I dealt with a complicated matter of jurisdiction whereby two of the affected parties (the Affected Parties) sought the removal of the arbitrator appointed to hear the merits of this matter (the Appointed Arbitrator) on the grounds of a reasonable apprehension of bias. This challenge arose during the actual hearing held at the Sport Dispute Resolution Centre of Canada (SDRCC). The hearing was paused until I rendered my decision of SDRCC 22-0609 Fowlie v. Wrestling Canada dated April 3, 2023 on the SDRCC website.
One of the main questions that I had to answer is whether an arbitrator benefits from judicial immunity in a challenge to his jurisdiction. Judicial immunity typically means that a judge cannot be compelled to testify about “events experienced in the course of their judicial duties” or “matters encountered in the course of exercising a judicial function.”[1] Whether an arbitrator benefits from judicial immunity has been the subject of debate. In Ontario, for example, the court has held that joining an arbitrator may be appropriate in certain cases.[2] Furthermore, the Arbitration Act (Ontario)[3] does not prohibit an arbitrator, whose jurisdiction is being challenged, from making submissions in certain situations. The Canadian Sport Dispute Resolution Code (the Code) is silent on whether an arbitrator has standing to make submissions.
In brief, it was my view that where the matter in issue involves factors or considerations peculiarly within the arbitrator’s knowledge or expertise, or where explanations are not going to be put forth by any of the parties, there should clearly be room for the arbitrator to make submissions on a challenge to his jurisdiction. I decided that the circumstances warranted receiving written submissions from the Appointed Arbitrator as his submissions would provide context to the challenge to his jurisdiction.
When determining whether I should remove the Appointed Arbitrator on the grounds of a reasonable apprehension of bias, I undertook an analysis of the well-established test, which is inherently contextual, fact-specific and objective. In doing so, I sought guidance from the IBA Guidelines on Conflicts of Interest in International Arbitration[4] (the IBA Guidelines), which are published rules and guidelines relating to international arbitration and comprise “General Standards” on impartiality, independence and disclosure. The IBA Guidelines have specific, non-exhaustive, scenarios that are very likely to occur in an arbitration practice. Their purpose is to assist users of whether an arbitrator’s appointment would violate the conflict of interest rules. I determined that the same standards that apply in international arbitrations should apply in this situation because the criteria and examples were determinative of whether the Appointed Arbitrator’s conduct created a reasonable apprehension of bias. Overall, I concluded that the Affected Parties, who had the onus to prove there is a reasonable apprehension of bias, failed to discharge their burden of proof, and the situation did not even come close to meeting the semblance of a reasonable apprehension of bias.
This matter, which began in November 2022, became less about sport and more about procedural wranglings. In addition to deciding on whether the Appointed Arbitrator had jurisdiction to provide submissions and if there was a reasonable apprehension of bias, I had to address the following additional issues created by the Affected Parties:
- The Affected Parties mischaracterized the preliminary meeting as a hearing because I briefly heard from each party. I had to highlight that there is no prohibition in the Code preventing me from hearing from the parties and that this was a documents-only arbitration whereby I based the entire weight of my decision on the written submissions. I indicated that any statements that the Appointed Arbitrator, or any other party, made at the preliminary meeting were immaterial to my decision and not dispositive of whether there was a reasonable apprehension of bias. I further emphasized that there was no sworn evidence, no cross-examination, no exhibits, no opening or closing statements, no argument on the test for a reasonable apprehension of bias and no citations of authorities. There was no formal motion for the purpose of seeking a remedy. Nothing was adjudicated. The preliminary meeting was simply a case management conference to discuss next steps.
- One of the Affected Parties recorded the preliminary meeting without my knowledge or consent. I had to remind him that recording for his own personal note-taking use was very different from using that recording to refer to statements made during the preliminary meeting and critiquing them in his written submissions. I wrote that it was discourteous and frankly shocking that he recorded the preliminary meeting without first advising me and soliciting my consent as it was not unreasonable to expect this level of civility. I reminded him that there is a process under section 5.10 of the Code for arranging recordings.
I admonished the Affected Parties at the end of my decision by stating that if they wished to bring applications, their applications had to be rooted in a strong evidentiary foundation. Despite this, there was a second challenge to the Appointed Arbitrator’s jurisdiction, which was also denied as well as other orders that the Appointed Arbitrator had to make throughout the hearing.
If you are an arbitrator, I encourage you to read my decision for my analysis of a challenge to an arbitrator’s jurisdiction, my discussion of the IBA Guidelines, and my handling of the side issues created by the Affected Parties. If you wish to discuss, please do not hesitate to reach out to me.
[1] R v Parente, 2009 CanLII 18685 (ON SC), at para. 6.
[2] Kitchener (City) v. G.M. Gest Group Ltd., 2003 CarswellOnt 3946, 31 C.L.R. (3d) 168, [2003] O.T.C. 914, [2003] O.J. No. 4038 (Ont. S.C.J.)
[3] Arbitration Act, 1991, 1991, S.O. 1991, c. 17.
[4] Adopted by resolution of the IBA Council on Thursday, October 23, 2014. Updated, August 10, 2015.