“Optiva relies on s. 26 of the Act. For convenience, I repeat the terms of that provision:
26(1) The arbitral tribunal may conduct the arbitration on the basis of documents or may hold hearings for the presentation of evidence and for oral argument; however, the tribunal shall hold a hearing if a party requests it.
As I understand Optiva’s submission, the phrase “may hold hearings for the presentation of evidence and for oral argument” refers exclusively to a proceeding in which evidence is presented viva voce, subject to viva voce cross-examination, and oral argument is made. Optiva submits that any departure from that kind of hearing requires the consent of the parties.
Neither the word “hearing”, nor the phrase “presentation of evidence” are defined in the Act. In the context of civil or administrative proceedings, a “hearing” refers to a proceeding which does not necessarily involve the presentation of viva voce evidence: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 1(1), 15(1); Rules of Civil Procedure, s. 1.03. For example, in civil proceedings, a “hearing” includes applications and motions. In the vast majority of those “hearings”, while oral argument is made, evidence is not presented viva voce. There is no reason why the term should have a different meaning in the context of commercial arbitration.
Similarly, the phrase “presentation of evidence” does not connote viva voce evidence only. Counsel who offer a motion record or application record containing affidavits and transcripts of cross-examinations are clearly presenting evidence at the hearing of the motion or application.
The manner in which evidence is presented at a hearing is ultimately a procedural question. While under s. 26 a party has a right to make oral argument, that party has no right to present its evidence in a particular manner. Under the terms of the arbitration agreement Optiva and Tbaytel chose to enter into, it fell to the arbitrator to decide procedural questions, including how evidence should be presented. The arbitrator chose a method routinely and effectively used in civil litigation involving issues and evidence like those raised in this proceeding.”
Optiva Inc. v. Tbaytel, 2022 ONCA 646 (CanLII) at 44-48