Ex-judge orders public arbitration hearing

In one of the few rulings on holding public arbitration hearings, a case that will determine the amount of private sector payments to help fund the Blue Box program in Ontario this year will be an open proceeding, a retired Ontario Court of Appeal judge has ruled.

Robert Armstrong, who’s adjudicating the dispute, concluded that arbitration hearings are “presumptively private” but found it’s a rebuttable presumption.

“An open and transparent hearing process in this case will serve the public interest and will not detract from the parties’ ability to achieve a fair and just result,” wrote Armstrong in a decision issued last month.

The hearing, scheduled for April 23, is to resolve a dispute between the Association of Municipalities of Ontario, the City of Toronto, and Stewardship Ontario, an industry organization for companies that import or manufacture products that can become Blue Box materials.

The private sector is to contribute 50 per cent of the annual net costs of the program, as administered by Waste Diversion Ontario, a provincial agency with private and public sector members on its board. The municipalities have calculated the total net cost of the program this year at $117 million while Stewardship Ontario argues it’s just under $96 million.

“There is a great deal of public money involved,” says Dianne Saxe, counsel for the association, which, along with the City of Toronto, was seeking to have the hearing open.

Stewardship Ontario, represented by Thomas Sutton of McCarthy Tétrault LLP, agreed the final decision could be public but argued an open hearing could undermine the benefits of a private arbitration process.

“It is a very practical ruling,” observes Iain MacKinnon, a lawyer at Chitiz Pathak LLP who frequently acts for the media on open-court issues.

“I think he [Armstrong] got the right result.”

In his analysis, Armstrong noted that the case law is “sparse” in Canada on whether arbitration hearings may be open. “The Arbitration Act is similarly silent on the issue,” although Armstrong concluded an adjudicator does have discretion under the statute to make a hearing public.

In one of the few Canadian rulings in this area, an arbitrator ordered an open grievance hearing related to alleged patient abuse by a nurse in North Simcoe Hospital Alliance v. Ontario Nurses’ Association. The arbitrator sided with the request by the nurses’ union to open the hearing in part because the hospital is a public institution.

In the Blue Box funding dispute, Armstrong agreed with Stewardship Ontario and found the actions of the arbitrator didn’t engage the Charter of Rights and Freedoms. As a result, the Dagenais v. Canadian Broadcasting Corp./R. v. Mentuck principles of openness in court proceedings weren’t applicable.

Waste Diversion Ontario is “not an agent of the Crown” and the arbitrator in this dispute “acts pursuant to the agreement of the parties,” wrote Armstrong in explaining that the Charter didn’t apply.

A long line of authorities in Britain and Australia suggest arbitration hearings are presumptively private, a fact Armstrong cited in his ruling.

The decision outlines four factors an arbitrator should consider when deciding whether the presumption is rebuttable: the nature of the dispute; the impact of the presence of the public and the media on the proceedings; any negative effect on the parties to the proceedings; and whether there’s a legitimate public interest in ordering a public hearing.

“I am satisfied that the review of the above factors supports an order for a public hearing,” wrote Armstrong.

“This arbitration concerns a significant environmental protection program for the province of Ontario.”

The parties can address the matter of confidentiality “if and when it arises” at the hearing, according to Armstrong, who also rejected the idea that the presence of media could have an “adverse impact” on the proceeding. “The parties are sophisticated and they are represented by experienced and sophisticated counsel,” he wrote.

Given the “dearth” of case law, “it is an important decision on this issue” because it explains the factors to consider when there’s an application to make an arbitration hearing public, says MacKinnon.

“We have many cases applying the Dagenais/Mentuck principles when s. 2(b) Charter rights are engaged but very little on what should be taken into account in the context of presumptively private hearings pursuant to the Arbitration Act.”

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