“The Arbitration Act provides the following under the general heading “Conduct of Arbitration”:
Equality and fairness
19 (1) In an arbitration, the parties shall be treated equally and fairly.
(2) Each party shall be given an opportunity to present a case and to respond to the other parties’ cases. 1991, c. 17, s. 19 (2).
The appeal judge erred in law by finding a violation of s. 19. I say this for four reasons:
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- the proceedings were fair;
- the father acquiesced in the notice with respect to mobility;
- the appeal judge ignored the best interests of the children; and
- the appeal judge’s interpretation of s. 19 of the Arbitration Act establishes a new duty for arbitrators that would fundamentally change the arbitration process and undermine arbitral independence and impartiality.
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The appeal judge’s interpretation of s. 19 of the Arbitration Act places a new and unreasonable burden on an arbitrator in family law proceedings. When parties are represented, it does not fall to the arbitrator to move to the role of advocate. Such a move would undermine the required independence and impartiality of an arbitrator.
There is no evidence that the arbitrator did not treat the parties equally and fairly. There is no evidence that the father did not have an opportunity to present and respond to the case. As I have already explained, he was represented by counsel and did not object to the mobility issue being determined. The situation was urgent, and the arbitrator had a duty to consider the children’s welfare as paramount. Recall that the arbitrator had been involved with the family for many years.
The appeal judge placed an obligation on the arbitrator to depart from his role as independent adjudicator and move to the role of advocate. This would compromise his independence and potentially breach his duty of impartiality. Section 19 does not require the arbitrator to descend into the arena and become an advocate or advance a party’s case.”
Petersoo v. Petersoo, 2019 ONCA 624 (CanLII) at 39-40, 51-53