When Does an Arbitrator’s Questioning Cross the Line?
Arbitrators are often selected for their specialized knowledge and experience. While their expertise may allow them to take an active role in questioning witnesses, there are limits to their participation.
In Atkinsréalis Construction (Pacific) Inc. v. GIP Construction Ontario East Ltd.[i](“ATRL”), the Ontario Superior Court of Justice removed an arbitrator from an ongoing construction dispute after finding that his questioning of witnesses created a reasonable apprehension of bias.
The decision addresses when an arbitrator’s involvement in examining witnesses crosses the line from clarification into advocacy.
The Rules of Arbitration
Under section 19 of the Arbitration Act, 1991 (“Arbitration Act”), parties to an arbitration must be treated equally and fairly.[ii] Section 13(1) permits an arbitrator to be challenged where circumstances may give rise to a reasonable apprehension of bias.[iii]
In hearing this case, Justice Myers relied on the Court of Appeal’s guidance in Chippewas of Mnjikaning First Nation v. Chiefs of Ontario[iv], which cautioned that judges must avoid questioning witnesses in a manner that creates the impression they have adopted a position on the facts, issues or credibility.[v]
Importantly, the issue is not whether the decision-maker intended to be biased. Rather, the Court must determine whether an informed and reasonable observer would suspect bias after considering the conduct in its full context.[vi]
Background
The dispute arose from construction work on Ottawa’s Trillium Line Extension Project. Atkinsréalis Construction (Pacific) Inc. (“Atkinsréalis”), the prime contractor, and GIP Construction Ontario East Ltd. (“GIP”), a subcontractor, had competing lawsuits concerning project delays and changes to the scope and timing of work.
The parties appointed an experienced construction arbitrator who was known for his active approach to questioning witnesses. Before the hearing, the arbitrator explained his preference for a more inquisitorial process, and both parties agreed to that approach.
However, during the arbitration, Atkinsréalis became concerned that the arbitrator’s questioning of its witnesses went beyond clarification and resembled cross-examination by opposing counsel.
Atkinsréalis sought the arbitrator’s removal, and applied to the Superior Court under section 13(6) of the Arbitration Act.[vii]
Why the Arbitrator Overstepped
Justice Myers found that the arbitrator had conducted carefully prepared examinations of Atkinsréalis’ witnesses using techniques ordinarily employed by opposing counsel.
For example, the arbitrator used leading questions to obtain admissions about the contractual options available when construction changes were proposed. He subsequently relied on those admissions to challenge Atkinsréalis’ position concerning its termination of the subcontract.[viii]
The arbitrator also questioned another witness in a manner directed at undermining the credibility of his evidence.[ix]
Justice Myers concluded that the arbitrator had gone beyond clarifying testimony and had effectively adopted an adversarial role. His questioning created the impression that he had formed a position on disputed issues before the hearing concluded.
The Court also rejected the suggestion that the parties’ agreement to an inquisitorial approach permitted such questioning. Although arbitrators may participate actively in hearings, the parties cannot contract out of the statutory requirement for fair and equal treatment.[x]
Justice Myers accordingly ordered the arbitrator’s removal.[xi]
Key Takeaways for Parties in Arbitration
The decision offers several practical considerations for businesses and individuals involved in arbitration:
- Arbitrators may ask questions, but must remain neutral
Questions intended to clarify evidence or technical matters are generally permissible. However, questioning that resembles an advocate’s cross-examination may create a reasonable apprehension of bias.
- Consent to active questioning does not eliminate procedural safeguards
Even where parties select an arbitrator for their expertise and agree to an inquisitorial approach, the arbitrator must comply with the mandatory requirements of fairness and impartiality.
- Concerns about impartiality should be raised during the proceedings.
Parties should address potentially improper questioning as it arises. However, Justice Myers confirmed that a failure to object immediately is not necessarily fatal to a challenge, particularly where there is no evidence that the challenge was brought for tactical reasons.
Ultimately, ATRL confirms that an arbitrator’s expertise and active participation cannot come at the expense of neutrality. Parties are entitled to a fair hearing before an impartial decision-maker, regardless of the procedures they have agreed to adopt.
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[i] Atkinsréalis Construction (Pacific) Inc. v. GIP Construction Ontario East Ltd., 2026 ONSC 5666 [ATRL].
[ii] Arbitration Act, 1991, S.O. 1991, c. 17 at s. 19.
[iii] Ibid at s. 13(1).
[iv] Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47.
[v] Atkinsrealis at para 31.
[vi] Ibid at para 46.
[vii] Ibid at paras 5-11.
[viii]Ibid at paras 64-68.
[ix] Ibid at para 60.
[x] Ibid at para 92.
[xi] Ibid at para 116.