News + Insights

On October 7, the Ontario Superior Court of Justice (Commercial List) released its decision in Atkinsréalis Construction (Pacific) Inc. v. GIP Construction Ontario East Ltd., 2026 ONSC 5666. This decision clarifies how far an arbitrator may go in questioning witnesses under the Arbitration Act, 1991. Justice Myers granted our client's application under s. 13(6) and ordered the Arbitrator removed from an ongoing construction arbitration.

The arbitration arose from the Trillium Line Extension Stage 2 Project in Ottawa. Atkinsréalis (ATRL) was the prime contractor on the project, and GIP Construction Ontario East Ltd. was its roadworks subcontractor. Both sides had claims against each other arising from project delays. The parties jointly appointed "a very experienced arbitrator" with specialized construction-industry knowledge. On the eighth day of the hearing, ATRL asked the Arbitrator to step down. He dismissed that challenge with comprehensive reasons, and ATRL then applied to the court.

In his reasons for decision ordering the Arbitrator's removal, Myers J. (as he then was) stressed at the outset that no one had questioned the Arbitrator's bona fide intention to perform his role to the best of his ability, and that actual bias had not been alleged. Nor did the Court fault the Arbitrator for choosing to take an active role by asking questions to clarify the evidence. The narrower question was whether the Arbitrator’s particular questioning created circumstances "that may give rise to a reasonable apprehension of bias". The Court found that it did, holding that the Arbitrator's inquisitorial approach in this case led him to impermissibly "descend into the arena".

Key Legal Takeaways

1. Neutrality is mandatory and cannot be contracted out of. Section 19 of the Arbitration Act, 1991 requires that parties be treated equally and fairly, and s. 3 prevents parties from excluding that obligation. The Court therefore rejected the submission that parties may agree to any process they wish (and that they had, in this case, agreed to precisely the type of questioning in which the Arbitrator engaged). While Myers J. accepted that parties could perhaps design a fair inquisitorial process, doing so would likely require "very express wording" respecting the statute's mandatory language, and that had not taken place here. Although the Arbitrator in this case had told counsel he preferred "a somewhat more inquisitorial approach," both counsel agreed to it, and the terms of appointment allowed the Arbitrator "to question any witness," nothing in the terms authorized cross-examination. The Court held that the parties' agreement was "a far cry" from releasing the Arbitrator from his duty of neutrality.
2. Arbitrators and judges are held to the same standard of neutrality. The Court confirmed that the same bias principles apply in court and in arbitration. The parties' choice of their arbitrator makes confidence in that arbitrator's independence more important, not less. A reasonable apprehension of bias "cannot be balanced away" on the ground that it is minor or that a rehearing would be costly.
3. Questioning to clarify is permitted; cross-examination is presumptively not. The Court rejected the idea that an arbitrator's questions cannot, by definition, amount to cross-examination. Arbitrators must not cross-examine because that technique belongs to adversarial counsel and is inconsistent with neutrality. Not every leading question is disqualifying, and each case turns on its full context. But cross-examination by a decision-maker is "presumptively on the wrong side of the line".
4. Good intentions do not answer the test. The decision-maker's motivation is not relevant. A well-intentioned search for the truth can still cross the line unintentionally.
   
5. Failure to object is relevant only to tactical motive. Parties cannot consent to unfair proceedings. A failure to object in real time to an arbitrator's conduct or neutrality matters only as a possible sign that the bias issue is being raised for tactical reasons. In this case, the Arbitrator himself had found no evidence of tactical motive. The Court agreed, noting that counsel had in fact objected "in a measured and respectful way," and had done so while the evidentiary stage was still under way.

The Court ultimately held that the Arbitrator had demonstrated a reasonable apprehension of bias because a reasonably informed observer could reasonably apprehend that the Arbitrator could be acting with a predetermined view of the outcome. It accordingly ordered the Arbitrator's removal under ss. 13(1) and 15(1) of the Arbitration Act, 1991. 

This decision is an important one for Ontario's arbitration bar, offering useful guidance for parties and arbitrators alike. Active, well-prepared arbitrators remain welcome in Ontario, provided their questioning stays on the neutral side of the line.

Atkinsréalis was represented by AGB lawyers John Adair, David Ionis and Rachel Allen.