“In order to establish a reasonable apprehension of bias, the Applicant must show that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that the Arbitrator would not decide the matter fairly. See Committee for Justice and Liberty v. Canada (National Energy Board) 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369.
This principle has been applied in the context of a family law mediation/arbitration process in McClintock v. Karam (2015 ONSC 1024 (CanLII)). In that decision, Gray J. stated (at paragraphs 68 to 70):
[68] As stated by de Grandpre J., one of the considerations is the “special circumstances of the tribunal”. In this case, the tribunal is a mediator/arbitrator, and he has been constituted by agreement. It must be concluded that the parties, in agreeing to mediation/arbitration, would understand the nature of the process of mediation/arbitration. The informed person, in deciding whether there is a reasonable apprehension of bias, would also understand the nature of the process of mediation/arbitration.
[69] In order to effectively mediate, the person appointed must engage in a process that has a good deal of informality. Mediative techniques include persuading, arguing, cajoling, and, to some extent, predicting. Mediation is a process to secure agreement, if possible. All of those techniques, as well as others, will come into play in trying to secure agreement.
[70] If the mediator/arbitrator must move to the arbitration phase, it cannot be expected that he or she can entirely cleanse the mind of everything learned during the mediation phase, and of every tentative conclusion considered, or even reached, during the mediation phase. However, at a bare minimum the parties are entitled to expect that the mediator/arbitrator will be open to persuasion, and will not have reached firm views or conclusions.”