Court File and Parties
COURT FILE NO.: FC-10-3015 DATE: 2017/04/11 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Susan Judy Lockman Applicant – and – Luc Gerard Rancourt Respondent
Counsel: Mary Jane Binks, for the Applicant Katherine A. Cooligan, for the Respondent
HEARD: March 30, 2017 at Ottawa
Reasons for Decision
ENGELKING J.
[1]
Reasons for Decision
This is an Application for Judicial Review brought by the respondent, Mr. Rancourt, who is seeking to have the Arbitration Award of Arbitrator Cochrane dated December 30, 2015 set aside. The applicant, Ms. Lockman, is the respondent on the application, which she opposes.
Issues
[2]
Issues
The issues to be determined on the application are:
Was the Respondent/Applicant on Judicial Review, Mr. Rancourt, denied his right to procedural fairness and deprived of the opportunity to present his case and respond to the case of the Applicant/Respondent on Judicial Appeal, Ms. Lockman, at the arbitration hearing on November 3, 4 and 5, 2015, such that the Arbitration Award of Arbitrator Cochrane dated December 30, 2015, should be set aside under s. 46(1)6 of the Arbitration Act;
If so, should Arbitrator Cochrane be removed under ss. 15(1) and 46(7) of the Act and should the issues in dispute be remitted to arbitration with a mutually agreed arbitrator.
3Section 46 of the Arbitration Act provides:
(1) On a party’s application, the court may set aside an award on any of the following grounds:
A party entered into the arbitration agreement while under a legal incapacity.
The arbitration agreement is invalid or has ceased to exist.
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.
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.
The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario Law.
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.
The procedures followed in the arbitration did not comply with this Act.
An arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias.
The award was obtained by fraud.
The award is a family arbitration award that is not enforceable under the Family Law Act 1991, c.17, s.46(1); 2006, c.1, s.1(7). (Emphasis added)
Facts Relevant to the Issues
[4]
Facts Relevant to the Issues
The facts that give rise to this application do not appear to be in dispute. The parties signed Minutes of Settlement in September of 2011 which resolved the issue of child support for their two children, Justin Rancourt, born December 28, 1995, and Catherine Rancourt, born November 8, 1991. At that time, the parties agreed to refer any future dispute(s) regarding child support to arbitration with Carol Cochrane.
5A disagreement subsequently arose with respect to retroactive and prospective child support obligations of Mr. Rancourt and in January of 2015, the parties signed an Arbitration Agreement submitting this dispute to arbitration with Arbitrator Cochrane, agreeing to arbitration dates of February 17 and 18, 2015.
6Less than one month later, Mr. Rancourt sought an adjournment of the arbitration on the basis that he was going to be out of the country on those dates, and on the basis that he might be retaining an expert and he would not be prepared to proceed at that time.
7The arbitration was adjourned by Arbitrator Cochrane peremptory to Mr. Rancourt to June 8, 9 and 10, 2015. Subsequent to the adjournment, Ms. Lockman came to understand that Mr. Rancourt would not be retaining an expert with respect to his income, and determined that she would be required to do so. At a pre-arbitration conference on May 19, 2015, Arbitrator Cochrane adjourned the hearing to November 3, 4 and 5, 2015, again making those dates peremptory to Mr. Rancourt.
8Eight days before the arbitration hearing was scheduled to begin, Mr. Rancourt dismissed his lawyer. In his affidavit sworn on October 31, 2016, Mr. Rancourt indicated that he had had significant concerns about his counsel during the proceedings, and ultimately he came to the conclusion that his lawyer was not prepared to represent him at the arbitration scheduled to commence on November 3, 2015. Essentially, Mr. Rancourt states that he lost confidence in his lawyer, and he was of the view that could not proceed with that lawyer and would need a new one.
9On October 26, 2015, Mr. Rancourt wrote an email to Arbitrator Cochrane indicating that he had fired his lawyer, and was intending to retain a new lawyer but was out of the country so would be doing so upon his return. Mr. Rancourt indicated in his email that “the arbitration session needs to be cancelled until I received [sic] legal advice from my new lawyer”.
10Arbitrator Cochrane responded on the same day by writing to both Mr. Rancourt and counsel for Ms. Lockman, Ms. Binks, forwarding to the latter a copy of the former’s email, and asking Ms. Binks to provide Mr. Rancourt with her client’s position on the requested adjournment.
11On the evening of October 26, 2015, Ms. Binks sent a letter to Mr. Rancourt stating that the matter was scheduled peremptorily to proceed on November 3, 2015. Ms. Binks indicated further: “If you do not attend at the hearing, I will seek an order from Ms. Cochrane that the arbitration proceed on an uncontested basis. Assuming I am successful, I intend to proceed with the arbitration and obtain an order against you in your absence.”
12Mr. Rancourt forwarded a copy of Ms. Binks’ letter to Arbitrator Cochrane, who responded that Ms. Binks’ statement that the dates were peremptory was correct, and that “the decision as to what you wish to do now rests with you”. Mr. Rancourt responded to Ms. Cochrane’s email indicating that his “decision is to definitely postpone this arbitration session until I can receive advice from my new legal counsel”.
13As a result of the contested request for an adjournment, Arbitrator Cochrane wrote a letter to Mr. Rancourt and Ms. Binks dated October 29, 2015, in which she issued her decision on the request for the adjournment. The Arbitrator’s decision is outlined as follows;
Decision
Mr. Rancourt had ample notice of the dates of the hearing. He had legal representation on this matter from the time it began, right up until Monday afternoon of this week. The termination of the solicitor/client relationship on October 26th was at Mr. Rancourt’s initiative.
Under Section 27(3) of the Arbitration Act, it indicates:
“If a party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may, unless the party offers a satisfactory explanation, continue the arbitration and make an award on the evidence before it.”
In my opinion, I have not received a satisfactory explanation from Mr. Rancourt as to why he does not intend to appear at the hearing scheduled for next Tuesday. He has indicated to me that he is out of the country, but has given me no explanation as to why. Mr. Rancourt had many months of advance notice to arrange his work and personal commitments to accommodate the dates established – on consent- and it would appear based upon the limited information that he has shared with me, that he has chosen not to do so.
In the absence of a satisfactory explanation from Mr. Rancourt, the arbitration hearing will proceed on the scheduled date of November 3, 2015. (Emphasis is original).
14Mr. Rancourt responded by email on October 29, 2015, at 8:30 pm to the letter of Arbitrator Cochrane indicating that the reason he could not attend was not because he was out of the country, but because he no longer had a lawyer due to “extensive reasons” relating to what he felt to be his previous lawyer’s “recent incompetencies”, as well as others in the past, stating that he felt he was not being adequately represented. Mr. Rancourt went on to state: “Being out of the country hasn’t enabled me to find a lawyer in time for this hearing unfortunately. You yourself would not attend an arbitration without your legal representation.” Mr. Rancourt did not receive a response to this email.
15According to his evidence, Mr. Rancourt felt he had no option but to attend the arbitration hearing on November 3, 2015, unrepresented, which he did. At the commencement of the hearing, Arbitrator Cochrane outlined the issues identified for a final determination and asked: “Are we ready to proceed today?”, to which Mr. Rancourt responded: “I’m ready, yes, as much as I can, yes”. Arbitrator Cochrane responded: “Thank you. Ms. Binks you’re ready to proceed as well”, to which the latter responded: “Yes, thank you.” (Lines 20 to 25 of the arbitration transcript, Exhibit “K” to the affidavit of Mr. Rancourt sworn on October 31, 2016 at Tab 6 of Volume 2 of the Continuing Record).
16Mr. Rancourt indicated in his evidence that although he had responded yes to that question put to him by Arbitrator Cochrane, he made it clear to her when asked about providing an opening statement, that he was not prepared to represent himself at the hearing and that he felt that he was being pushed into the arbitration without proper legal advice. The exchange upon which Mr. Rancourt relies in this regard is line 18 on page 7 to line 22 on page 9 of the arbitration transcript, which is attached as Exhibit “L” to his affidavit at Tab 6, Volume 2 of the CR, and which was as follows;
THE ARBITRATOR: Before you do that Ms Binks I’ll just ask Mr. Rancourt if he wishes to make his opening statement now or at the start of his case.
You have the opportunity sir as Ms Binks did to indicate your understanding of the issues to be addressed and the nature of the evidence that you intend to lead for me to address and you can identify for me the witnesses that you intend to call.
MR. RANCOURT: Okay, well this is totally unusual for me. I don’t have legal representation right now. I wasn’t given the opportunity to find another lawyer so I feel that I’m being pushed into this without proper legal advice. So I’ll do the best that I can.
THE ARBITRATOR: At the start of this Proceeding sir I asked you if you were ready to proceed and you indicated sir that you were.
MR. RANCOURT: I sent you something mentioning -. – well I’m not sure but mentioning that I wanted to get legal representation but then you, from my understanding of your email that basically I had no choice but to be here from your email and from the email of Mrs. Binks.
THE ARBITRATOR: And just so---
MR. RANCOURT: So I can – sorry.
THE ARBITRATOR: All I was going to say is there was a letter and I think that’s to which your were referring, my correspondence to both you and Ms Binks of October 29, 2015 and that’s the letter in which I outlined the email correspondence I received from you on October 26 th and the follow-up correspondences that were exchanged by email both between yourself and me and from Ms Binks as well, correct?
MR. RANCOURT: Yes, but on that email you basically told me from my understanding that the – you mentioned that given the reason that I was away for not being here which wasn’t correct, it’s not because I was away, it’s because I could not find a lawyer on time. And I think I replied to that and saying – anyway here we are I guess.
THE ARBITRATOR: So just so the record is clear I indicated in that correspondence that the email communication I received from you addressed both the fact that you had terminated Mr. Guilbault’s retainer at or about 1:30 on Monday, October 26 and that you were out of the country so I was aware of both circumstances.
MR. RANCOURT: Yes.
THE ARBITRATOR: The letter that was issued to you on October 29 th indicated that after consideration of your we’ll call it written submission on the point I determined that I was not satisfied with the explanation provided to me by you as to why the matter should not proceed today on the date named under the Interim Award as previously issued by me. Today’s date was made peremptory on you sir and that circumstance was certainly clear in the earlier Interim Award that I issued.
17Mr. Rancourt also attested to the fact that he did not have in his possession at the arbitration hearing two document briefs that had been prepared by Ms. Binks and served upon him at his place of business, which was the only address for service which Ms. Binks had for Mr. Rancourt after he dismissed his lawyer. Ms. Lockman’s position was that Mr. Rancourt was properly served with those documents, and that he was responsible for not having them, not her. Mr. Rancourt’s position was that he had not seen the documents as he had not gone to his office upon his return to Canada, and that he was not given a proper opportunity at the arbitration hearing to review the documents in each volume. Rather than provide him with such an opportunity, Arbitrator Cochrane simply suggested that they share her set of documents while Ms. Lockman testified.
18Mr. Rancourt’s evidence is that he additionally did not understand the case he was required to meet nor the relevant legal principles to apply, and as a result he was unable to properly cross-examine Ms. Lockman, or her expert, Mr. Steve Pittman.
19With respect to his own evidence, Mr. Rancourt indicated he did not understand that he would not be asked questions for his examination-in-chief, and that he had not prepared anything in advance. Mr. Rancourt’s evidence was, therefore, limited to the following from line 14 on page 94 to line 7 on page 95 of the arbitration transcript, a copy of which is located at Exhibit “N” to Mr. Rancourt’s October 31, 2017 affidavit:
MR. RANCOURT: Justin has been receiving the $50,000 salary since May 1 st . Never in my 20 years of business and even before have I had to prepare an employment contract, having one with my son would be an insult to both of us is my feeling. I will sign one but as long as he knows that it’s at this request. I paid and will pay Justin’s tuition fees.
The financial reports and analysis of costs is an enormous amount of money both personal and corporate lawyers, corporate accountants fees, it’s my feeling that these reports are totally not necessary and a total waste of money.
I feel that I am being bullied by continuous threats and harassment from my ex and her lawyer. I’m a good father, I help and love my children and I just go on with my life and the life of my family. I’m tired of people trying to find lies, I’m tired of threats and people are just lining their own pockets at my expense.
That’s going to be it for now.
20Mr. Rancourt indicated that his closing statement was equally limited. It is contained at line 14 on page 121 to line 3 on page 122 of the arbitration transcript, a copy of which is attached to Mr. Rancourt’s October 31, 2016 affidavit at Exhibit “O”. His closing statement consists of the following:
MR. RANCOURT: We spent a lot of time here just establishing that I have an income and that’s fine. We’ve established that I have a good company and you know providing income for 60 or more families. We’ve established that I gave Justin a great potential for a future income, for a career, that Susan is maintaining the style of living. But we haven’t given much consideration to Justin’s needs, Justin’s costs, in all this versus the amount that my ex-wife is looking for.
Obviously the excess is not going for Justin’s needs; it’s going into her own bank account. And I think there should have been more discussion on that matter but like I say I don’t know these proceedings and that’s what it is. So I don’t have any more to add to this.
Analysis
21The case of Webster v. Wendt, 2001 CarswellOnt 519, at paragraph 62, stands for the proposition that “a breach of the obligation to treat the parties fairly and equally pursuant to s. 19 of the Arbitration Act constitutes a breach of natural justice”. It also confirms that “a court has the authority to intervene where an administrative tribunal has exceeded its jurisdiction by making a decision that amounts to a denial of natural justice”.
22At paragraph 96 of Hercus v. Hercus, 2001 CarswellOnt 452, Templeton J. found:
The Arbitration Act requires an arbitrator to treat the parties equally and fairly. However, the Act does not equate treating the parties ‘equally and fairly’ with ‘the opportunity to present a case and respond to the other parties’ cases’. In fact, these elements of the arbitral process are listed as two distinct and separate requirements and are contained in different subsections of the Act. To provide an opportunity to present a case and respond to the other’s case does not, therefore satisfy the requirement that the parties be treated equally and fairly. Both requirements must be met by the arbitrator.
23Under the circumstances described above, then, was the Respondent/Applicant on Judicial Review, Mr. Rancourt, treated equally and fairly by the Arbitrator, and given an opportunity to present his case or to respond to Ms. Lockman’s case? I think he was not.
24Pursuant to Perell J. in Ariston Realty Corp. v. Elcarim Inc., 2007 CarswellOnt 2371, at paragraph 34, decision makers exercising their judicial discretion to grant or refuse an adjournment are to weigh many relevant factors, including the overall objective of a determination of the matter on its substantive merits; the principles of natural justice; that justice not only be done, but appear to be done; the particular circumstances of the request for an adjournment and the reasons and justification for the request; the practical effect or consequences of an adjournment on both substantive and procedural justice; the competing interests of the parties in advancing or delaying the progress of the litigation; the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment; whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused; the need of the administration of justice to orderly process civil proceedings; and, the need of the administration of justice to effectively enforce court orders.
25In Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484, 2009 ONC 484, 2009 CarswellOnt 3420, Weiler, J. A., on behalf of the panel stated at paragraph 37:
…A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these [previously listed] cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel, and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.
26While Arbitrator Cochrane considered Mr. Rancourt’s request for an adjournment prior to the November 3 rd commencement of the hearing, as is evinced by her letter to the parties dated October 29, 2015, she did so only, seemingly, in relation to whether he intended to appear at the scheduled hearing, and what the consequences of not appearing could be. There is nothing in Arbitrator Cochrane’s letter of October 29, 2015, which evinces that she considered Mr. Rancourt’s actual reason for requesting the adjournment, namely that he wanted the opportunity to retain new counsel. She appears, thus, not to have put her mind to the question of whether Mr. Rancourt was honestly seeking to exercise his right to counsel, having always exercised it, or, conversely, whether Mr. Rancourt was manipulating the system by seeking to orchestrate delay, which is certainly the contention of the Applicant/Respondent on Judicial Review, Ms. Lockman.
27A reading of the Arbitration Award of Arbitrator Cochrane dated December 30, 2016, reveals no further consideration on her part of Mr. Rancourt’s request for an adjournment. Indeed, it is entirely silent as to the request.
28The extent to which the transcript of the arbitration hearing reveals such consideration is as outlined in paragraph 16 above. It, similarly, does not show any analysis by Arbitrator Cochrane of the factors the Ontario Court of Appeal has found important to consider in any request for an adjournment, but for that regarding previous peremptory dates. There is no analysis by her of previous lack of compliance with court orders, previous adjournments, the desirability of having the matter decided, the consequences of the hearing, the prejudice to Mr. Rancourt if the adjournment is not granted or the prejudice to Ms. Lockman if it is, or whether, as I have indicated, Mr. Rancourt was honestly seeking to exercise his right to counsel or not.
29In her letter dated October 29, 2015, Arbitrator Cochrane outlined the history of the proceedings, and referred to an adjournment she granted on February 2, 2015 to June 8, 9 and 10, 2015, peremptory to Mr. Rancourt, and to her Second Interim Arbitration Award released on May 29, 2015, which declared the new consent adjournment dates of November 3, 4 and 5, 2015, peremptory to Mr. Rancourt. It is to this latter Award she appeared to by referring at the hearing when Arbitrator Cochrane stated to Mr. Rancourt: “Today’s date was made peremptory on you sir and that circumstance was certainly clear in the earlier Interim Award that I issued”. Arbitrator Cochrane appears to, thus, be relying upon the peremptory nature of the proceedings as the basis for continuing with them and refusing Mr. Rancourt’s request for an adjournment. In Igbinosun, supra, the Ontario Court of Appeal held at paragraph 43:
One of the purposes of making a hearing date peremptory is to further the public interest in the administration of justice by preventing delay and wasted costs. However, judicial discretion must still be exercised depending on the facts and circumstances of each case, as the overarching purpose of marking a date peremptory is to serve the interests of justice.
30In other words, the fact of the hearing date being peremptory does not outweigh the other factors to be considered in each case. There is nothing before me which would support that Arbitrator Cochrane undertook that exercise.
31First, Mr. Rancourt was represented throughout the proceedings, from their commencement and leading up to the arbitration hearing. This is not a case where Mr. Rancourt had been through numerous lawyers or caused previous delays due to changes in counsel. He had the same lawyer from the beginning of the proceedings until October 26, 2015. While it is the position of Ms. Lockman that Mr. Rancourt dismissed his lawyer eight days before the hearing for the sole purpose of manipulating the system and causing delay, I do not have evidence upon which I can come to that conclusion. Nor can I find any logical benefit to him in delay. The case before Arbitrator Cochrane had to do with retroactive and prospective child support, and Mr. Rancourt’s ultimate obligations would remain regardless of when the case was heard. Regardless of what I find, however, had Arbitrator Cochrane denied Mr. Rancourt’s request for an adjournment on this basis, she would have to explicitly find it. She did not.
32Second, Mr. Rancourt dismissed his lawyer on October 26, 2015, and advised the Arbitrator within an hour of having done so. While this occurrence was closer to the hearing date than anyone would have liked, including presumably Mr. Rancourt, his request to the Arbitrator was extremely timely.
33Third, Mr. Rancourt lost confidence in his lawyer, and dismissed him, which is his right. Mr. Rancourt advised the Arbitrator that his reason for not wanting to proceed on November 3, 2015, was because he needed to retain a new lawyer and obtain legal advice. Mr. Rancourt gave this as his reason for requesting the adjournment in his initial communication to Arbitrator Cochrane on October 26, 2015, in his email to Arbitrator Cochrane on October 27, 2015, and in his email to Arbitrator Cochrane on October 29, 2015 in response to her letter of October 29, 2017. He additionally stated it to her in his opening statement on November 3, 2015. Unlike in Khimji v. Dhanani, 2004 CarswellOnt 525, Mr. Rancourt had never previously been granted an adjournment for the purpose of retaining new counsel. Notwithstanding the above, nowhere does the Arbitrator address this reason as being the basis for Mr. Rancourt’s request for an adjournment, and nowhere is it apparent that she considered the factors she was required to consider in relation thereto. On the evidence before me, it seemed clear that Mr. Rancourt was honestly seeking to exercise his right to legal counsel, and that he was denied that opportunity. Again, if the Arbitrator had a basis for refusing Mr. Rancourt’s request for an adjournment for that reason, she needed to have considered all the relevant factors in the exercise of her discretion to refuse the adjournment request.
34Fourth, Mr. Rancourt was required to attend the arbitration without counsel, because he had not had an opportunity to yet retain new counsel, and because he felt he had no choice, having had the consequences of not attending outlined to him. Mr. Rancourt made his discomfort with that situation known to Arbitrator Cochrane, in his opening statement, in his limited evidence, and in his limited closing statement.
35Mr. Rancourt’s evidence before me was that he did not know how to properly cross-examine Ms. Lockman or her expert, Mr. Pittman, nor did he know the relevant legal principles upon which he should do so. He did not know that he would not be questioned in his examination-in-chief, which was apparent in the transcript, and he had not prepared anything to say in advance. He did not, moreover, call any evidence beyond what I have outlined in paragraph 19 above. Finally, he did not know what an opening or closing statement was, or of what it was to be comprised.
36Ms. Lockman’s answer to Mr. Rancourt’s discomfort is that he is a sophisticated and successful business man, and that, as a result, he was not prejudiced by the arbitration proceeding. I disagree. The consequences to the hearing were serious, in that Mr. Rancourt’s retroactive and proactive obligations to support his son were being defined. Mr. Rancourt’s inability to effectively present his case and respond to Ms. Lockman’s case interfered with the Arbitrator’s overall objective to make a determination of the matter on its substantive merits. Mr Rancourt was prejudiced by Arbitrator’s refusal to grant an adjournment.
37I had no evidence upon which I could base a finding that Ms. Lockman would have been prejudiced by the granting of an adjournment for the purpose requested, at least not such that the prejudice could not have been compensable in costs. Again, regardless of what I find, I saw no analysis by the Arbitrator as to whether she had considered the potential prejudice to Mr. Rancourt of not granting the adjournment versus the potential prejudice to Ms. Lockman of granting the adjournment, and whether either was compensable in costs.
38While I recognize that deference must be given to the discretionary decision of the Arbitrator to grant or refuse an adjournment as per Ariston Realty Corp, supra, the exercise of that discretion must be shown to have been done judicially. In his dissenting decision in Khimji v. Dhanani, supra, Laskin, J.A., at paragraph 14, made the following statement of principles, which was adopted by Doherty, J.A. for the majority:
A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably, and if, as a result, the decisions contrary to the interests of justice, an appellate court is justified in intervening.
Conclusion
[39]
Conclusion
Based on the findings in paragraphs 26 to 37 above, I find that the Respondent/Applicant on Judicial Review, Mr. Rancourt, was not treated equally and fairly. Mr. Rancourt did not have the opportunity to present his case or to respond to Ms. Lockman’s case. The Arbitrator did not balance the interests of the Ms. Lockman to get on with a hearing with the interests of Mr. Rancourt to exercise his right to counsel, or with the interests of the administration of justice to ensure that the matter was decided on its substantive merits, and that justice was not only done, but seen to be done.
40The breach of the obligation to treat Mr. Rancourt fairly and equally pursuant to s. 19 of the Arbitration Act constitutes a breach of natural justice The Arbitration Award of Arbitrator Cochrane dated December 30, 2015, must be set aside. It follows that her costs award of March 31, 2016 must also be set aside. Given what has transpired to date, conducting the hearing again with a different arbitrator will secure fair and equal treatment for the parties.
Order To Go As Follows:
Order
The application is granted, and the awards of Arbitrator Cochrane dated December 30, 2015, and March 31, 2016, are set aside.
Arbitrator Cochrane shall be removed. The parties shall submit their dispute to a different arbitrator as agreed upon between them.
Failing agreement by counsel by May 15, 2017 as to the liability for costs of this application, counsel will make written submissions to me at intervals of 10 days and I will make an order.
Madam Justice Tracy Engelking Released: April 11, 2017