McClintock v. Karam

Ontario Reports

Ontario Superior Court of Justice,

Gray J.

February 17, 2015

124 O.R. (3d) 616 | 2015 ONSC 1024

Case Summary

Arbitration — Bias — Reasonable apprehension of bias — Conflict arising between parties over whether mother was interfering with child's relationship with father and whether child should reside with father rather than mother — Pre-arbitration comments by arbitrator indicating that he had already made up his mind that mother was undermining child's relationship with father and that residence should be changed — Arbitrator giving short notice of date for arbitration and refusing to delay arbitration for several months when informed that mother's lawyer would be out of country — Arbitrator's conduct giving rise to reasonable apprehension of bias — Arbitrator failing to treat mother fairly — Mother's application to remove arbitrator allowed.

Arbitration — Jurisdiction — Separation agreement providing that custody and parenting provisions of agreement could be varied on application to court if there was material change in circumstances — Parties entering into amending agreement which provided that conflicts over custody and access could be resolved through arbitration — Amending agreement specifically excluding issue of parties' joint custodial arrangement from arbitration — Arbitrator having jurisdiction to arbitrate dispute over residence of child and access.

The parties entered into a separation agreement which provided that they were to share joint custody of their daughter, whose primary residence was to be with the applicant. The agreement provided that the custody and parenting provisions of the agreement could be varied on an application to the court if there was a material change in circumstances. The parties subsequently entered into an amending agreement which affirmed that the child's primary residence was with the applicant and that conflicts over custody and access could be referred for mediation/arbitration. The amending agreement specifically excluded the issue of the parties' joint custodial arrangement from arbitration. A conflict arose over whether the applicant was interfering with the child's relationship with the respondent and whether the child's residence should be with the respondent rather than the applicant. A mediator/arbitrator was appointed. During mediation sessions, the [page617] arbitrator stated that the applicant was undermining the respondent's relationship with the child. Warning the applicant that she had to change her behaviour, he stated, "It's not gonna happen anymore by one of two ways: an arbitration hearing and I change the residential plan, or you change". He set a date for the arbitration of the issues of residence and access on short notice and refused to postpone the arbitration when informed that the applicant's lawyer would be out of the country. The applicant brought an application to remove the arbitrator.

Held, the application should be allowed.

The arbitrator had jurisdiction to arbitrate the issues of residence and access. Since the parties had chosen to specifically exclude the issue of joint custody from arbitration, by inference, they left open all other aspects of custody and access.

The arbitrator's comments indicated that he had already made up his mind that the applicant was undermining the respondent's relationship with the child and that the child's residence had to be changed. His conduct gave rise to a reasonable apprehension of bias. He also treated the applicant unfairly.

Cases referred to

Cawthorpe v. Cawthorpe, [2010] O.J. No. 2054, 2010 ONSC 1389, 319 D.L.R. (4th) 746, 86 R.F.L. (6th) 225, 189 A.C.W.S. (3d) 404 (S.C.J.); Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, 68 D.L.R. (3d) 716, 9 N.R. 115; Hercus v. Hercus, [2001] O.J. No. 534, [2001] O.T.C. 108, 103 A.C.W.S. (3d) 340 (S.C.J.); L. (R.A.) v. R. (R.D.), [2007] A.J. No. 163, 2007 ABQB 79, 156 A.C.W.S. (3d) 134; McAlister v. Gallant, [2012] O.J. No. 4201, 2012 ONCJ 565, 30 R.F.L. (7th) 487, 222 A.C.W.S. (3d) 725; Mungo v. Saverino, [1995] O.J. No. 3021, 58 A.C.W.S. (3d) 175 (Gen. Div.); R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, 151 D.L.R. (4th) 193, 218 N.R. 1, J.E. 97-1839, 161 N.S.R. (2d) 241, 1 Admin. L.R. (3d) 74, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1, 35 W.C.B. (2d) 520; Rosenberg v. Minster (2014), 119 O.R. (3d) 27, [2014] O.J. No. 647, 2014 ONSC 845 (S.C.J.); Starr v. Gordon, [2010] O.J. No. 3223, 2010 ONSC 4167, 88 R.F.L. (6th) 54, 191 A.C.W.S. (3d) 488 (S.C.J.); Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, [2003] S.C.J. No. 50, 2003 SCC 45, 231 D.L.R. (4th) 1, 309 N.R. 201, [2004] 2 W.W.R. 1, J.E. 2003-1819, 19 B.C.L.R. (4th) 195, 7 Admin. L.R. (4th) 1, [2004] 1 C.N.L.R. 342, 40 C.P.C. (5th) 1

Statutes referred to

Arbitration Act, 1991, S.O. 1991, c. 17 [as am.], ss. 13, (3), 15, (1), 19, (1), (2), 35

Children's Law Reform Act, R.S.O. 1990, c. C.12 [as am.]

Family Law Act, R.S.O. 1990, c. F.3, s. 56, [as am.], (1) [as am.]

Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, s. 50.2(9)

Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 50

Police Services Act, R.S.O. 1990, c. P.15, s. 122(2)

APPLICATION to remove an arbitrator.

Catherine A. Haber, for applicant.

Michael J. Stangarone, for respondent.

[1] GRAY J.: — Mediation/arbitration is a relatively recent phenomenon. Used in the right circumstances, and with proper [page618] safeguards, it can be a useful means of dispute resolution. However, care must be taken to ensure fairness, and to ensure that a reasonable apprehension of bias does not arise.

[2] Regrettably, in this case, the proceedings were tainted by a lack of fairness and by a reasonable apprehension of bias. For the reasons that follow, the mediator/arbitrator is prohibited from proceeding further, and I order that he be replaced.

Background

[3] The applicant and the respondent were married on September 29, 2001 and divorced on December 22, 2006. They have one daughter, Olivia, who is now ten years old.

[4] The parties entered into a separation agreement on February 15, 2008. Certain provisions of that agreement are relevant to the dispute before me. They are as follows:

6.0 JOINT CUSTODY/PARENTING PLAN

6.1 Joshua and Kelly shall share joint custody of Olivia. Olivia will have her primary residence in the home of Kelly. Kelly will have the day-to-day custody of Olivia.

6.2 Joshua and Kelly will confer with each other on all plans and arrangements relating to access to Olivia, and generally on all important matters relating to Olivia's health, residence, welfare, education, and upbringing.

6.3 In the event of any disagreement between Joshua and Kelly on any of these matters, such disagreement will be referred to a family counselor as they may designated from time to time. The family counselor will discuss the disagreement with each party, with a view to working out a mutually satisfactory solution; if the parties are still unable to agree, then the family counselor will make a decision that will be binding on both parties.

6.4 Joshua will have custody of Olivia as follows:

Every alternate weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m., and in the event the weekend falls on a long weekend, the drop-off time shall be extended to Monday at 6:00 p.m.

One-half of the summer school vacation;

One-half of the spring school vacation;

One-half of the Christmas school vacation; and

Any further and other access as the parties may agree to.

This agreement shall constitute a written direction to Olivia's school, principal, teachers, medical doctors, coaches or other professional involved in Olivia's life, authorizing them to provide information concerning Olivia to Joshua and Kelly.

8.0 MOBILITY

8.1 Kelly shall provide Joshua with at least ninety (90) days written notice of her intention to move Olivia's residence to a location greater than [page619] fifty (50) kms from her current residence, [address omitted], Whitby, Ontario, L1P 1S5.

20.0 MATERIAL CHANGE IN CIRCUMSTANCES

20.1 Only paragraphs 6 -- 8 and 10 -- 14 may be varied if there is a material change in circumstances, whether such change was foreseeable, unforeseeable, foreseen, or unforeseen, by the parties at the time that the Agreement was executed. If such change occurs, the party seeking variation will give to the other written notice of the variation he/she is seeking and Joshua and Kelly will then confer personally or through their respective lawyers to settle, what, if any variation should be made.

20.2 If no agreement has been reached within thirty (30) clear days after notice has been given under subsection (1), variation relating to custody, access and support for Olivia may be determined at the instance of either Joshua or Kelly in a court proceeding under the Family Law Act, Children's Law Reform Act or Divorce Act.

20.3 It is specifically agreed that upon an application to vary section 10 through 14 of this Agreement, the party seeking the variation has the right to apply to the court for interim relief pending trial, and this Agreement will not be a bar to the making of an interim order pending final adjudication of the issue.

20.4 Commencing in 2008, and in each subsequent year, for so long as Olivia is a child of the marriage as defined by the Divorce Act, on or before May 15th, each party will deliver to each other the same documents and current information as that described in section 25 of the Child Support Guidelines upon request of the other parent.

[5] Apparently, matters were relatively amicable until 2011, when the respondent made plans to remarry. He married in February 2012. Shortly thereafter, the applicant advised the respondent that she would relocate from Toronto to Burlington during the summer of 2012. The respondent opposed the move.

[6] Ultimately, the move took place. The respondent asserts that it was only on condition that certain amendments to the separation agreement were agreed to. Negotiations ensued, and in due course it appeared that counsel had agreed, through correspondence, to the terms of an amending agreement.

[7] The apparent amending agreement, as reflected in the correspondence between counsel, contained the following provisions:

2.5 By this Amending Agreement, the parties wish to modify in part their rights and obligations with respect to the custody, access and support of the Child. This Amending Agreement does not modify the parties' existing joint custodial arrangement which shall continue.

5.2 Olivia will reside primarily with Kelly in Burlington, Ontario.

5.3 Olivia will reside with Joshua on alternate weekends, beginning Friday at 6:00 p.m. until Monday when school/camp resumes. In the event the weekend falls on a holiday weekend, the drop-off time shall be extended until Tuesday when school/camp resumes. [page620]

5.24 If the parties alone cannot resolve a conflict with respect to custody and access, they agree to seek appropriate, competent assistance. The matter will be referred for mediation/arbitration with Laurie Stein to assist with parenting disputes as they may arise. The parties shall sign a mediation/arbitration agreement appointing Ms. Stein within 30 days of execution of this Amending Agreement.

[8] The applicant, notwithstanding the apparent agreement of counsel, took the position that no agreement had been reached. She applied to the Ontario Court of Justice for an order granting her sole custody of Olivia, with reasonable and generous access to the respondent.

[9] The respondent brought a motion seeking an order for summary judgment dismissing the applicant's application, on the ground that the court lacked jurisdiction to hear the matter. He contended that the parties had entered into an amending separation agreement, and by virtue of the mediation/ arbitration provision the parties had agreed to, they had conferred jurisdiction on a mediator/arbitrator to determine any issues regarding custody and access, thereby depriving the court of jurisdiction.

[10] The applicant contended that the parties had not entered into an amending agreement, and in any event the court had jurisdiction pursuant to art. 20.2 of the original separation agreement and the provisions of the Children's Law Reform Act, R.S.O. 1990, c. C.12. If the parties had conferred on a mediator/arbitrator the power to entertain the dispute, the court was entitled to ignore that provision if it was in the best interests of the child to do so, by virtue of s. 56(1) of the Family Law Act, R.S.O. 1990, c. F.3.

[11] The matter came before Justice O'Connell of the Ontario Court of Justice on March 7, 2013. She delivered judgment on March 26, 2013. She granted the respondent's motion for summary judgment, holding that the parties had entered into a valid amending separation agreement through correspondence between counsel. She did not dismiss the application, she stayed it. She held that the mediation/arbitration clause was valid, notwithstanding that it named Laurie Stein as the mediator/ arbitrator, and Ms. Stein had declined to act. She held that it was open to the parties to appoint Gary Direnfeld or Jacqueline Vanbetlehem, as had been agreed between counsel.

[12] Justice O'Connell considered whether she should set aside the amending agreement, or at least the mediation/ arbitration clause, pursuant to s. 56(1) of the Family Law Act. However, she held that it would not be in Olivia's best interests to do so. She stated that the mediator/ arbitrator would have the power to determine whether or not an assessor should [page621] be appointed, and to determine the matter quickly rather than causing further delay.

[13] After the issuance of the decision of Justice O'Connell, the parties executed an amending separation agreement dated April 23, 2013. It contains the terms I reproduced above.

[14] Since Laurie Stein had declined to act as a mediator/ arbitrator, the parties agreed to utilize the services of Gary Direnfeld. They executed a written "MED/ARB Agreement", appointing Gary Direnfeld as the mediator/arbitrator. It contains certain provisions as follows:

2. The parents wish to retain the services of Gary Direnfeld, MSW, RSW, as Mediator/Arbitrator (may subsequently be referred to as Service Provider), to assist them in settling the following dispute(s): Parenting

3. Med/Arb involves two components:

Non-Decision Making (Mediation): The Service Provider shall attempt to resolve issues through facilitation, consultation, coaching and education, all being non-decision making functions;

Decision Making (Arbitration): If it is apparent to the Service Provider that the continued similar efforts are unlikely to resolve the issue(s), then to resolve the dispute, the Service Provider shall arbitrate and as set out in the decision-making process of this Agreement.

13. The parents agree that the Service Provider can perform the function of Med/Arb, including both the non-decision making and decision-making components as described above. They further agree that the fact that the Service Provider performs the non-decision making component involving mediation, facilitation and conflict resolution, does not disqualify him from arbitrating the same issues. In this regard, the parents waive s.35 of The Arbitration's Act, S.O. 1991, c.17. The agreed to term of service stated below will be upheld notwithstanding that facilitated negotiation is part of the process and with the understanding that in other contexts, like mediation, for example and if there is no court order, a parent may withdraw from the process at any time. As such, neither parent can unilaterally opt out of service at any stage in the Med/Arb process.

14. The laws of Ontario and Canada shall apply to any arbitration conducted pursuant to this Agreement.

15. The Arbitrator is Gary Direnfeld, MSW, RSW.

16. If an issue remains unresolved after a reasonable effort in the process prior to arbitration, or if one parent chooses not to participate in the process prior to arbitration, and the Service Provider believes that further similar efforts are unlikely to be productive, or that the time constraints of the issue presented do not allow for further similar efforts, the Service Provider will processed to arbitrate the issue in accordance with the arbitration provisions of this Agreement and with due consideration that some matters may require an expeditious decision such as in the case of an imminent exchange of the child(ren) in view of an access period. The decision is binding upon both parents regardless of whether or not they decide to have the Award incorporated into a Court Order and will remain in effect for 10 years or until the child reaches the age of majority. [page622]

17. In the event one parent maintains that an issue is outside of the mandate and/or scope of the Service Provider's authority, the Service Provider will determine the matter taking into account the submissions of each parent.

18. If the Service Provider is to arbitrate the issue, he will advise the parents in writing that they are now engaged in arbitration on that issue. The time and place of the arbitration hearing and/or the time for submissions shall be provided in writing. The arbitration may proceed at that time and/or as per the time-line as notified, even if one parent fails to appear at the previously designated time and place, if one parent fails to provide his/her submissions in the time-line provided, and/or if one parent does not provide the sufficient retainer.

19. If one parent is acting in an obstructionist manner as deemed by the Service Provider, or is not cooperating or deemed to be not participating, or had unilaterally withdrawn, it is understood by that parent, that the arbitration process can continue with or without due notification at the discretion for the Service Provider, knowing that that party is in default of the provision to cooperate. Further and by way of a parent's non-cooperation, the Service Provider on the basis of the only parent participating may provide an Arbitration Award. Such circumstances cannot be used as grounds for appeal or grievance by the non-cooperative parent.

20. Given participation of both parents, all communication during the arbitration phase will be 3-way, be it by conference call, e-mail, fax or in a meeting. Submissions (verbal and/or written) and reply submissions will be made available directly to the Service Provide (who then provides same to the parents) in the time-line determined by the Service Provider, previously indicated to the parents in writing. Time-sensitive issues will require a short time-line as determined by the Service Provider.

21. In his role as Arbitrator, the Service Provider may rely on any information, both written and verbal, that the parents have disclosed (including written records) during attempts to resolve the issues up to that point in the process prior to the commencement of arbitration, during the non-decision making component. Notwithstanding, the parents shall provide full submissions, either verbal or in writing, and not assume any prior information provided will be taken into account in the decision-making process.

22. The parents may attend the arbitration with or without counsel. If they choose to attend without counsel, they are waiving their right to do so. This must be determined prior to arbitrating the matter subject to arbitration. In most cases, unless otherwise agreed at the time, Arbitration will proceed by way of written submission and counter-submission, or by oral submission with both parents present. This process will be determined by the Service Provider alone.

[15] The relationship between the parties since the appointment of the mediator/arbitrator has been rocky, to say the least. Each party has made allegations against the other. Most significantly, the respondent has alleged that the applicant has engaged in a campaign to alienate Olivia from him. Among other things, it has been alleged that the applicant has encouraged Olivia to not want to see her father. The respondent has alleged that the applicant has arranged activities to occur during times [page623] when Olivia would be scheduled to be with her father. When the respondent insists on visits with Olivia, he is then made out to be the "bad guy".

[16] The correspondence, including e-mails, between Mr. Direnfeld and the parties discloses that Mr. Direnfeld, during mediation sessions, has come to have considerable sympathy with the respondent's position. He has tried to encourage the applicant to adjust activities and visits so that they do not conflict with Olivia's time with her father.

[17] For her part, the applicant has taken the position that the respondent has been unreasonable in declining to adjust his visiting time with Olivia to accommodate Olivia's activities and visits with the applicant's family. She categorically denies that she has engaged in any alienating behaviour.

[18] Things came to a head on November 12, 2014, during a meeting between Mr. Direnfeld and the two parties. For reasons that are not entirely clear, the applicant had requested that the meeting be recorded. It was recorded, and both parties have filed transcripts.

[19] Mr. Direnfeld asked both parties to outline any concerns. The applicant had what appeared to be some relatively minor concerns regarding vacation and Olivia's dance class, as well as some questions Olivia was asking her. For his part, the respondent put on the table the proposition that Olivia should live with him full-time. To that, the applicant said, "I'm floored right now. I don't even know what to do."

[20] Later, Mr. Direnfeld asked if that meant the respondent was seeking for Olivia to live with him exclusively and not see Mom. The respondent said yes.

[21] During the course of the discussion, Mr. Direnfeld made certain statements as follows:

From my perspective, there's more than ample evidence and concern to demonstrate that knowingly, unknowingly, inadvertently, intentionally, you're undermining the relationship of your daughter with her father. That's a real concern.

It's your daughter's right to have that relationship and to not have it undermined. Your, your behaviour consistently works against that. I have suggested to you in the past concern that your daughter will be spoiled, self-righteous. What can I get? What's in it for me? Never having met your daughter, these things are built in structurally to these situations where the daughter's needs are put over and above important relationships in their life. The worker -- I never talked with Barbara prior to October 22nd. I do not know this woman. Her observation is your daughter is a spoiled, little princess. It's consistent with what the concerns are I would have and that I've relayed to you -- maybe different words. That's an outcome of your parenting at this point. [page624]

I will absolutely entertain Josh's request that Olivia go live with him while you sort things out for yourself.

My concern is you do have a spoiled princess for a daughter. She's, she's been spoiled. Kids who are spoiled learn how to manipulate, and learn how to manipulate more and more.

So at, at some point in time, persons like myself, the judge, the assessors, the Children's Aid, we do have to say, you know what, no more wolf, no more wolf period. We're gonna take this child from this parent, put the child with the other parent and our, and our options are no access, supervised access, therapeutic access. Those are the options and I will entertain that. You're going to have to sort out how you're going to address that. I'm not gonna make a ruling today. I'm not going to address it today, but I am going to put this -- I am gonna table this for arbitration. Josh is asking, forthrightly, can my daughter come and live with me?

But I'm not gonna delay this. This isn't gonna continue because there is too long a history. So I'm absolutely gonna entertain it.

But this is escalating. So between now and when, whenever I arbitrate this, you may want to consider that counselling for yourself. You may want to look at how can -- you know, if, if Gary is saying that I've got a, a part in this, what is it I can do? How can I manage my daughter differently that mitigate these concerns such that if it's before Gary as arbitrator, I reduce concern that Gary might make a decision that changes the custodial arrangement?

You are riding a sinking ship. You need to take this very seriously now. Not -- I'm not suggesting that you haven't taken it seriously. You need to take it seriously in a different way. That's where my thinking is right now -- very transparent, very open.

But I do want to set this down for arbitration early in the new year. This is November 12th and we give you ample time to sort these things out.

Ms. McClintock: What's -- can you clarify what exactly is being arbitrated?

Mr. Direnfeld: The residential arrangement for your daughter -- who she lives with.

You know, behaviour speaks louder. It's not gonna happen anymore by one of two ways: an arbitration hearing and I change the residential plan, or you [page625] change. I have educated, coached, begged, cajoled you. I'm not gonna do any of that anymore. Now I'm gonna arbitrate and you'll either do it or you won't. Is that understandable? And I don't say that facetiously or aggressively or -- I do want you to appreciate that. You're actively teaching your daughter to disrespect her father.

[22] Following the meeting, Mr. Direnfeld forwarded a letter to both parties. He identified the issue raised by the respondent as follows:

Change of the residential arrangement with Olivia residing exclusively with father, no access to mother until such time as she can support father/daughter relationship.

[23] Mr. Direnfeld identified the issue for arbitration as follows:

At issue for arbitration is the residential schedule and daughter-mother access in view of concern of mother at least not supporting, if not undermining the daughter-father relationship.

[24] Mr. Direnfeld concluded the letter by listing seven points. The seventh point was as follows:

7. That to mitigate the need for this hearing, I would expect Kelly to support and foster the daughter-father relationship; demonstrate that as opposed to only taking time from father's access, that she provide opportunity for greater access; that she set boundaries with their daughter mitigating allegations that create disharmony and that continue to be unverified and that she consider counselling for herself with a counsellor who would be apprised of concerns originating with herself and who would seek to hold her accountable to setting such boundaries with her daughter and facilitate the daughter-father relationship.

[25] Daniel Hall, the applicant's then counsel, responded to Mr. Direnfeld's letter on November 19, 2014. Among other things, he stated as follows:

If I am correct in understanding your letter, it is your intention to arbitrate on the issue raised by Mr. Karam, which is his request to change the residential arrangement of Olivia and have Olivia reside exclusively with him, and that there be no access to my client until such time as she can support the father/daughter relationship.

Please be advised that my client's position is that you have no authority to arbitrate this issue, as the issue of a change of residence and termination of access is beyond the scope of the arbitration.

I wish to advise you and Mr. Stangarone that if you determine that you do have the authority to arbitrate this issue, my client's instructions are to proceed to court to get a judicial determination of the matter. I would therefore request that you not schedule an arbitration hearing to allow sufficient time for the matter to be determined by the court.

[26] Mr. Direnfeld responded the same day. Among other things, he stated: [page626]

To add, if it should come to pass that I do arbitrate in the direction of a change of custody/access and respecting the PC agreement, such change could be for an interim period to restore and bring balance to the father-daughter relationship, thus maintaining the integrity of the PC agreement.

Ultimately though, should this matter return to court and in the absence of change with regard to the behaviour of Ms. McClintock, you must know what intervention I would be supporting if called to court. This of course could lead to a protracted and expensive process for both parents.

At the end of the day, much rides with Ms. McClintock to hopefully heed guidance provided and maintain the integrity of the father-daughter relationship.

[27] Both parties requested Mr. Direnfeld to issue a ruling on whether he had jurisdiction to arbitrate the dispute. On December 1, 2014, Mr. Direnfeld ruled as follows:

The matter of the residential schedule and changes thereto is within the jurisdiction of the mediator/arbitrator.

[28] By e-mail dated December 8, 2014, Mr. Direnfeld set the matter for a day-long arbitration on Tuesday, January 20, 2015. Mr. Hall responded by e-mail on December 11, 2014, as follows:

I apologize for not responding to your e-mail of December 1. However, I needed to have had the opportunity of meeting with my client in order to discuss her options and obtain her instructions.

We cannot agree to a commencement date for arbitration of January 20 for these reasons:

Firstly, I have already booked a holiday and will be out of the country from January 16 to January 26.

Secondly, I will need adequate time to prepare. I will need to interview witnesses and prepare my case.

Thirdly, if witnesses are going to be called, this arbitration could certainly take five days or more and I will need to clear my calendar.

Fourthly, Olivia's views need to be elicited by a third party professional. This should be done before the commencement of the arbitration.

Fifthly, my client is still pondering as to whether or not she wishes me to argue the jurisdiction issue.

Notwithstanding the above, if you are going to insist that an arbitration date be selected, I would request that a date be tentatively set for some time in March.

[29] Mr. Stangarone responded the same date as follows:

We are not agreeable to delaying this matter until March. This is clearly a delay tactic on the part of the mother. I request a conference call with the arbitrator where the arbitrator can determine the arbitral process. We believe that a one day arbitration is sufficient. [page627]

[30] Mr. Direnfeld responded by e-mail dated December 16, 2014. In short, he stated that the matter would proceed on January 20, 2015.

[31] Mr. Hall responded by letter the next day, December 17, 2014. He enclosed a copy of his Air Canada flight itinerary, which showed that he would be leaving on January 16 and not returning until January 25. The trip was booked on November 14. He stated:

You are therefore forcing my client to attend an arbitration hearing in which Mr. Karam is attempting to change Olivia's residence without counsel, which, in my respectful submission, is unfair, particularly since there is no inherent urgency for you to deal with issue.

[32] Mr. Direnfeld responded by e-mail dated December 17, 2014. Among other things, he stated:

Hence, while not a dire emergency, this is still a situation that has gone on long enough where Mr. Karam continues to be in a compromised position as father.

To that end and having served what I view as reasonable notice, this arbitration shall continue as set out.

[33] After this application was served, Mr. Direnfeld suspended the holding of the arbitration pending the outcome of these proceedings.

Submissions

[34] Ms. Haber, counsel for the applicant, submits that the mediator/arbitrator has no jurisdiction to arbitrate this dispute.

[35] Ms. Haber submits that this dispute must be resolved by a court. Fundamentally, it involves a change to the basic residential and access provisions of the separation agreement and, pursuant to art. 20 of the separation agreement, a variation can only be made as a result of a material change in circumstances, and then only by a court.

[36] Ms. Haber submits that the mediation/arbitration provision of the amending separation agreement does not apply to this dispute. Ms. Haber submits that, having regard to the agreement and amending agreement as a whole, the mediation/ arbitration provision can only be intended to apply to relatively minor aspects of the custodial and access arrangements, such as vacation times and the like. She submits that the words "parenting disputes" in the amending separation agreement, and the word "parenting" in the Med/Arb agreement, imply relatively minor issues are to be subject to mediation/ arbitration. However, she submits that something as fundamental as the basic residential arrangements and access can only be regarded [page628] as foundational, and can only be varied as a result of a material change in circumstances. This can only be done in court.

[37] In the alternative, Ms. Haber submits that Mr. Direnfeld's appointment as the mediator/arbitrator must be terminated, because he has acted unfairly and his conduct has given rise to a reasonable apprehension of bias.

[38] Ms. Haber submits that it is clear from the transcript of what went on in November 12, 2014 that Mr. Direnfeld has prejudged the dispute, and has preordained what remedy he is likely to award. This is compounded, Ms. Haber submits, by Mr. Direnfeld's conduct after November 12, 2014. He fixed a single day for the arbitration, by notice that was clearly insufficient having regard to the magnitude of the dispute. He refused to change the date even though counsel for the applicant was not going to be in the country. In his correspondence, he made statements that clearly suggested that he had made up his mind what he is likely to do.

[39] When all of these events are considered cumulatively, there is, at the very least, a reasonable apprehension of bias arising from the mediator/arbitrator's conduct. He has also not acted equally and fairly, as required by the Arbitration Act, 1991, S.O. 1991, c. 17.

[40] In the further alternative, Ms. Haber submits the mediator/arbitrator must be given clear direction as to the conduct of the hearing, if it is to take place before Mr. Direnfeld.

[41] Ms. Haber relies particularly on Hercus v. Hercus, [2001] O.J. No. 534, [2001] O.T.C. 108 (S.C.J.); and Starr v. Gordon, 2010 ONSC 4167, [2010] O.J. No. 3223, 88 R.F.L. (6th) 54 (S.C.J.).

[42] Mr. Stangarone, counsel for the respondent, submits that the mediator/arbitrator has jurisdiction to arbitrate this dispute.

[43] Mr. Stangarone submits that the matter is res judicata. Justice O'Connell, in her decision, has already ruled that this matter is within the jurisdiction of the mediator/arbitrator, and it is not appropriate for this court to revisit that conclusion. In any event, it is clear from an examination of the separation agreement and the amending separation agreement that the parties have conferred on the mediator/arbitrator the authority to arbitrate any "conflict with respect to custody and access". In the circumstances, this pre-empts any attempt to have the matter litigated in court. Where the parties have chosen to have a matter dealt with by arbitration, it is not open to them to resile from that agreement and attempt to have the matter litigated in court.

[44] Mr. Stangarone submits that the mediator/arbitrator has not acted unfairly, and there is no reasonable apprehension of bias. [page629]

[45] Mr. Stangarone submits that the issue as to the alleged alienation of Olivia from her father is one of long standing, and the applicant is well aware of the issue. A request that the residential arrangements for Olivia should be reconsidered is something that naturally follows from the concern, and is something the mediator/arbitrator is well-equipped to deal with. Nothing said or done by the mediator/arbitrator is sufficient to raise a concern about prejudgment of the issue. Mr. Direnfeld is very experienced, and he is well able to separate his adjudicative role from tentative perceptions that he may have formed during the mediation process. Having regard to the circumstances, it was well within his discretion to fix the arbitration date as he did, and it was reasonable for him to conclude that the applicant was simply attempting to delay the hearing of the matter, and thus expedition was required.

[46] Mr. Stangarone submits that to the extent that the applicant complains of a reasonable apprehension of bias, it was incumbent on her to send the mediator/arbitrator a statement of the grounds, as required by s. 13(3) of the Arbitration Act, 1991. She did not do so, and is thus precluded from raising the issue now.

[47] Mr. Stangarone particularly relies on Rosenberg v. Minster (2014), 2014 ONSC 845, 119 O.R. (3d) 27, [2014] O.J. No. 647 (S.C.J.); McAlister v. Gallant, 2012 ONCJ 565, [2012] O.J. No. 4201, 30 R.F.L. (7th) 487 (C.J.); Mungo v. Saverino, [1995] O.J. No. 3021, 58 A.C.W.S. (3d) 175 (Gen. Div.); Cawthorpe v. Cawthorpe, 2010 ONSC 1389, [2010] O.J. No. 2054, 86 R.F.L. (6th) 225 (S.C.J.); R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84; and L. (R.A.) v. R. (R.D.), [2007] A.J. No. 163, 2007 ABQB 79.

Analysis

[48] There is no dispute that the mediation/arbitration in issue here (or at least the arbitration phase of it) is a "family arbitration" as contemplated in the Arbitration Act, 1991 and the Family Law Act. As it happens, none of the provisions of the Family Law Act, as they relate to family arbitrations, are relevant here. I have attached as an appendix to these reasons the relevant provisions of the Arbitration Act, 1991.

[49] As noted earlier, mediation/arbitration is of somewhat recent origin. Ordinarily, if the parties are to engage in both mediation and arbitration, they will feel more comfortable if a different person is used to perform each function. That is because the two functions are instinctively considered to be mutually exclusive. As a general proposition, that is reflected in s. 35 of the Arbitration Act, 1991, which reads as follows: [page630]

35. The members of an arbitral tribunal shall not conduct any part of the arbitration as a mediation or conciliation process or other similar process that might compromise or appear to compromise the arbitral tribunal's ability to decide the dispute impartially.

[50] Section 35 of the Arbitration Act, 1991 may be waived, as it was here. If it is, it is open to the parties to use the same person to perform both functions.

[51] Mediation/arbitration is used with some frequency in the labour relations field, where arbitration has a long history. Mediation in that field also has a long history. The same people are often used as mediators and arbitrators. The parties, who utilize these people, have developed a comfort level in many of them acting as both mediators and arbitrators at the same time. In the labour relations field, the practice has attracted legislative approbation: see Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 50; Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, s. 50.2(9); and Police Services Act, R.S.O. 1990, c. P.15, s. 122(2).

[52] Mediation/arbitration has come to be used somewhat more frequently than in the past in the family law field, but by a somewhat different route.

[53] Parties who enter into separation agreements often appoint a "parenting coordinator", who will assist in resolving day-to-day issues that come up in parenting children. Parenting coordinators tend to be social workers or psychologists who have experience in family law issues. When appointed, they can only assist the parties through logic and persuasion to make accommodations.

[54] In some cases, it has been thought to be beneficial to give a parenting coordinator the right to make decisions where the parties cannot agree. In such a case, the person can make binding decisions in addition to using his or her powers of persuasion to assist the parties.

[55] There are two issues:

(a) does the mediator/arbitrator have jurisdiction to arbitrate this dispute;

(b) is there a reasonable apprehension of bias, and/or has the mediator/arbitrator acted unfairly?

I will consider each issue in turn.

(a) Does the mediator/arbitrator have jurisdiction to arbitrate this dispute?

[56] As noted earlier, the applicant argues that this dispute involves fundamental issues -- where the child will live and [page631] what access, if any, the applicant will have to her. She submits that such issues are governed by art. 20 of the original separation agreement and must be resolved in court, rather than by the mediator/arbitrator who has jurisdiction over "parenting disputes". Such disputes, she submits, are minor in nature, unlike the disputes in issue here.

[57] With respect, I disagree.

[58] When the original separation agreement and the amending agreement are read together, they can coexist. The mediation/ arbitration clause applies to all incidents of custody and access, except for the issue of joint custody which the parties have mandated to continue. Article 20 of the original agreement will continue to apply and can override the mediation/ arbitration clause if the court, properly seized of an application under the Children's Law Reform Act, decides it is in the best interest of the child to do so.

[59] There are three features that compel this conclusion:

(a) art. 5.24 of the amending agreement provides for the resolution of a "conflict with respect to custody and access";

(b) the term "parenting disputes" is used; those words are ordinarily to be interpreted broadly, and can include virtually any issue involving custody and access: see Rosenberg v. Minster, supra;

(c) by art. 2.5 of the amending agreement, the parties have withdrawn from the amending agreement one aspect of custodial issues: the last sentence of art. 2.5 reads: "This amending agreement does not modify the parties' existing joint custodial arrangement which shall continue."

[60] The parties have agreed that joint custody of Olivia will continue. Joint custody has to do with decision making. The residential arrangements are something different. Since the parties have chosen to exclude, specifically, the issue of joint custody, by inference they have left open all other aspects of custody and access, particularly the issues of residential arrangements and access.

[61] That is not to say art. 20 of the original agreement no longer applies to custody and access disputes. It is always open to either party to commence an application under the Children's Law Reform Act for an order respecting custody of or access to a child. If such an application is brought, it is open to the court to disregard any provision of a separation agreement if it is in the best interests of a child. Section 56(1) of the Family Law Act provides as follows: [page632]

56(1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

[62] This, in fact, is what happened in the proceedings that led up to the decision of Justice O'Connell. The applicant brought an application under the Children's Law Reform Act for custody of Olivia. Justice O'Connell considered whether she should apply s. 56 of the Family Law Act and entertain the application notwithstanding what she found was a valid mediation/arbitration clause that was in effect. She decided to defer to mediation/arbitration based on her assessment of the best interests of Olivia. However, she did not dismiss the application, she stayed it.

[63] I make no comment on whether it would be open to a party, in other circumstances, to resurrect the application before Justice O'Connell or commence a new one. In either event, it would be open to the court to consider whether the best interests of Olivia, at that time, require that the court entertain the matter rather than deferring to the mediation/ arbitration procedure.

[64] In the absence of an order of a court, determining that this particular matter ought to be heard by the court rather than the mediator/arbitrator, I conclude that this matter is properly before the mediator/arbitrator.

[65] Accordingly, the mediator/arbitrator has jurisdiction to entertain the dispute that is before him.

(b) Is there a reasonable apprehension of bias, and/or has the mediator/arbitrator acted unfairly?

[66] The classic test to be applied in determining whether there is a reasonable apprehension of bias is set out in the dissenting reasons of de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118. While in dissent, the test he set out was not disputed by the majority of the court, and has been quoted with approval in virtually every subsequent case involving alleged bias, including cases in the Supreme Court of Canada: see Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, [2003] S.C.J. No. 50; and R. v. S. (R.D.), supra.

[67] The appropriate test was set out by de Grandpré J., as follows [at pp. 394-95 S.C.R.]:

The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person viewing the matter realistically and [page633] practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly."

I can see no real difference between the expressions found in the decided cases, be they "reasonable apprehension of bias", "reasonable suspicion of bias", or "real likelihood of bias". The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".

This is the proper approach which, of course, must be adjusted to the facts of the case. The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in the light of its experience and of that of its technical advisers.

The basic principle is of course the same, namely that natural justice be rendered. But its application must take into consideration the special circumstances of the tribunal.

(Emphasis added)

[68] As stated by de Grandpré J., one of the considerations is the "special circumstances of the tribunal". In this case, the tribunal is a mediator/arbitrator, and he has been constituted by agreement. It must be concluded that the parties, in agreeing to mediation/arbitration, would understand the nature of the process of mediation/arbitration. The informed person, in deciding whether there is a reasonable apprehension of bias, would also understand the nature of the process of mediation/arbitration.

[69] In order to effectively mediate, the person appointed must engage in a process that has a good deal of informality. Mediative techniques include persuading, arguing, cajoling and, to some extent, predicting. Mediation is a process to secure agreement, if possible. All of those techniques, as well as others, will come into play in trying to secure agreement.

[70] If the mediator/arbitrator must move to the arbitration phase, it cannot be expected that he or she can entirely cleanse the mind of everything learned during the mediation phase, and of every tentative conclusion considered, or even reached, during the mediation phase. However, at a bare minimum the parties are entitled to expect that the mediator/arbitrator will be open to persuasion, and will not have reached firm views or conclusions.

[71] Thus, the issue before me is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would think that it is more likely than not that Mr. Direnfeld, whether consciously or unconsciously, would not decide fairly. Regrettably, an informed person would think it is more likely than not that Mr. Direnfeld would not [page634] decide fairly. In coming to his or her conclusion, the informed person would take into account the nature of the tribunal.

[72] The issue put before Mr. Direnfeld was whether Olivia should live with the respondent rather than the applicant, and whether the applicant should be deprived of all access, for at least some period of time. There were certain significant factual disputes, including the question of whether the applicant had engaged in any alienating behaviour. This was strongly disputed by the applicant. In addition, there was an issue as to whether the applicant had interfered with Olivia's visits with the respondent by scheduling activities during times she would otherwise visit with the respondent.

[73] It must have been understood that during the arbitration phase, the mediator/arbitrator would have to resolve contentious factual disputes. The only realistic way to do so would be by hearing evidence at the arbitration.

[74] In addition to resolving factual disputes, the mediator/ arbitrator would have to decide whether it would be necessary or appropriate to change the residential arrangements and potentially bar access visits with the applicant, at least for some period of time.

[75] While the mediator/arbitrator would undoubtedly have had discussions with the parties about these issues, and would have formed some tentative impressions or even conclusions about them, it was important that he remain open to persuasion and refrain from expressing strong views that might disclose a predisposition to decide one way or the other.

[76] A number of excerpts from the transcript of the meeting that occurred on November 12, 2014 are problematical. Of those excerpts, a number would strongly suggest that the mediator/ arbitrator had already made up his mind on issues that were very contentious. While all of the excerpts are problematical, the two excerpts of primary concern are as follows:

From my perspective, there's more than ample evidence and concern to demonstrate that knowingly, unknowingly, inadvertently, intentionally, you're undermining the relationship of your daughter with her father. That's a real concern.

You know, behaviour speaks louder. It's not gonna happen anymore by one of two ways: an arbitration hearing and I change the residential plan, or you change. I have educated, coached, begged, cajoled you. I'm not gonna do any of that anymore. Now I'm gonna arbitrate and you'll either do it or you won't. Is that understandable? And I don't say that facetiously or aggressively or -- I do want you to appreciate that. You're actively teaching your daughter to disrespect her father. [page635]

[77] These excerpts, as well as others, strongly suggest that the mediator/arbitrator had already made up his mind that the applicant had engaged in the alienating behaviour that she disputed, and that he had made up his mind as to what he would do. The words "It's not gonna happen anymore by one of two ways: an arbitration hearing and I change the residential plan, or you change" can hardly admit of much doubt as to their meaning to an informed person who has thought the matter through ? Mr. Direnfeld has already made up his mind, and he will not decide fairly.

[78] The subsequent conduct of the mediator/arbitrator serves only to heighten the concern. He gave notice of a single day of arbitration. The notice was quite short. When counsel for the applicant said he would be out of the country, the arbitrator refused to change the date, even though counsel was only suggesting a delay of two months. Olivia had been residing with her mother for nine years, and it is inconceivable that a delay of two months was unreasonable or could not have been accommodated. However, the mediator/arbitrator insisted on proceeding on the date he had fixed, even though the applicant would be without counsel and the mediator/arbitrator himself conceded that there was no dire emergency. During the correspondence about the arbitration process, Mr. Direnfeld continued to make statements suggesting he had made up his mind, including, "Ultimately though, should this matter return to court and in the absence of change with regard to the behaviour of Ms. McClintock, you must know what intervention I would be supporting if called to court."

[79] In my view, this unseemly rush to judgment would only heighten the concern of an informed person, and cause that informed person to think that it was more likely than not that Mr. Direnfeld would not decide the matter fairly.

[80] For these reasons, I conclude that the applicant has shown that there is a reasonable apprehension of bias.

[81] For somewhat the same reasons, I conclude that the mediator/arbitrator has not treated the applicant fairly, as required by s. 19(1) of the Arbitration Act, 1991.

[82] Furthermore, he did not give the applicant an opportunity to present her case as required by s. 19(2) of the Arbitration Act, 1991. Having regard to what was at stake, it was important that the mediator/arbitrator give each party a full opportunity to present his or her case. That opportunity must be adequate to the circumstances. This was not a case where some minor adjustment in visiting dates or holiday periods was being proposed. There was potentially going to be a fundamental change in the [page636] residence of the child, and could potentially result in the barring of access to the applicant for at least some period of time.

[83] It was important, having regard to what was at stake, that each party be given an adequate period of time in which to prepare his or her case; an adequate number of days of hearing to present the case; and the opportunity to have counsel. Mr. Direnfeld failed in all three respects.

[84] I do not agree with the respondent's argument that because the applicant did not comply with s. 13(3) of Arbitration Act, 1991, she is barred from bringing this application.

[85] While s. 13 of the Arbitration Act, 1991 sets out a procedure to be followed, I do not regard it as a mandatory pre-condition to the commencement of proceedings based on a reasonable apprehension of bias, particularly where the situation develops as quickly as it did here. Bias in a tribunal results in a loss of jurisdiction, and procedural requirements cannot prevent the court from interfering to prohibit a tribunal from acting without jurisdiction.

[86] Furthermore, pursuant to s. 15(1) of the Arbitration Act, 1991, an arbitrator may be removed where the arbitrator does not conduct an arbitration in accordance with s. 19, which requires that the arbitrator act fairly. Section 15 does not require that the same notice under s. 13(3) be given where s. 19 has been violated. In this case, the arbitrator has not acted fairly, on grounds that overlap to a large extent with those that relate to the bias issue.

[87] For the foregoing reasons, I have concluded that the arbitrator must be removed. In the circumstances, he must be removed not only with respect to the particular arbitration that is to be conducted, but he must be removed as the mediator/arbitrator under the agreement. Where there is a reasonable apprehension of bias and he has not acted fairly, it would not be appropriate to leave him in place.

[88] With respect to the specific arbitration that is to occur, I think it should be conducted by an arbitrator with legal training, preferably an experienced family law practitioner who can hear the matter fairly quickly. If the parties cannot agree upon the identity of an arbitrator for that purpose, I invite counsel to each supply me with the names of three proposed arbitrators within ten days, and I will select one.

[89] With respect to a new mediator/arbitrator under the agreement, once again if the parties cannot agree I will accept submissions from counsel, who will each propose three names within ten days, and I will select one. [page637]

[90] I will entertain brief written submissions with respect to costs, not to exceed three pages, together with a costs outline. Ms. Haber will have five days to file submissions, and Mr. Stangarone will have five days to respond. Ms. Haber will have three days to reply.

Application allowed.

APPENDIX -- EXCERPTS FROM THE ARBITRATION ACT,

1991

3. The parties to an arbitration agreement may agree, expressly or by implication, to vary or exclude any provision of this Act except the following:

4. In the case of an arbitration agreement other than a family arbitration agreement,

i. subsection 5(4) ("Scott v. Avery" clauses),

ii. section 19 (equality and fairness),

iii. section 39 (extension of time limits),

iv. section 46 (setting aside award),

v. section 48 (declaration of invalidity of arbitration),

vi. section 50 (enforcement of award).

2. In the case of a family arbitration agreement,

i. the provisions listed in subparagraphs 1 i to vi,

ii. subsection 4(2) (no deemed waiver of right to object),

iii. section 31 (application of law and equity),

iv. subsections 32(3) and (4) (substantive law of Ontario or other Canadian jurisdiction), and

v. section 45 (appeals).

6. No court shall intervene in matters governed by this Act, except for the following purposes, in accordance with this Act:

7. To assist the conducting of arbitrations.

8. To ensure that arbitrations are conducted in accordance with arbitration agreements.

9. To prevent unequal or unfair treatment of parties to arbitration agreements.

10. To enforce awards.

13(1) A party may challenge an arbitrator only on one of the following grounds: [page638]

1. Circumstances exist that may give rise to a reasonable apprehension of bias.

2. The arbitrator does not possess qualifications that the parties have agreed are necessary.

(3) A party who wishes to challenge an arbitrator shall send the arbitral tribunal a statement of the grounds for the challenge, within fifteen days of becoming aware of them.

(5) If the challenged arbitrator is not removed by the parties and does not resign, the arbitral tribunal, including the challenged arbitrator, shall decide the issue and shall notify the parties of its decision.

(6) Within ten days of being notified of the arbitral tribunal's decision, a party may make an application to the court to decide the issue and, in the case of the challenging party, to remove the arbitrator.

15(1) The court may remove an arbitrator on a party's application under subsection 13(6) (challenge), or may do so on a party's application if the arbitrator becomes unable to perform his or her functions, commits a corrupt or fraudulent act, delays unduly in conducting the arbitration or does not conduct it in accordance with section 19 (equality and fairness).

(2) The arbitrator is entitled to be heard by the court if the application is based on an allegation that he or she committed a corrupt or fraudulent act or delayed unduly in conducting the arbitration.

(3) When the court removes an arbitrator, it may give directions about the conduct of the arbitration.

17(1) An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement.

(3) A party who has an objection to the arbitral tribunal's jurisdiction to conduct the arbitration shall make the objection no later than the beginning of the hearing or, if there is no hearing, no later than the first occasion on which the party submits a statement to the tribunal.

(5) A party who has an objection that the arbitral tribunal is exceeding its authority shall make the objection as soon as the matter alleged to be beyond the tribunal's authority is raised during the arbitration.

(7) The arbitral tribunal may rule on an objection as a preliminary question or may deal with it in an award. [page639]

(8) If the arbitral tribunal rules on an objection as a preliminary question, a party may, within thirty days after receiving notice of the ruling, make an application to the court to decide the matter.

9(1) In an arbitration, the parties shall be treated equally and fairly.

(2) Each party shall be given an opportunity to present a case and to respond to the other parties' cases.

20(1) The arbitral tribunal may determine the procedure to be followed in the arbitration, in accordance with this Act.

22(1) The arbitral tribunal shall determine the time, date and place of arbitration, taking into consideration the parties' convenience and the other circumstances of the case.

(2) The arbitral tribunal may meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or parties, or for inspecting property or documents.

26(1) The arbitral tribunal may conduct the arbitration on the basis of documents or may hold hearings for the presentation of evidence and for oral argument; however, the tribunal shall hold a hearing if a party requests it.

33. The arbitral tribunal shall decide the dispute in accordance with the arbitration agreement and the contract, if any, under which the dispute arose, and may also take into account any applicable usages of trade.

34. The members of an arbitral tribunal shall not conduct any part of the arbitration as a mediation or conciliation process or other similar process that might compromise or appear to compromise the arbitral tribunal's ability to decide the dispute impartially.

45(1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,

(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and

(b) determination of the question of law at issue will significantly affect the rights of the parties.

(2) If the arbitration agreement so provides, a party may appeal an award to the court on a question of law.

(5) The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court's opinion on the question of law, in the case of an appeal on a question of [page640] law, and give directions about the conduct of the arbitration.

(6) Any appeal of a family arbitration award lies to,

(a) the Family Court, in the areas where it has jurisdiction under subsection 21.1 (4) of the Courts of Justice Act;

(b) the Superior Court of Justice, in the rest of Ontario.

46(1) On a party's application, the court may set aside an award on any of the following grounds:

1. A party entered into the arbitration agreement while under a legal incapacity.

2. The arbitration agreement is invalid or has ceased to exist.

3. The award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.

4. The composition of the arbitral tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with this Act.

5. The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.

6. The applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party's case, or was not given proper notice of the arbitration or of the appointment of an arbitrator.

7. The procedures followed in the arbitration did not comply with this Act.

8. An arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias.

9. The award was obtained by fraud.

10. The award is a family arbitration award that is not

enforceable under the Family Law Act.

(4) The court shall not set aside an award on grounds referred to in paragraph 8 of subsection (1) if the party had an opportunity to challenge the arbitrator on those grounds under section 13 before the award was made and did not do so, or if those grounds were the subject of an unsuccessful challenge.

(7) When the court sets aside an award, it may remove the arbitral tribunal or an arbitrator and may give directions about the conduct of the arbitration.

47(1) An appeal of an award or an application to set aside an award shall be commenced within thirty days after the appellant or applicant receives the award, correction, explanation, change or statement of reasons on which the appeal or application is based.

End of Document