Commercial arbitration offers many advantages. One of them is the parties’ ability to choose their own process and decision-maker. While arbitrators are deservedly given a wide berth in how they conduct hearings, there are limits to what the law will allow. In Atkinsréalis Construction (Pacific) Inc. v. GIP Construction Ontario East Ltd., 2026 ONSC 5666, the Court found that an arbitrator transgressed that limit and so removed him as arbitrator pursuant to subsections 13(6) and 15(1) of Ontario’s Arbitration Act, 1991 (the “Act”).

The reason? He engaged in protracted and prepared cross-examination of one party’s witnesses to the point that the Court found he had “descended into the arena.” This amounted to a reasonable apprehension of bias in violation of section 19 of the Act, which requires all parties to an arbitration to be treated “equally and fairly.”

Background

Atkinsréalis Construction (Pacific) Inc. (“ATRL”) and GIP acted as contractor and subcontractor, respectively, on a light rail project in Ottawa known as the Trillium Line Extension Stage 2 Project. They each had claims against the other arising from delays in the project, which they agreed to arbitrate.

They chose an experienced arbitrator with specialized knowledge in the construction industry (the “Arbitrator”). The Arbitrator made clear to the parties in advance that it was his practice to take an active and interventionist approach, which the parties acknowledged and seemed to even encourage. In fact, the same Arbitrator was challenged, unsuccessfully, on a similar basis in a previous case (see: Dufferin v. Morrison Hershfield, 2022 ONSC 3485).

The Arbitrator lived up to his reputation, engaging in detailed questioning of witnesses after their cross-examination. ATRL was of the view that the Arbitrator had gone too far. After all the fact witnesses had provided their evidence, it asked the Arbitrator to remove himself on the basis that his conduct amounted to circumstances “that may give rise to a reasonable apprehension of bias,” one of only two grounds available under the Act to remove an Arbitrator during an arbitration [para 13(1)1].

After the Arbitrator dismissed the challenge, ATRL brought this application under subsection 13(6) of the Act to have the Arbitrator removed.

It also obtained a stay of the arbitration pending that proceeding (Atkinsréalis Construction (Pacific) Inc. v. GIP Construction Ontario East Ltd., 2026 ONSC 4785). The Court in that decision determined that ATRL had established a “strong prima facie case”—a higher standard than applies to other stay motions, which it considered appropriate given the strong presumption of impartiality and the Act’s general posture that courts should usually intervene minimally in ongoing arbitrations.

The removal application

(a) The Arbitration Act requires arbitrators to be neutral, independent decision-makers

The Court began by noting that section 19 of the Act imposes the requirement that “[i]n an arbitration, the parties shall be treated equally and fairly.” Unlike many of the Act’s provisions, section 19 cannot be contracted out of, and its application cannot be waived.

The Court held that this provision engaged the content of procedural fairness doctrine at common law. This, alongside subsection 13(1)’s provision that an arbitrator may be removed if “[c]ircumstances exist that may give rise to a reasonable apprehension of bias,” requires an arbitrator to be “a neutral, independent decision-maker” [para. 24]. The relevant standard is objective: considering all the context, would a reasonably informed observer have a reasonable apprehension of bias on the part of the arbitrator? Importantly, this requires both neutrality and the appearance of neutrality.

The Court also held that the commercial arbitration context, including that the Arbitrator was chosen for his expertise and approach, an approach the parties knew and encouraged, did not alter that requirement of neutrality. This was so even though the Arbitrator’s terms of appointment explicitly stated that “the Arbitrator shall be entitled to question any witness.” The Court explained that the duty of neutrality applies in arbitrations “as a matter of law and public policy no matter what the parties may prefer” [para. 44].

The Court further held that the same principles for assessing reasonable apprehension of bias apply to arbitrators as apply to judges, citing the Supreme Court of Canada’s early arbitration-related decision in Szilard v. Szasz, 1954 CanLII 4, [1955] S.C.R. 3. As a result, there is a strong presumption of impartiality, the impugned conduct is considered in its context, and the assessment is made cumulatively.

However, there are limits on the questioning that an arbitrator may engage in. The Court cited Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, for its holding that judges are free to actively and civilly participate in a proceeding but are not granted free rein to question witnesses. They must not create an impression through the questioning process of having adopted a position on the facts, issues or credibility. The Court added that a decision-maker's motivation or intention is irrelevant: even a well-intentioned search for the truth can cross the line. The Court concluded that the “basic presumption” that a decision-maker may not descend into the adversarial arena to cross-examine witnesses applies to arbitrators [para. 51].

The Court also held that cross-examination is presumptively on the wrong side of the line because it inherently lacks neutrality. It uses leading questions to elicit the evidence that the examiner desires, in order to achieve one or more of three purposes: to weaken, qualify or destroy the opponent’s case, to support the examiner’s own case, or to discredit a witness.

Interestingly, the Court noted in obiter that it might be possible for an arbitration to incorporate an inquisitorial style of proceeding that maintains an arbitrator’s neutrality, and that parties could even “devise a fair coin toss process.” However, such a term would require “very express wording” reflective of the requirements of the Act and content of common law procedural fairness [para. 26].

(b) The Arbitrator engaged in cross-examination

The Court turned to consider whether the Arbitrator’s questions amounted to cross-examination, and a descent into the adversarial arena that raised a reasonable apprehension of bias.

The Court held that they did. It excerpted and considered in detail three exchanges between the Arbitrator and ATRL’s main witnesses that it held amounted to prepared efforts designed to undermine ATRL’s positions and its witnesses’ credibility. They demonstrated the Arbitrator’s misunderstanding of his role, which required him to be, and be perceived to be, neutral.

  1. The Arbitrator’s questioning of one of ATRL’s witnesses demonstrated an attempt to undermine a key plank of ATRL's argument on the key issue of whether it was entitled to terminate the contract when the parties could not agree on the pricing of proposed changes. The Arbitrator had used a classic cross-examination technique: pinning the witness to a general list of options for handling changes in construction contracts, which did not include termination, and then confronting him with his earlier statements in the context of the contract. When the witness resisted, the Arbitrator interrupted, dismissed his answers (“You can argue about that” and “That might be a later fight”), and moved on once he secured the admission. He also raised alleged inconsistencies with the witness’s prior statements without asking him to explain them.
  2. In another excerpt with the same witness, the Arbitrator began with a sarcastic view of ATRL’s conduct, purported to ask open-ended questions, then interrupted to state that the evidence was contradicted by two documents, neither of which he put to the witness, and moved on when ATRL’s counsel objected that he had misstated the contents of the email.
  3. The Arbitrator engaged in extensive questioning of another ATRL witness to undermine his credibility, obtaining his admissions that counsel had drafted his affidavit and characterizing the witness’s description of a letter as “spin” from counsel. Although the Arbitrator criticized both sides for submitting affidavits not in the witnesses’ voices and straying into argument, he subjected only ATRL’s witness to this level of cross-examination.

The Court found these to be major interventions that arose from the Arbitrator’s prepared cross-examination. They demonstrated that the Arbitrator had gone too far and, by “descend[ing] into the arena,” would give a reasonable person a reason to apprehend the Arbitrator was against ATRL’s position [para. 99].

The Court also rejected the relevance of the Arbitrator’s point that ATRL’s counsel had failed to object to his questioning. It held that a failure to object cannot amount to binding consent to an arbitrator’s biased conduct; it is relevant only to whether an application is brought for tactical purposes instead of true concern, and there was no basis for such an allegation here. In any event, ATRL’s counsel did object, albeit not question-by-question, and did so in a measured and respectful way.

Analysis

The case is notable for holding that neutrality, and the appearance of neutrality, is an indispensable element of procedural fairness at common law. This translates to the arbitration context.

Indeed, the Court’s decision in this case is consistent with what the Court of Appeal for Ontario held in Vento Motorcycles, Inc. v. Mexico, 2025 ONCA 82. That case arose from an international arbitration governed by Ontario’s International Commercial Arbitration Act, 2017. The Court of Appeal applied the same reasonable apprehension of bias standard, although the legislation, which is based on the UNCITRAL Model Law on International Commercial Arbitration, uses the nomenclature of “justifiable doubts” as to the arbitrator’s impartiality. Importantly, the Court of Appeal previously ruled in Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc., 2024 ONCA 839, that “[j]ustifiable doubts about impartiality is an equivalent phrase to reasonable apprehension of bias” [para. 2]. In light of this consistent case law, the common law of procedural fairness will govern in Ontario-seated arbitrations, be they international or domestic.

It is also notable that the application in Dufferin, brought against the same arbitrator and raising similar concerns regarding procedural fairness, was dismissed. The Court in that case appears to have placed greater weight on the arbitral context, noting that “private commercial arbitration is critically different from litigation” [para. 113]. However, as this case and the Court of Appeal’s decisions in Vento and Aroma show, that difference does not extend to the standard applicable to adjudicator impartiality.

Comparing this case and Dufferin also provides further insight into where a court might draw the line between acceptable questioning and cross-examination. The Dufferin Court viewed the Arbitrator’s questions as incisive and pointed, as providing witnesses an opportunity to explain their evidence, and as fairly balanced between the parties. In contrast, the Court found the Arbitrator’s questioning in this arbitration to be leading, to cut off opportunity for explanation, to advance the position of one party, and to focus on ATRL’s witnesses in particular. This crossed the line.

Finally, the Court’s obiter comments that it might be possible for parties to agree to an inquisitorial style of arbitration, or even a decision by a coin toss, set up a future issue. It remains to be seen whether such a process could indeed be drafted while “respect[ing] the mandatory language of the statute and avoid[ing] creating circumstances that may give rise to a reasonable apprehension of bias” [para. 26].

To discuss the implications of this decision, please contact one of the authors or a member of Gowling WLG's Commercial Litigation or International and Domestic Arbitration groups.