makes it mandatory that the person who wishes to challenge the arbitrator “shall send the arbitrator tribunal a statement of the grounds for thechallenge within fifteen days of becoming aware of them”. The mandatory nature of the wording seems to indicate that there is no discretion in extending the time for the challenge to take place and no such extension has been requested in this case by Ms. Spivak.
25. Given the nature of the request now before me I do not want the response to the challenge to be simply based on a “technicality”.
On October 3, 2019, the wife commenced this court application to remove the arbitrator.
The parties agreed that the test for reasonable apprehension of bias was set out in A.M. v. J.M., 2016 ONCA 644. It requires the court to consider “[w]ould a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly?”
Justice Jarvis noted that circumstances in which an arbitrator is disqualified where apprehended or actual bias was demonstrated are often made in conjunction with or overlap with complaints made pursuant to the equality and fairness provisions set out at section 19 of the Arbitration Act. Some examples include:
(a) Where the arbitrator has, or had, a personal relationship with one of the parties or their counsel;
(b) Where the arbitrator’s actions strongly suggested during the mediation preceding formal arbitration that he had already made up his mind about the issues in dispute;
(c) Where contractual pre-conditions to arbitration were ignored; and
(d) Where a party was either not given a fair opportunity to present their case and respond to the other party’s case or where the procedural terms of the parties’ Arbitration Agreement were not followed.
Justice Jarvis found that the wife’s complaints fell broadly into three categories. The first was the arbitrator’s failure to appreciate the circumstances surrounding the husband’s disclosure and scheduling his questioning. The second was the arbitrator’s observations when dealing with costs that the wife was acting unreasonably. The third was the arbitrator’s alleged failure to insist that the father be compelled to abide by the award timetable dealing with his questioning when he refused to be produced after the child did not return to his care as required by the Order. The wife believed that she was not being afforded the same litigation or procedural “latitude” as the husband. The husband contended that the wife “made strategic decisions in the litigation that…led to certain results” and “not happy with those results … has made another strategic decision to change the decision maker”. Justice Jarvis stated that the wife’s complaints related more to litigation conduct between the parties and their lawyers. He also noted that the wife had not challenged the impartiality of the arbitrator or the fairness of his treatment of her before an adverse costs award, despite her assertion now that her complaints were cumulative.
Justice Jarvis dismissed the wife’s application and found that all of the arbitrator’s awards detailed the circumstances, evidence, and context relevant to the award. Further, excepting the costs disposition, the court noted that neither party was preferred to the other, and that a review of the costs award demonstrated a balanced approach.
Justice Jarvis concluded by commenting that the evidentiary onus required for a finding of a reasonable apprehension of bias is extremely high and requires the moving party to show the arbitrator had made up his or her mind about the issues to be determined in arbitration. The wife failed to discharge the burden that a reasonable and informed person would conclude that the arbitrator was biased in reading the award and considering the wife’s concerns in the context of the entirety of the arbitration proceedings.
Cases involving the removal of an arbitrator for reasonable apprehension of bias or actual bias are highly contextual and fact driven. For previous Case Notes that demonstrate conduct necessary to satisfy the test of reasonable apprehension of bias see B.C. – ex parte communications on procedural matters create reasonable apprehension of bias and grant judicial review of award – #063 and Québec – arbitrator appointment process gives rise to reasonable apprehension of bias – #108.