“There is no dispute between the parties about the test to be applied in determining either what amounts to a reasonable apprehension of bias or the evidentiary onus on the claimant. In A.M. v. J.M., 2016 ONCA 644, an appeal involving a parenting dispute, the Court of Appeal dealt with both.
The test for reasonable apprehension of bias was recently stated by this court in Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: “Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly”. The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge’s impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry…: Ibid, at para. 55.
These principles equally apply to arbitration proceedings: Allied Truck Services Inc. v. Jeffrey Swift et al, 2015 ONSC 5496, at para. 12.
Circumstances in which an arbitrator was disqualified where apprehended or actual bias was demonstrated and which have invited the proscriptive challenge limitation in s. 13(3) of the Act are often accompanied by, or overlap, complaints pursuant to s. 19 of the Act (equality and fairness). Examples include:
(a) Where the arbitrator has, or had, a personal relationship with one of the parties or their counsel: Rothesay Residents Assn Inc. v. Rothesay Heritage Preservation & Review Board, 2006 NBCA 61; W.L.S. v. K.B.G., 2010 ONSC 4167;
(b) The arbitrator’s actions strongly suggested during the mediation preceding formal arbitration that he had already made up his mind about the issues in dispute: McClintock v Karam, 2015 ONSC 1024;
(c) Where contractual pre-conditions to arbitration were ignored: Kainz v Potter, 2006 CanLII 20532 (ON SC) at paras 46 and 51-52;
(d) Where a party was either not given a fair opportunity to present their case and respond to the other party’s case or where the procedural terms of the parties’ Arbitration Agreement were not followed: Hercus v. Hercus, 2001 O.J. No. 534; Surowiec v. Surowiec, 2016 ONSC 1095.