Arbitrators must state the logical connection between the evidence, the law and the outcome: court
The Superior Court of Justice has set aside an arbitral award in a cricket association dispute after the arbitrator failed to deliver adequate reasons for her judgment.
Considering counsel’s submission, arbitrators must establish a logical connection between evidence and law to fulfill the sufficiency of a decision, Superior Court Justice Paul Perell wrote, in decision finding that the arbitrator failed to meet the standard in this case.
Eric Morgan, a partner at Kushneryk Morgan, says this decision highlights the importance of providing reasons for transparency in our judicial and arbitral systems. Written reasons, Morgan says, ensure that people accept dispute resolution outcomes because they are heard by someone who understands even if in disagreement.
“The losing party needs to feel heard, which is part of accepting the outcome, even if they disagree. They need to feel that the arbitrator has listened to the evidence, understood the issues and applied judgment to the facts and the law as it is,” says Morgan.
In Alberta Cricket Association (association) v. Alberta Cricket Council (council), rival cricket associations sought to control cricket in Alberta and become the provincial association for Cricket Canada.
Cricket Canada governs cricket in the country. To become a member under its by-laws, a provincial cricket association must effectively control organized competitive cricket within its province. However, Morgan says the phrase was undefined in Cricket Canada’s by-laws.
Under federal funding, organized competitive sports must submit to arbitration to the Sport Dispute Resolution Center, and the Ontario Arbitration Act governs the center’s rules for all disputes.
When the parties submitted to arbitration, the arbitrator defined the language in the by-laws emphasizing membership numbers, governance practices, and development programs. However, Morgan says she ruled in favour of the Alberta Cricket Council based on a leadership change that was not grounded in arguments and facts.
The arbitrator decided the Alberta Cricket Council be the provincial association instead of the Alberta Cricket Association, which has been around since the 19th century. The award gave the council effective control of organized competitive cricket within Alberta and a member of Cricket Canada with voting privileges.
The arbitrator also awarded the council the Provincial Sport Organization (PSO) status for cricket in Alberta. In a supplementary decision, she clarified that the council had replaced the Alberta Cricket Association as a member of Cricket Canada and that the association was no longer the PSO.
The decision showed no analysis of how the arbitrator applied any effective control criteria and did not refer to any actual finding. As a result, Alberta Cricket Association sought to set aside the award under s. 46(1) of Ontario’s Arbitration Act because the arbitrator breached their right to fair and equal treatment and failed to comply with the mandatory procedures and standards of the Act.
Justice Perell agreed, finding that the arbitrator’s written reasoning was inadequate and did not explain her ruling as required s. 38 (1) of the Act. He wrote that the arbitrator never explained why the association lost, and the outcome concentrated on a leadership change in who controlled competitive cricket in Alberta.
Written reasons show parties that the adjudicator has paid attention to their arguments and treated them fairly and with due process, Justice Perell wrote. Providing reasons removes the appearance of arbitrariness, makes the process transparent, and the decision-maker accountable when called to explain and justify the decision, the court found.
“That explanation is to explain the answer to a political question and a question much different from the legal question of which organization had demonstrated effective control of organized cricket in Alberta. The arbitrator was charged with answering a legal question not a political one.”
Justice Perell ordered a new arbitration before a different arbitrator.