Ontario – It’s not cricket: Ontario court emphasizes arbitral awards must include reasons – #580

In Alberta Cricket Association v. Alberta Cricket Council, 2021 ONSC 8451, Justice Perell took the rare step of setting aside an arbitral award for failing to state the reasons on which it was based. Justice Perell found that the arbitrator of a sports-related dispute had failed to deliver adequate reasons and so he set aside the award and directed a new arbitration to be conducted before a different arbitrator.

The dispute related to which organization – either the Alberta Cricket Association (“Association”) or the Alberta Cricket Council (“Council”) – controlled cricket in Alberta for the purpose of membership in a national cricket organization. At the national level, Cricket Canada is the governing body for cricket in Canada. To be a provincial member of Cricket Canada under its by-laws, a provincial cricket association must demonstrate “effective control of organized competitive cricket within the province”. The phrase was not defined in Cricket Canada’s by-laws. When the dispute was submitted to arbitration, the arbitrator went to considerable length to set out qualitative and quantitative criteria to define this language. However, in the final award in favour of the Council, the arbitrator provided no reasons on the central issue on the merits of the arbitration, namely whether the Council had “effective control” of cricket in Alberta. The award contained no analysis of how the arbitrator applied any of the effective control criteria, nor did the award refer to a single finding of fact that the arbitrator had made. The Association sought to set aside the award under s. 46(1) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 on the grounds that, among other things, the arbitrator breached the Association’s right to fair and equal treatment or the arbitrator failed to comply with the mandatory procedures and standards of the Act. Justice Perell found that the arbitrator’s written reasons were inadequate and did not provide an explanation for her award, as required under section 38(1) of the Act.

Justice Perell explained more broadly the importance of providing written reasons beyond the statutory requirement, and what constituted adequate reasons:

[55] Written reasons show the parties that the adjudicator has paid attention to their arguments and treated them fairly and with due process. Providing reasons for a decision removes the appearance of arbitrariness, makes the process transparent, and makes the decision-maker accountable because he or she is called on to explain and justify the decision. The question of the adequacy of reasons for decision is whether the reasons, viewed in light of the record and counsel’s submissions on the live issues presented by the case, explain why the decision was reached, by establishing a logical connection between the evidence and the law on the one hand, and the decision on the other. The critical question is whether in the context of the record, the issues and the submissions of the parties, the judgment is sufficiently intelligible to show that the adjudicator understood the substance of the matter and addressed the necessary and critical issues. In the immediate case, the Arbitrator did not meet the standard.

[56] The Arbitrator never explains why the Association lost. The Arbitrator’s explanation for the outcome seems to be that it was time for change in leadership in who controlled competitive cricket in Alberta.

[57] That explanation, however, is to explain the answer to a political question and a question much different from the legal question of which organization had demonstrated effective control of organized cricket in Alberta. The Arbitrator was charged with answering a legal question not a political one.

Contributor’s Notes:

Justice Perell’s decision highlights the importance of arbitrators providing reasons for their decisions. Not only are written reasons a technical requirement for the form of an award under s. 38 of Ontario’s Arbitration Act, 1991, SO 1991, c 17, but reasons are needed to demonstrate that an arbitrator has absorbed and understood the issues, evidence and arguments that are made to him or her. Even if a party has not succeeded in an arbitration, the party’s evidence and argument must be heard by the arbitrator. The significant work that the arbitrator, in this case, did to develop criteria for what constituted “effective control” was not a substitute for an adequate explanation of her reasoning and application of those criteria to the facts at hand. An arbitrator’s reasons are an integral component of the award which must be included.

The decision is an unfortunate example of arbitration not providing an efficient dispute resolution mechanism for the parties. The parties were put to the time and expense of proceeding with the arbitration before the arbitrator, and then through the set-aside application before the court (there were several arbitral stages and court challenges even within these processes), only to be directed by Justice Perell that the arbitration had to be restarted.

This decision also involves sports arbitration, which is something of a subgenre of arbitration under various jurisdictions’ rules. In this case, Cricket Canada receives federal government funding, a condition of which is that Cricket Canada must submit disputes of its members for resolution by the Sport Dispute Resolution Centre (the “Centre”). Disputes referred to the Centre are governed by the rules set out in the Sport Dispute Resolution Codeand by Ontario’s Arbitration Act, 1991, SO 1991, c 17.