In Spinney v. Fowlie, 2025 ONSC 2632, the Court set aside an award for want of procedural fairness. The Court found the applicants were denied fair and equal treatment when the Arbitrator decided, partway through a hearing, to switch from an oral to written hearing format and refused to consider the applicants’ written closing submissions. This case should serve as a reminder that even difficult parties are entitled to procedural fairness.
Background– The underlying dispute involved a harassment complaint by a Wrestling Canada Lutte (WCL) complaints and appeal officer, Dr. Frank Fowlie. WCL tasked Dr. Fowlie with investigating a code of conduct complaint involving one of the applicant wrestling coaches, Mr. Spinney. The complaint alleged that Mr. Spinney had an undeclared relationship with a female athlete he coached.
During the investigation, Mr. Spinney and the other two applicants, Mr. Shamiyah (another wrestling coach) and Ms. Schiavelli (the female athlete’s mother) sent Dr. Fowlie 18 “very strongly worded emails” that included personal attacks. Dr. Fowlie felt this amounted to harassment. He asked WCL to take steps to remedy the situation; they did not. Dr. Fowlie then filed a harassment complaint under WCL’s internal discipline code, which was referred to arbitration (not the arbitration at issue in the case). Dissatisfied with the result, Dr. Fowlie escalated his complaint to Sport Dispute Resolution Centre of Canada (SDRCC). Ultimately, an award was issued in Mr. Fowlie’s favour.
The SDRCC arbitration was plagued by delays, partly due to injuries Mr. Shamiyah suffered that resulted in him being hospitalized. The hearing was rescheduled. Shortly before the new hearing date, counsel for Mr. Spinney advised that he could not attend the first day of the hearing due to a funeral. The Arbitrator refused to adjourn the hearing. He proceeded without Mr. Spinney’s counsel and without the other two applicants present. This triggered a bias challenge, which caused the hearing to be adjourned again. Another arbitrator that the SDRCC appointed to hear the challenge dismissed it.
At a case conference, the Arbitrator proposed to continue the oral hearing over a three-day period, which he stated would provide the applicants with “a reasonable opportunity to cross-examine and to produce their own evidence and submissions”. This was memorialized in a procedural order. It is important to note that, at this point, Dr. Fowlie had already testified and presented his case orally.
However, on the first scheduled hearing day, the Arbitrator declared that he would revise the procedure such that all remaining steps would proceed in writing. He did not consult the parties before making this decision. The applicants’ counsel objected, noting that the Arbitrator’s order took them by surprise. The Arbitrator did not budge. Although the applicants protested and refused to file any written evidence, two of them, Messrs. Spinney and Shamiya, did file written closing submissions.
The Award – The Arbitrator released an award in Dr. Fowlie’s favour, finding that the applicants’ emails amounted to harassment. He did not separately analyze the conduct of each applicant and issued the same sanction against all three: suspension from WCL and all WCL-sponsored events until 30 days following the 2028 Olympic Games. The Arbitrator stated explicitly in his award that he declined to consider the applicants’ written submission, stating that “they are not based on evidence properly before me in these proceedings.”
The Decision – The Court found the Arbitrator violated procedural fairness, both in abruptly switching from an in-person to an in-writing hearing format, and in refusing to consider the written submissions Messrs. Spinney and Shamiya filed.
With respect to the change in hearing format, the Court found that the midstream change to a written hearing unfairly denied the applicants the right to an oral hearing under subsection 26(1) of the Arbitration Act, 1991 [the Act], as well as a provision in the SDRCC’s rules. Refusing to permit them to cross-examine Dr. Fowlie violated subsection 19(1)’s fair and equal treatment requirements. This was even though Mr. Spinney’s counsel refused to cross-examine Dr. Fowlie at the previous hearing (when the bias allegation was made).
The Court acknowledged that the procedural change was motivated by the Arbitrator’s concern over the mounting delays, brought about by, among other things, the bias allegations. Although the Arbitrator’s concerns may have been “reasonable”, the Court noted that “the fairness and equality of treatment standard must be adhered to in spite of a party’s conduct during an arbitral proceeding”. He also cited authority that a party’s refusal to participate “did not obviate her right under s. 19(1) of the Act to be treated equally and fairly” (para. 47).
With respect to the Arbitrator’s refusal to consider the applicants’ written submissions, the Court found this too violated procedural fairness. It noted that the applicants did not have to call evidence if they chose not to, and that this did not disentitle them to provide written submissions. Even though the applicants did not file evidence, the respondent did, including the 18 emails at the heart of the dispute. The Court noted that Mr. Spinney “chose to address some legal and some procedural points based on the existing record”, and that he was within his rights to do so, regardless of whether he filed additional evidence of his own.
In the result, the Court set aside the award (and related cost award) and remitted the matter to the SDRCC for a new hearing before a different arbitrator.
Contributor’s Notes:
First, the Court makes a critical point that all arbitrators and practitioners must keep in mind: not all questionable conduct, such as the delays at issue in this case, deprives the offending party of the right to procedural fairness. Considering the procedural history, the Arbitrator was entirely justified in his frustration with the applicants (as well as WCL based on the content of his award as summarized by the Court). However, it is critical to ensure that procedural decisions are not punitive, and that when the arbitral tribunal makes an order negatively affecting a party’s procedural rights, that there is a rationale and sound connection between that order and the parties’ conduct.
Although the hearing format switch was at the heart of the Court’s decision, the Arbitrator’s refusal to consider the applicants’ written submissions drives this point home even more forcefully. Nothing about the applicants’ conduct bore a causal connection with their right to file closing written submissions. Arbitral tribunals should take care to assure any procedural sanction is truly corrective of the mischief at issue.
Second, the Court’s reasoning demonstrates that the Act, and other arbitration legislation across Canada, values fairness over efficiency. The requirement that parties be treated equally and fairly is one of the few aspects of the Act that parties may not exclude or modify. In contrast, although the Act is meant to promote efficiency, this cannot come at the cost of a fair process. In addition to being reflected in the Act’s provisions, its drafting history (the ULCC Working Group records) show that its drafters were quite deliberate in prizing fairness over both efficiency and party autonomy.
Third, in its analysis, the Court referred to the well-known “Baker factors” in assessing the requirements of procedural fairness in this case. Baker is a Supreme Court of Canada administrative law decision. However, it speaks to the common law duty of procedural fairness. The Court thus saw fit to refer to it in conducting its analysis, particularly the doctrine of “legitimate expectations” developed in Baker and other cases.
This was sensible. Although there may be important differences between domestic arbitration and administrative law, all disputants form legitimate procedural expectations, regardless of the forum. Here, the fact that Dr. Fowlie was accorded the right to proceed in person, and the Arbitrator’s subsequent procedural order that the applicants would enjoy the same entitlement, set up a legitimate expectation that they would be entitled to make their case at an oral hearing, with full cross-examination rights.