Ontario Court Confirms the Fundamental Principles of Neutrality and Fairness in Arbitration
Parties choose arbitration for its flexibility, confidentiality, relative expediency and the ability to select an arbitrator with commercial experience relevant to their dispute.
Canadian courts have historically respected that choice and will only intervene in narrow circumstances. In AtkinsRéalis Construction (Pacific) Inc. v. GIP Construction Ontario East Ltd., 2026 ONSC 5666, the Ontario Superior Court of Justice removed an arbitrator whose active questioning of witnesses, a style both parties had agreed to, was found to have crossed the line from adjudication into advocacy.
The decision confirms that while parties may continue to customize many aspects of their arbitration, the Court can and will intervene to protect the fundamental principle that the arbitration must remain neutral and impartial.
The Arbitration
The dispute between the prime contractor and its roadworks subcontractor arose from the construction of an infrastructure project in Ottawa. Both parties advanced claims of delay.
They agreed to appoint an arbitrator with extensive industry experience. At the outset, the Arbitrator advised the parties that he usually takes an active, inquisitorial approach, and that he would at times question witnesses directly. Both parties accepted that approach. The Arbitrator also advised the parties he would stop any line of questioning they objected to as too active, and on one occasion he did so.
During the hearing, however, the Arbitrator did not pose questions to witnesses in the role of a neutral decision maker. On the basis of witness statements and expert reports, the Arbitrator prepared questions for witnesses in advance much like counsel does.
Eight days into the hearing, the general contractor applied for the Arbitrator to recuse himself, alleging a reasonable apprehension of bias arising from his questioning of one of its witnesses. The Arbitrator dismissed the application, reasoning that the parties had agreed to his inquisitorial style.
The general contractor applied to the Ontario Court to remove the Arbitrator.
The Court’s Decision
The issue before the Court was whether the Arbitrator's conduct created circumstances that could give rise to a reasonable apprehension of bias and result in the arbitration being carried out in breach of the required fair procedure.
Ontario’s Arbitration Act, which governed the arbitration, confirms the parties' right to agree on, among other things: the number and qualifications of their arbitrators, the applicable procedural rules, the scope of evidence and the arbitrator’s role in questioning witnesses.
The Court held that parties cannot, however, contract out of the Arbitration Act's requirement of equal and fair treatment.
The Court was clear that an arbitrator asking witnesses questions is not, in itself, a problem and confirmed that an active approach can be entirely fair. The difficulty in this arbitration was the nature of the questioning. The Court found that the Arbitrator had conducted "skillful cross-examinations"[1] of the general contractor's witnesses by putting leading questions to witnesses in order to establish facts, limit evidence and undermine witness credibility – all classic goals of cross-examination. The Court found that in doing so, the Arbitrator descended into the arena as counsel instead of maintaining his role as the neutral arbitrator.
The Court concluded:
[A]voiding the appearance of advocacy for a party is central to the duty of neutrality when asking questions… If a judge or arbitrator wishes to question a witness, the duty of neutrality and the doctrine of fairness require that questioning must be done in a reserved way that, “does not give rise to the appearance of one-sidedness”.[2]
Take Aways
This decision does not signal any retreat from the courts’ longstanding support for arbitration. While this Court respected the parties’ choice of an experienced and highly-engaged arbitrator, it confirmed that arbitral autonomy has limits. An arbitrator cannot depart from the fundamental principles of neutrality, procedural fairness and equal treatment of the parties.
The decision reinforces arbitration as a credible and effective alternative to litigation. Parties can take comfort in knowing that, while courts will generally defer to arbitral processes, they remain prepared to intervene if the integrity of the process is compromised. The result is a stronger and more reliable arbitration regime that balances efficiency with fairness.
.png)
