Our Work

Simon Bieber, Sean Blakeley, and Ritika Rai, with research and drafting assistance from summer law student Kate Shackleton, were successful in this expedited application to obtain an order disqualifying and removing an arbitrator as a result of a reasonable apprehension of bias pursuant to section 13(1) of the Arbitration Act, 1991.

This case presented a unique factual circumstance: the arbitrator had himself advised the parties of the existence of a "clear appearance of a conflict" on the basis that a lawyer one of the parties (the applicant in the arbitration, and the respondent in this bias application) intended to call as an expert in the arbitration had recently referred an unrelated litigation matter to the arbitrator. The lawyer-expert was the instructing lawyer on the matter, and the arbitrator had been "tasked with preparing the pleadings and assuming carriage of it."

The arbitrator disclosed the conflict to the arbitral parties in the days prior to the commencement of the arbitration and proposed options two options: waiver of the conflict, or his withdrawal. When our firm's client (the respondent in the arbitration, and the applicant in this bias application) declined to waive the conflict, the arbitrator refused to resign. 

On application to the Ontario Superior Court of Justice, the arbitrator was ultimately disqualified. The Court found that the "reasonableness of the apprehension of bias flows from the manner in which the potential conflict was managed" after the arbitrator disclosed it. Once the arbitrator had made determined, and communicated to the parties, his view that there was a "clear appearance of a conflict", the only tenable remedy was for both parties to waive the conflict, or for the arbitrator to withdraw.