Ontario Civil

Alternative Dispute Resolution

Judicial review of arbitration awards

Grounds for review

Arbitrator’s breach of obligation to treat party fairly constituting breach of natural justice

Parties signed minutes of settlement resolving issue of child support for two children. Parties agreed to submit subsequent dispute about retroactive and prospective child support to arbitration. Eight days before arbitration hearing was scheduled, father dismissed lawyer. Arbitrator refused father’s request for adjournment, and father attended arbitration hearing without lawyer. Father applied for judicial review, seeking to have arbitration award set aside. Application granted. Arbitrator considered father’s request for adjournment but she did so in relation to whether he intended to appear at hearing and what consequences of not appearing could be, and there was nothing that showed that arbitrator considered father’s actual reason for requesting adjournment, that he wanted opportunity to obtain new counsel. Arbitrator appeared not to have put her mind to whether father was honestly seeking to exercise his right to counsel or whether he was manipulating system to orchestrate delay. This was not case where father had gone though number of lawyers, and there was no logical benefit to him in delaying matter. Father’s request for adjournment was extremely timely. Based on evidence, it seemed clear father was honestly seeking his right to legal counsel and he was denied opportunity. Consequences of hearing were serious and father was prejudiced by refusal to grant adjournment, while there was no evidence that mother would have been prejudiced by adjournment. In circumstances father was not treated equally and fairly by arbitrator, and he was not given opportunity to present his case or respond to mother’s case. Arbitrator did not balance interests of mother to get on with hearing with interests of father to exercise his right to counsel or with interests of administration of justice to ensure matter was decided on its substantive merits and that justice was not only done but was seen to be one. Breach of obligation to treat father fairly and equally pursuant to s. 19 of Arbitration Act constituted breach of natural justice, arbitration award must be set aside, and parties were to submit dispute to different arbitrator.

Lockman v. Rancourt (2017), 2017 CarswellOnt 5118, 2017 ONSC 2274, Tracy Engelking J. (Ont. S.C.J.).

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