CITATION: Dufferin v. Morrison Hershfield, 2022 ONSC 3485  
NEWMARKET COURT FILE NO.: CV-21-00000012  
DATE: 20220610  
ONTARIO  
SUPERIOR COURT OF JUSTICE  
)
)
)
BETWEEN:  
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Dufferin Construction, A Division of CRH  
Group Inc. and Aecon Construction and  
Materials Limited  
Scott J. Hammel, Q.C., F. Schappert,  
H. Edmonds, and M. Puszczak, Counsel for  
the Applicants  
Applicants  
– and –  
Morrison Hershfield Ltd.  
Respondent  
Brendan D. Bowles, Michael Valo, Charles  
Powell, Counsel for the Respondent  
HEARD: November 29 – 30, 2021  
REASONS FOR DECISION  
WOODLEY, J.:  
I.  
OVERVIEW  
This is an application pursuant to Sections 13(6) and 15(1) of the Arbitration Act, 1991,  
1.  
S.O. 1991, c. 17, to remove the single arbitrator appointed with respect to an arbitration (the  
“Arbitration”) between the Applicants and the Respondent, on the basis that circumstances  
exist which give rise to justifiable doubts about the Arbitrator’s independence and  
impartiality, which are alleged to give rise to a reasonable apprehension of bias.  
II. FACTS  
The Parties  
2.  
The Applicant, Dufferin, is a Quebec corporation and is one of Canada’s largest heavy  
civil construction companies. The Applicant, Aecon Construction and Materials Limited  
(“ACML”), is an Ontario corporation and a subsidiary of the Aecon Group, Canada’s largest  
public infrastructure contractor.  
2
3.  
The Applicants are a joint venture consisting of Dufferin Construction, a Division of  
CRH Canada Group Inc. (“Dufferin”), and Aecon Construction and Materials Limited  
(“ACML”) (collectively, “RapidLINK” or the “Applicants”) formed for the purpose of  
bidding on, entering into, and performing the contract for the design and construction of the  
VivaNEXT Yonge Street Bus Rapidway Design-Build Project (“the Project”).  
The Project  
4.  
The “Project” is comprised of the design and construction of a dedicated bus rapid way  
along three non-contiguous segments of Yonge Street, as part of the Bus Rapid Transit  
network, being constructed by Metrolinx and The Regional Municipality of York as Owner  
(the “Owner”). The Project required the widening of Yonge Street to accommodate new  
dedicated bus lands and the construction of twenty new center-median bus stations in  
Richmond Hill and Newmarket.  
5.  
On May 16, 2014, the Applicants as RapidLINK entered into a $260.5 million Design  
Build Agreement (“DBA”) with the Owner under which RapidLINK agreed to design,  
construct and commission the Project in accordance with certain requirements.  
6.  
The Applicants as RapidLINK entered into a $22.1 million Design Service Agreement  
(“DSA”) with the Respondent Morrison Hershfield (the Respondent), a private engineering  
firm, under which the Respondent as sub-contractor agreed to perform the design-related  
requirements of the DBA on behalf of the Applicants, as more particularly described in  
Appendix A to the DSA.  
7.  
Payment to the Respondent was by milestones set out in Appendix B to the DSA, from  
the commencement of work through to December 2018, a period of four years.  
8.  
All changes to the Respondent’s scope of services were to be priced based on stipulated  
rates in Appendix A3 of the DSA. The rate charts in the DSA provided for various design-  
phase staff positions as well as construction-phase staff positions, over the anticipated  
duration of the Project, and included 4% annual escalation.  
3
9.  
Under the DSA, RapidLINK was required to review the Respondent’s monthly invoices  
and make payment following approval. RapidLINK was required to identify any disputed  
items in an invoice to the Respondent within 10 days of receiving the invoice. Except for  
properly disputed items, if the Respondent was in material compliance with its obligations  
under the DSA, RapidLINK was required to pay the Respondent within 45 days of receiving  
an invoice.  
10. Changes to the Respondent’s work could arise from changes by the Owner with respect  
to the DBA, or changes by RapidLINK with respect to the DSA. Any changes to the fixed  
Agreement Price ($22.1) were to be determined by using the staff charge rates provided in  
Appendix A to the DSA.  
11. RapidLINK was obligated under the DSA to pursue the Respondent’s claims for  
compensation arising from Owner driven changes, on the Respondent’s behalf.  
12. During the Project, circumstances arose wherein the Respondent claimed additional  
compensation and time allegedly arising from Owner driven changes. The Respondent’s  
claims were submitted to RapidLINK as a “Contemplated Change Notice” (referred to as a  
“CCN”) which recorded each change, the nature of the change, and the projected costs, and  
time impact of the change. Following review of the CCN, RapidLINK would prepare a  
Change Request Notice (CRN) for submission to the Owner. The CRNs would incorporate  
the Respondent’s CCNs plus a 15% markup as permitted by the DBA, for RapidLINK’s costs  
associated with the Change. RapidLINK also added its own additional direct costs, and a  
description of the extra work it was required to undertake because of the Change. The Owner  
would then accept or reject the CRN. If accepted, the Owner would issue a Change Order to  
RapidLINK who would issue its own Change Order to the Respondent under the DSA.  
13. RapidLINK issued CRNs and passed through most of the Respondent’s claims to the  
Owner, and if accepted by the Owner RapidLINK provided the Respondent with an updated  
“Change Log” showing CRNs and Change Orders issued under the DBA.  
14. During the Project, the Owner rejected many of RapidLINK’s CRNs, including those  
4
for extra costs.  
The Mediation  
15. Based on the many unresolved CRNs, RapidLINK proceeded to mediation against the  
Owner claiming $149 million and significant additional time. RapidLINK’s claim as against  
the Owner included the Respondent’s CCN claims, totaling approximately $33 million,  
together with all other sub-contractor claims.  
16. Prior to attending mediation, RapidLINK requested that the Respondent prepare a  
mediation brief for several of its largest claims for use at mediation against the Owner. The  
Respondent was not otherwise allowed to participate in the mediation.  
17. On May 24, 2019, the Applicants as RapidLINK and the Owner entered a mediated  
settlement of all claims in dispute, including all sub-contractor claims, for payment in the  
amount of $63 million. There was a release by the Applicants of the Owner from all the  
Respondent’s claims. The mediated agreement also provided for a schedule extension for  
RapidLINK and a release from liquidated damages to be replaced by milestone payments  
upon timely substantial completion by the Applicants of the three project segments.  
18. As a result of the mediated settlement, all claims advanced by the Respondent were  
settled as between the Owner and the Applicants as RapidLINK. Pursuant to Article 11.2 of  
the DSA, RapidLINK was required to assume any liability that may arise to the Respondent  
for any outstanding and unsatisfied claims.  
19. Following mediation, RapidLINK advised the Respondent that they had no entitlement  
to any additional payments for any additional services.  
The Arbitration Hearing  
20. On August 15, 2019, the Respondent filed a Request for Arbitration, and commenced  
the Arbitration process as against the Applicants seeking payment of approximately $33  
million.  
5
21.  
On September 12, 2019, the Respondent wrote to the Applicants proposing three  
arbitrators.  
22.  
On September 17, 2019, the Applicants rejected the Respondent’s proposed arbitrators  
and suggested three other arbitrators, one of whom was Stephen R. Morrison, an experienced  
lawyer, construction law specialist, and certified Arbitrator to conduct the Arbitration.  
23.  
On September 23, 2019, the Respondent accepted the Applicants’ proposal to appoint  
Mr. Morrison as sole arbitrator (the “Arbitrator”).  
24. On October 24, 2019, the Applicants by Answer to Request for Arbitration and  
Counterclaim, denied the claims made by the Respondent and commenced a counterclaim in  
relation to alleged delays and damages suffered due to the Respondent’s alleged breaches of  
contract and negligence.  
25. Pursuant to the Arbitration Agreement between the parties (the “Arbitration  
Agreement”), the Arbitration was conducted under the ADRIC National Arbitration Rules  
2016 (the “ADRIC Rules”).  
26. Pursuant to Section 2(1) of the Arbitration Act, 1991, S.O. 1991, c. 17, the Arbitration  
was also governed by the provisions of the Act.  
27. There were two pre-hearing applications:  
(i) The Interim Relief Application  
On November 22, 2019, the Respondent commenced an application for interim relief,  
seeking inter alia, an interim award without prejudice to the final determination of the  
Respondent’s claims (the “Interim Relief Application”) which application was  
dismissed by the Arbitrator on February 6, 2020.  
6
(ii) The Redfern Document Request Application  
On June 28, July 3, and July 13, 2020, the Arbitrator issued decisions in respect of the  
Applicants’ objection to several Redfern document requests and ordered that  
production of documents requested by the Respondent, which the Applicants assert  
included documents beyond the requirement of being “narrow, focused and specific”  
and documents which the Applicants claimed settlement privilege.  
28. Following the release of the Interim Distribution Application and the Redfern  
Decisions, but before the commencement of the Arbitration hearing on November 24, 2020,  
the Applicants determined that the Respondent was due a further $2.43 million for additional  
CM and ESDC services delayed over time and paid the additional $2.43 million to the  
Respondent prior to the commencement of the Arbitration hearing.  
29. The Arbitration Hearing commenced before the Arbitrator on November 24, 2020.  
30. The Respondent sought payment of approximately $33 million based on an alleged  
significant increase to the required level of services over an extended period due to material  
deviations to the construction schedule. The Respondent submitted that RapidLINK was  
initially aligned with the Respondent and agreed that the delays were the fault of the Owner.  
The Respondent claimed that this former alignment of positions was factual. The Respondent  
claimed that now that RapidLINK had settled with the Owner – they were incentivized to  
eliminate the Respondent’s claims - and are making an alternative argument based on  
alternative facts.  
31. The Applicants submitted that the fact that they have reached a settlement with the  
Owner does not give rise to a cause of action. Settlement does not give rise to a right to  
damages or entitlement to relief in and of itself. The Respondent cannot base its claim on the  
fact that it didn’t get what it wanted from a mediated settlement with the Owner. Instead, the  
Applicants submitted that the Respondent is required to point to obligations under the DSA  
which incorporate the obligations of the DBA to base its clam. The Applicants submitted that  
the Respondent agreed to a lump-sum fixed price and it didn’t matter how many hours they  
had allocated for the Project, the Respondent had an obligation to fill all contract requirements  
7
for that lump-sum price which was paid on the milestone dates provided for in the DSA.  
32. The Applicants further submitted that the Respondent’s argument that RapidLINK was  
supportive of the Respondent’s claims until mediation and thereafter were “thrown under the  
bus” is simply inconsistent with, and ignores, the contract obligations, which pursuant to  
Section 10.4 of the DSA, required the Applicants to pursue any claims of the Respondent with  
the Owner in a timely fashion. The Applicants argued that had RapidLINK failed to pursue  
the obligations or claims advanced by the Respondent then they might have been liable  
directly for an issue with respect to an Owner default. However, RapidLINK did pursue the  
Respondent’s claims against the Owner as part of their contractual obligation. This does not  
amount to an acknowledgment of the Respondent’s claims or a waiver of RapidLINK’s right  
to dispute the Respondent’s claims. Simply stated, RapidLINK cannot be found to have  
waived their right to dispute the Respondent’s claims simply because they complied with their  
contractual obligations.  
33. The Applicants asserted that any entitlement for the Respondent’s claims must be found  
on the facts and under the terms of the DBA and cannot be inferred due to the obligation  
imposed upon the Applicants pursuant to Section 10.4.  
34. The Applicants noted that the original fixed price for the Respondent’s DSA was $22.1  
million. Despite this fixed price, the Respondent was paid approximately $26.7 million due  
to incorporating changes and other amounts paid by the Applicants over and above the  
contract price. As noted, following mediation the Applicants paid an additional $2.43 million  
such that at the date of commencement of the Arbitration hearing the Respondent had been  
paid the sum of $29.13 million for services performed pursuant to the DSA.  
35. The Applicants advised that from the $63 million settlement, they have paid a total of  
$9.1 million to subcontractors, including the Respondent, due to the impact of delay. The  
Applicants note that as a result they received an additional $53.9 million, or less than 20% of  
the original $149 million DBA value.  
36. The Applicants argued that contrary to the Respondent’s argument, there has been no  
8
“throwing the Respondent under the bus”. Instead, the Applicants alleged that the delays and  
increased costs arose due to the Respondent’s own acts and/or omissions and/or their own  
breach of the DSA. The Applicants disputed the Respondent’s entitlement to any additional  
compensation. The Applicants stated that if anything is owing to the Respondent, it must be  
based on some contractual right, and not because they have spent more than their lump-sum  
budget, or didn’t anticipate the extent of the work, or the Owner somehow acted unfairly or  
in an unanticipated manner. There must be a contractual basis for the claims.  
37. As noted, by this application the Applicants seek an Order removing the Arbitrator,  
Stephen Morrison, appointed with respect to the Arbitration conducted between the  
Applicants and the Respondent. The Applicants seek the removal of the Arbitrator fourteen  
days following commencement of the Arbitration after the bulk of the evidence was received,  
based on the Arbitrator’s conduct, which the Applicants allege taken as a whole, has created  
a reasonable apprehension of bias.  
38. The Applicants claim that the Arbitrator’s interventions during the hearing crossed  
from adjudication to advocacy with the only explanation being a predisposition by the  
Arbitrator towards the Respondent’s positions.  
39. The Applicants submit that the following conduct evidences a pattern of objectively  
biased conduct by the Arbitrator against the Applicants, its witnesses, and their evidence:  
(a) making repeated statements of position (rather than questions) and examining the  
Applicants’ witnesses in a manner that indicated a pre-judgment of issues and  
credibility;  
(b) advocating positions favourable to the Respondent, seeking admissions adverse to the  
Applicants, and engaging in cross-examination of the Applicants’ lay witnesses; and  
(c) failing to demonstrate a balanced/proportionate approach with witnesses of both  
parties.  
40. The Applicants argue that the Arbitrator’s conduct created a reasonable perception that  
it was more likely than not that the Arbitrator, whether consciously or unconsciously, would  
9
not decide the matter fairly.  
41. For these reasons, the Applicants request the removal of the Arbitrator to dispel the  
perception of bias, and to ensure that each party can have “confidence in the independence of  
mind of those who are to sit in judgment on him and his affairs”.  
42. The Respondent denies that the Arbitrator is biased, that there is any apprehension of  
bias, or that the Arbitrator has acted improperly. The Respondent argues that the Arbitrator’s  
interventions were intended to provide the witnesses the opportunity to fully explain their  
positions and to provide a “full answer and defence” to the Arbitrator’s concerns prior to any  
decision being rendered.  
43. The Respondent submits that the Arbitrator explained at the outset that this would be  
his approach and that the Arbitrator’s interventions were fair and reasonable and specifically  
targeted to permit witnesses to fully explain their positions including any perceived  
inconsistencies prior to any decision being rendered by the Arbitrator.  
44. The Respondent submits that the stated intent of the Arbitrator’s interventions and the  
nature and effect of those interventions defeat the Applicant’s arguments of bias. The  
Respondent further submits that the Arbitrator’s interventions in and of themselves operate  
against any claim of bias or apprehension of bias and as such the application must fail.  
45. Finally, the Respondent submits that the application brought fourteen days after  
commencement of the Arbitration, is brought out of time and for tactical purposes only. In all  
the circumstances of this case, the Respondents submits the application must fail.  
46. On October 24, 2019, the Applicants delivered their Answer to Request for Arbitration  
and Counterclaim.  
47. In November 2019, the parties agreed to conduct the Arbitration pursuant to the ADRIC  
National Arbitration Rules 2016 (the “ADRIC Rules”).  
10  
48. On May 15, 2020, the parties agreed to a procedural order setting out the procedural  
rules for the Arbitration (“Procedural Order No. 1”).  
49.  
Procedural Order No. 1 required, among other matters, the exchange of documents,  
three rounds of witness statements, three rounds of expert reports, written pre-hearing  
submissions, and post-hearing submissions following the Arbitration hearing.  
50.  
All direct evidence in the Arbitration was by written statements and expert reports,  
which appended all documents relied on by the parties. The Arbitration was subject to a chess  
clock, and each party was allocated a fixed and equal amount of time to make opening  
statements, conduct direct examinations, re-examinations, and make oral submissions.  
51.  
Paragraph 51 of Procedural Order No. 1, specifically permitted the Arbitrator to ask  
questions of any fact or expert witness and to interject with questions at any time.  
52.  
Prior to the commencement of the Arbitration, the parties exchanged 32 witness  
statements as follows:  
(a)  
(b)  
53.  
the Applicants delivered six affirmative witness statements from eight witnesses;  
three reply witness statements from five witnesses; and three surrebuttal witness  
statements from five witnesses; and  
the Respondent delivered five affirmative witness statements; eight reply witness  
statements; and seven surrebuttal witness statements.  
The parties also exchanged 16 expert reports: the Applicants delivered five, and the  
Respondent delivered 11.  
54.  
As noted by the Respondent, in total, 2,658 pages of written direct evidence was  
exchanged and provided to the Arbitrator in the months prior to the hearing including  
thousands of exhibits of contemporaneous project records, emails, formal correspondence,  
meeting minutes, monthly reports, and design specifications and drawings, among other  
documents.  
11  
55.  
On November 13, 2020, the parties delivered their respective pre-hearing submissions,  
both of which were extensively hyperlinked to specific supporting evidence.  
56. The Arbitration commenced on November 24, 2020, originally scheduled for 15 days.  
However, just before adjourning for the day on December 11, 2020, after all evidence in chief  
was complete and after 14 days of opening submissions, cross-examinations, and re-  
examinations, and at a point when the Applicants had used their allotted chess clock time, the  
Applicants notified the Arbitrator and the Respondent that they intended to bring an  
application to remove the Arbitrator for bias.  
57. That same day, being December 11, 2020, the Applicants delivered the written  
application to the Arbitrator and the Respondent. On December 17, 2020, the Respondent  
replied and on December 20, 2020, the Applicants delivered a surrebuttal.  
58. On December 24, 2020, the Arbitrator released his reasons for dismissing the  
Applicants’ bias application.  
59. On January 5, 2021, the Applicants served the within application.  
60. In January and February of 2021, on consent, the evidentiary hearing of the arbitration  
continued, with further chess clock time allotted to the Applicants.  
61. In March and April of 2021, the parties exchanged written closing submissions, and the  
Arbitrator advised he would not release his Award until the Court has ruled on the bias  
application.  
62. The bias application was heard by me on November 29, 2021, and November 30, 2021,  
with final filings, including the complete transcripts from the arbitration hearing, received by  
the Court in January of 2022.  
63. The within application is not an appeal of the Arbitrator’s Reasons for Decision but is  
12  
a hearing de novo.  
III. ISSUES ON THE APPLICATION  
64. There are three threshold issues and two central issues raised in this Application.  
65. The three threshold issues raised by the Applicants are as follows:  
(i) Is it open to the Applicants to apply to this Court for removal of the Arbitrator  
where it has challenged the Arbitrator under the ADRIC Rules?  
(ii) Did the parties authorize the Arbitrator to take on an inquisitorial role?  
(iii) Is a party obligated to object to biased conduct prior to bringing a bias challenge  
under ADRIC Rules?  
66. The two central issues are as follows:  
(iv) Is the Application out of time under the ADRIC Rules; and if not,  
(v) Does the Arbitrator’s conduct give rise to a reasonable apprehension of bias  
such as to warrant his removal.  
IV. LAW AND ARGUMENT  
i.  
Does the Court Have Jurisdiction to Hear this Application?  
67. The Applicants raise as a threshold issue whether Rule 3.6 of the ADRIC Rules allows  
for recourse to the Court following the arbitral tribunal’s decision on a challenge.  
68. The Applicants advise that this issue was raised by the Arbitrator in his Challenge  
Decision and was not raised by the parties who accept this Court’s jurisdiction to determine  
the challenge on a de novo basis.  
69. The within Arbitration is governed by the Ontario Arbitration Act (the Act) as amended  
by agreement of the parties through the application of the ADRIC Rules.  
13  
70. Subsection 13 of the Act permits a party to challenge an arbitrator on grounds that  
“circumstances exist that may give rise to a reasonable apprehension of bias”.  
71. Subsections 13(3) and 13 (5) of the Act require the challenge to be made to the arbitrator  
within 15 days of a party becoming aware of the grounds for the challenge and the challenge  
be decided by the arbitrator in the first instance. Subsection 13(6) of the Act permits a party  
to make an application to the Court to decide the issue de novo thus expressly granting this  
Court jurisdiction to determine the issue following the arbitrator’s decision.  
72. Pursuant to the ADRIC Rules, the process for challenging an Arbitrator is set out at Rule  
3.6. Rule 3.6.1 provides that a party may challenge an Arbitrator if “circumstances give rise  
to justifiable doubts about the Arbitrator’s independence or impartiality”. Rule 3.6.2 provides  
that a party may not challenge an Arbitrator more than seven days after becoming aware of  
any grounds referred to in 3.6.1.  
73. Rule 3.6 sets out the process to initiate and complete the challenge within the confines  
of the arbitration hearing. However, it does not apply to the procedure to seek a judicial review  
of the arbitral tribunal’s decision.  
74. It is the Arbitration Act that sets out the procedure for judicial review.  
75. Section 13(6) of the Act establishes the procedure to be followed for when a party seeks  
judicial review of an arbitral tribunal’s decision. Section 13(6) provides that within ten days  
of being notified of the arbitral tribunal’s decision, a party may make an application to the  
Court to decide the issue and, in the case of the challenging party, to remove the arbitrator.  
76. Section 3 of the Act provides that the parties to an arbitration agreement may agree,  
expressly or by implication, to vary or exclude any provision of the Act, except certain  
specified provisions.  
77. Section 13(6) of the Act is not excluded under section 3 of the Act and was not varied  
14  
or excluded by the parties.  
78. Rule 1.34 of the ADRIC Rules provides that if there is a conflict between the Rules and  
legislation that applies in respect of an arbitration, the Rules apply except to the extent that  
they conflict with any legislative provision that cannot be varied or excluded by agreement.  
79. Rule 1.35 of the ADRIC Rules provides that the parties may agree in writing to vary or  
exclude any of the Rules including 3.6 which could have been varied or excluded but was not.  
80. Subsection 13(6) of the Act expressly grants this Court jurisdiction to determine the  
issue on a de novo basis. The right to seek judicial review granted by s. 13(6) was not varied  
or excluded by agreement or by the ADRIC Rules. In the circumstances, this Court has  
jurisdiction to determine the issue on a de novo basis.  
ii.  
The Arbitration Process  
81. The Applicants submit that the second threshold issue required to be determined is  
whether the Arbitrator’s conclusion that the parties have given him a “mandate to engage in  
a somewhat more inquisitorial process”, is a correct conclusion.  
82. As the within application is being determined de novo and is not an appeal of the  
Arbitrator’s decision, it is unnecessary to determine whether the Arbitrator’s reasonings or  
conclusions were correct.  
83. The focus of this application is whether the Applicants have proven that the conduct  
of the Arbitrator gave rise to a reasonable apprehension of bias, and not otherwise. The  
Arbitrator’s conclusions are irrelevant to my review. As such, it is unnecessary to determine  
this issue.  
iii. Requirement to Object  
84. The Applicants raise as the third threshold issue, a further issue raised by the  
Arbitrator, namely whether Rule 2.4.2 required the Applicants to object prior to  
15  
commencing an application under Rule 3.6.1 of the ADRIC Rules.  
85. Rule 2.4.2 of the ADRIC Rules provides that a party that knows that a “provision or  
requirement” under the Rules was not followed but does not object promptly waives its  
right to object unless the Tribunal orders otherwise.  
86. The Applicants submit that Rule 2.4.2 does not apply to a challenge under Rule 3.6.1  
and assert that the duty to object is not a prerequisite to commencing a challenge.  
87. I accept the Applicants submission in this regard.  
88. Rule 3.6.1 speaks to whether “circumstances” give rise to “justifiable doubts” (both  
plural). Rule 2.4.2, speaks to a singular event, being “a provision or requirement”,  
independently discernable as objectional.  
89. The duty to remain wholly impartial remains throughout the duration of the arbitration  
proceeding (Rule 3.3.2). While one ruling, comment or question may not raise “justifiable  
doubts”, continuous rulings, or a series of comments and questions may raise “justifiable  
doubts”. It would be nonsensical to interpret the Rules to mean that a failure to object to a  
singular act would permit a partial or biased arbitrator to remain seized where  
“circumstances” give rise to “justifiable doubts”.  
90. The determination to challenge an arbitral tribunal for bias requires careful  
consideration by counsel and is not determined by a provision or requirement but by  
cumulative events described by the Rules as being “circumstances that give rise to  
justifiable doubts”.  
91. Rule 2.4.2 does not apply to Rule 3.6.2 and does not lend itself to be interpreted to  
require a party to object prior to commencing an application under Rule 3.6.  
The Central Issues  
92. As previously noted, the central issues in this application are:  
16  
(iv) is the Application out of time under the ADRIC Rules; and if not,  
(v) does the Arbitrator’s conduct gives rise to a reasonable apprehension of bias such  
as to warrant his removal.  
(iv) Limitation P  
93. As a preliminary matter, the Respondent argues that the application to remove the  
Arbitrator is out of time and must be dismissed for lack of jurisdiction.  
94. The Respondent submits that the grounds upon which the Applicants rely arose and  
were known to the Applicants many months prior to the start of the Arbitration and no  
later than the opening day of the hearing. Despite this knowledge, the Respondent argues  
that the Applicants failed to file an objection or challenge in a timely manner, choosing  
instead to let the arbitration hearing proceed and run its course.  
95. The Respondent submits that although the Arbitration is governed by the Act, it is  
subject to the ADRIC Rules. As such, the timing requirements for bringing a challenge  
application are expressly modified.  
96. ADRIC Rule 3.6.1 provides that an arbitrator may be challenged if circumstances  
give rise to justifiable doubts about the arbitrator’s independence or impartiality. ADRIC  
Rule 3.6.2 provides that any challenge to the arbitrator must be made within seven days  
after becoming aware of grounds referred to in Rule 3.6.1.  
97. The Respondent notes that the seven-day limitation period is an express variation to  
Section 13 of the Act which would otherwise require the challenge to be made within 15  
days.  
98. The Respondent submits that the Applicants were required to commence their  
challenge within seven days after becoming aware of “any grounds” for the challenge.  
17  
99. The Respondent submits that the examples relied upon by the Applicants evidencing  
bias arose on the first day of the arbitration and continued daily for 13 further days before  
the challenge application was brought. In these circumstances, the Respondent submits  
that the Applicants failed to bring the application within the seven-day period  
contemplated by Rule 3.6.2, is out of time, and fails for lack of jurisdiction.  
100. The Applicants argue that the grounds for the application are cumulative. The  
circumstances that gave rise to justifiable doubts about the arbitrator’s independence or  
impartiality did not cumulatively rise to the level necessary to bring an application until  
the date the application was commenced.  
101. In these circumstances, the Applicants argue that the application was brought within  
the period provided by Rule 3.6.2.  
102. For the purposes of this application, I accept the Respondent’s position that the  
stricter seven-day period provided by the ADRIC Rules is the applicable period. However,  
I also accept the Applicants’ position that it is the cumulative effect of the Arbitrator’s  
conduct and not necessarily specific acts that give rise to justifiable doubts about the  
arbitrator’s independence or impartiality.  
103. Given that the Applicants’ counsel was actively involved in the ongoing Arbitration  
hearing, it is not unreasonable to accept that counsel’s ability to determine or identify  
“circumstances” sufficient to give rise to “justifiable doubts” about the independence and  
impartiality of the Arbitrator was impacted by the ongoing arbitration.  
104. In the circumstances of this case, and for the reasons for decision that follow  
regarding the issue of reasonable apprehension of bias, I find that the Applicants  
commenced the application in a timely manner within the applicable seven-day period as  
required by Rule 3.6.2.  
105. However, if I am mistaken in this regard, I note that Rule 2.4.1 provides that a  
“failure to comply with the Rules is an irregularity and does not nullify an arbitration or a  
18  
step, document, award, ruling, order, or decision in the arbitration.”  
106. The cornerstone of any arbitration is the existence of a wholly impartial and  
independent arbitrator. The requirement that an arbitrator be and remain wholly impartial  
and independent is enshrined in the Rules and cannot be varied or amended.  
107. In the circumstances of this case, it would be unjust to deny the Applicants the  
ability to challenge the arbitrator for bias where the impartiality of the arbitrator is  
required for both procedural fairness and the internal integrity of the arbitration process.  
For this reason, had the Applicants missed the seven-day period, I would have otherwise  
permitted the application to be heard pursuant to Rule 2.4.1.  
v.  
Reasonable Apprehension of Bias – The Legal Test  
108. The legal test for determining reasonable apprehension of bias is well-established  
and agreed upon by the parties.  
109. In Committee for Justice & Liberty v Canada (National Energy Board), [1978] 1  
SCR 369, the following articulation of the test by Grandpré J. was adopted by the majority  
of the Supreme Court of Canada:  
... the apprehension of bias must be a reasonable one, held by reasonable and right-  
minded persons, applying themselves to the question and obtaining thereon the  
required information. [T]hat test is "what would an informed person, viewing the  
matter realistically and practically — and having thought the matter through —  
conclude. Would he think that it is more likely than not that [the decision-maker],  
whether consciously or unconsciously, would not decide fairly."  
110. The Court stated that this test involved a “two-fold objective element”:  
(a)  
(b)  
the informed, right-minded, person considering the alleged bias must be  
reasonable; and  
the apprehension of bias itself must be reasonable in the circumstances.  
111. The Supreme Court has linked the issue of bias to the dual need for impartiality, and  
the assurance of a fair adjudicative process in both reality and appearance. The analysis  
19  
does not require an assessment or determination of whether the decision maker is actually  
biased, the appearance of bias is sufficient. (See Yukon Francophone School Board,  
Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25 at paras 20 &  
22.).  
112. The elements necessary to finding a reasonable apprehension of bias and the level of  
proof required before an arbitral tribunal is removed by the court includes the following  
relevant principles:  
1.  
2.  
3.  
the threshold for finding a real or perceived bias is high (A.T. Kearney Ltd. V.  
Harrison, 2003 32908, at para 7);  
the presumption of impartiality is high (Wewaykum Indian Band v. Canada,  
[2003] 2 S.C.R. 259, at para 59);  
the inquiry is objective requiring a realistic and practical review of all the  
circumstances from the perspective of a reasonable person. (Committee for  
Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369);  
4.  
5.  
a challenge based on reasonable apprehension of bias will be unsuccessful  
without evidence to support the allegation beyond a mere suspicion that the  
hearing officer would not bring an impartial mind to bear. Mere suspicion is  
not enough (G.W.L. Properties Ltd. V. W.R. Grace & Co. of Canada Ltd.,  
1992 834 at para 13 (B.C. Ct. App.)); and  
when considering bias, whether actual or the appearance of bias, context  
matters (Telesat Canada v. Boeing Satellite Systems International, Inc, 2010  
ONSC 4023).  
113. As noted by the Respondent, private commercial arbitration is critically different  
from litigation:  
1.  
Arbitration is a private proceeding, in which the decision maker is chosen by the  
parties;  
2.  
Arbitrations are typically confidential. The procedure and the outcomes do not  
impact the administration of justice, nor the perception of the administration of  
justice;  
20  
3.  
4.  
Arbitrations are governed by different institutional rules and procedures; and  
Parties to an arbitration are free to agree upon their process, including the right of  
the arbitrator to question witnesses as occurred in the present case.  
Indicia of a Reasonable Apprehension of Bias  
114. Any review of the Arbitrator’s conduct must be considered in context and not  
through the review of selected excerpts or specifically chosen terms, phrases, or questions  
posed.  
115. The Arbitrator’s conduct must also be considered with the understanding that the  
Arbitrator was chosen for his subject matter expertise, education, and experience.  
116. Further, in the present case, the Arbitrator’s conduct must also be considered with  
the understanding that the Arbitrator had already heard and determined two issues  
between the parties, received all evidence in chief, all rebuttal and reply witness  
statements, all opening arguments prior to the commencement of the hearing, and had  
“read ahead” prior to the opening statements.  
117. With respect to the issue of context, following argument of the application, at the  
request of the court, the parties delivered the complete transcripts from the Arbitration for  
review.  
118. The transcripts were lengthy and required extensive time to review. However, the  
issue before the court is one of fairness, which in the present case, dictated a thorough  
review of the Arbitrator’s conduct in the context of the entirety of the arbitration  
proceeding to the date of the bias application, for balance, fairness, and oversight.  
119. In the present case, Procedural Order No. 1 provided that the Arbitrator could  
interject and ask questions of any witness at any time. By the opening day of the  
arbitration, the Arbitrator had significant familiarity with the details and facts of the case  
having determined two interim hearings and having received and read a great deal of  
21  
material prior to commencement of the proceeding.  
120. Further, the Arbitrator advised that in preparation of each day of the hearing he had  
read the upcoming witness statements and made notes of his comments and queries and  
prepared questions for the witnesses. To the extent that any of his notes, queries or  
questions were not answered during the in-chief or cross-examination, the Arbitrator  
referred to his notes and ensured that all queries that he had privately considered were  
answered on the record.  
121. The Arbitrator proceeded in this manner for every witness, regardless of whether the  
witness appeared for the Applicants or the Respondent. Further, while the Arbitrator did  
not ask questions of all witnesses, he prepared notes and generally had numerous  
questions for most witnesses.  
122. The transcripts evidence that the Arbitrator attended each day fully prepared for the  
hearing having read, considered, and made notations regarding the proposed testimony  
being proffered each day. The Arbitrator’s questions and comments expose that he has a  
high level of knowledge and experience in the area being arbitrated. The transcripts  
further evidence that the Arbitrator possessed the sought after “subject matter expertise”  
which expertise is strikingly evident throughout the written record as was the Arbitrator’s  
ability to short-cut the issues to obtain answers to queries that were otherwise not  
forthcoming.  
123. The transcripts do not read like an ordinary court proceeding. The Arbitrator  
purposefully and intentionally prepared questions for every witness. The Arbitrator  
intervened whenever evidence or testimony caused him to question the nature, effect, or  
reliability of that evidence or testimony regardless of whether the witness was called for  
the Applicants or the Respondent. Contrary to the position of the Applicants, it is my  
view on reading the transcripts, that the Arbitrator’s interventions were intended to ensure  
“a fair and independent process” and to enable the parties to provide their “full answer  
and defence” and not otherwise.  
22  
124. Also, contrary to the Applicants’ submissions that the Arbitrator’s impugned  
conduct was focused on the Applicants’ witnesses, I found it necessary to re-trace and re-  
read the portions involving the questioning by the Arbitrator to determine which party had  
called a specific witness being questioned or queried by the Arbitrator. Having completed  
this task, I found no significant difference in the Arbitrator’s approach to any of the  
witnesses.  
125. The Arbitrator was engaged and asked incisive questions of most, if not all,  
witnesses called to testify. The length of his questions often depended on the answers  
provided and were not (in my view) dependent on whether the witness was called by the  
Applicants or the Respondent.  
126. Further, to the extent that the Arbitrator did question most (if not all) of the  
Applicants’ engineers as to whether they had breached their professional duties, given  
their differing positions taken regarding the validity of the Respondent’s claims over the  
course of the project, mediation, and arbitration - the Arbitrator’s question flows logically  
as a result of his subject matter expertise and could have easily been anticipated by the  
witnesses. Further, the “integrity” question was not posed in a manner that suggested  
impropriety on the part of the witness instead it was posed to allow the witness to provide  
a fulsome answer for the Arbitrator’s benefit to respond to the Respondent’s theory of the  
case.  
127. The Arbitrator was eminently prepared, had pre-read the opening submissions and  
witness statements and had made notes prior to each days’ attendance. The Arbitrator  
clearly had a very high level of knowledge regarding the intricacies of the Project and the  
disputes between the parties. The Arbitrator’s questions clearly evidenced his subject  
matter expertise.  
128. The Arbitrator was in a much different position than a trial judge, in terms of  
evidence, experience, and expertise.  
129. As noted by the Supreme Court in R.D.S. v. The Queen et al, [1997] 3 S.C.R. 484, at  
23  
para 136, “allegations of reasonable apprehension of bias are entirely fact-specific” and  
the threshold for finding real or perceived bias is high “since it calls into question both the  
personal integrity of the adjudicator and the integrity of the administration of justice. The  
grounds must be substantial, and the onus is on the party seeking to disqualify to bring  
forward evidence to satisfy the test”. (A.T. Kearney Ltd. V. Harrison, [2003] O.J. No. 438  
(Ont. S.C.J.) at para 7 (Lax).  
130. Further, the inquiry to determine whether there is a reasonable apprehension of bias  
is “highly fact specific”. (Roberts v. R. [2003] 2 S.C.R. 259 (S.C.C.) p. 295 (para 77).  
131. In the present case, the Arbitrator was aware that during construction the Applicants  
sought payment of the Respondent’s CCN claims as well as the Applicants’ CNR claims  
all of which were considered “legitimate claims” at the time payment was sought.  
132. The Arbitrator was also aware that the Applicants sought payment of the  
Respondent’s disputed CCN claims as well as the Applicants’ disputed CNR claims  
through mediation with the Owner which resulted in a binding settlement that provided  
payment to the Applicants but excluded any payout for the Respondent’s pass-through  
claims.  
133. The Arbitrator was specifically chosen for his experience and expertise which  
provided him with the ability to “short cut” the issues to get to the heart of the matter. He  
understood the nature of the relationships between the parties and the duties that were  
imposed on the Applicants to pursue payment of legitimate claims on behalf of the  
Respondent. The high level of his understanding of the entire process was evident by each  
question posed by the Arbitrator.  
134. The Applicants allege that the Arbitrator asserted himself upon the parties, cross-  
examined witnesses, and effectively entered the fray and became an advocate for the  
Respondent. I disagree.  
135. The Arbitrator did ask difficult questions, but he asked them of all witnesses and did  
24  
not limit his queries to the Applicants’ witnesses.  
136. While I was initially concerned with the quantity of questions posed by the  
Arbitrator to the witnesses, upon reading the entire transcripts I was never concerned that  
the Arbitrator had “pre-judged” any of the issues before him. Instead, my review of the  
Arbitrator’s “interference” in the process, is entirely supportive of the view that the  
Arbitrator was highly experienced, skilled, and knowledgeable and was engaging in the  
very “short-cuts” that legitimize hiring an experienced Arbitrator with subject matter  
expertise.  
137. In their survey of authorities across private law systems, Glaholt and Rotterdam  
(Arbitrator Questioning: Sphinx or Skeptic?, 2016 J. Can. C. Construction Law. 81) outline  
seven permissible areas of questioning by an arbitrator, subject to the caveat that even these  
questions must be posed in a manner that does not create an appearance of one-sidedness or  
unfairness:  
1.  
Ensuring that the arbitrator has understood what the witness is saying.  
2.  
3.  
4.  
5.  
6.  
7.  
Clearing up points that have been left obscure.  
Ensuring that the arbitrator has correctly understood technical detail.  
Maintaining an orderly, professional approach by counsel.  
Protecting witnesses from misleading or harassing questions.  
Moving the arbitration along at an appropriate pace.  
Excluding patent irrelevancies and discouraging repetition.  
138. The authors note that in complex construction arbitrations (which aptly describes  
the within proceeding), arbitrator questioning usually occurs quite naturally during an  
evidentiary hearing, without incident and generally arbitrators limit their questions to  
witnesses to those they consider necessary to clarify testimony or to obtain information  
they consider necessary to make a ruling.  
25  
139. The Applicants submit that questions outside the realm of these areas may indicate a  
pre-judgment of issues or credibility, or undue and one-sided interventions, and thus  
justify a reasonable apprehension of bias.  
140. However, the authors of the article note that while it would be unusual for  
arbitrators to adopt a long line of questioning with the objective of attacking the  
credibility of a witness, there may be cases where specific questions are designed to test  
credibility when a case turns on whether the testimony of a witness is reliable. (Arbitrator  
Questioning, supra, at p. 12 quoting N. Blackably, C. Parasides, Redfern and Hunter on  
International Arbitration, 5th ed. (Oxford: Oxford University Press, 2009) at 6.206.)  
141. Referenced in the above noted article, were reviews of several cases including  
Lummus Global Amazonas S.A. v. Aguaytia Energy del Peru S.R. Ltda., where a party to  
an ICC arbitration attempted to have the award set aside on the basis, among other things,  
of allegedly inappropriately questioning of witnesses by the tribunal. The Court in  
Lummus held that the tribunal’s questioning had been aimed at assisting the panel in  
understanding the issues and was appropriate to reaching an efficient and fair resolution of  
those issues. The court further found that on review of the transcripts each of the panel  
members asked questions of the witnesses, often vigorously. The hearings involved highly  
technical and detailed subjects, about which the arbitrators had acknowledged substantive  
expertise and experience, as well as experience as arbitrators. The court found that  
counsel did not show that it lacked opportunity to respond to the arbitrator’s comments  
and questions and the record did not support counsel’s characterization of the arbitrator’s  
behavior as improper or prejudicial. (Arbitrator Questioning, supra, at p. 14).  
142. It is my view that this is exactly what occurred in the present case. The Arbitrator  
vigorously questioned many of the witnesses, both for the Applicants and the Respondent.  
However, on every occasion the Arbitrator always ensured that counsel had the ability to  
ask any questions that arose from his own line of questions.  
143. The Applicants allege that the Arbitrator engaged in extended cross-examination of  
counsel for the Applicants during opening statements. While the Arbitrator did ask  
“perhaps more questions than” he had for the Respondent’s counsel, he had received a  
substantial amount of material “beyond the typical judge” so in his view he was “in a  
26  
position to ask more questions”. Further, the Arbitrator noted that he didn’t ask questions  
necessarily with a view to having counsel answer the questions immediately, but he  
wanted to inform counsel “what the issues were that were of interest to the decision-  
maker because” that would allow counsel to be better equipped to deal with the issues  
throughout the course of the hearing.  
144. The Arbitrator advised counsel that the questions posed by him were to assist  
counsel to understand what the Arbitrator though some of the “hot-button issues are” that  
would need to be addressed before the Arbitration was done.  
145. The Arbitrator “summarized” the Respondent’s position and specifically noted that  
he was “not adopting it”. The Arbitrator advised on the very first day of the hearing that  
he wanted Applicants’ counsel to “be aware of what resonates and what doesn’t resonate”  
and noted that “these may be things that will help you in exploring on cross-examination”  
to “understand the issue”.  
146. The Arbitrator specifically noted that the Applicants have “a little bit of a credibility  
deficit taking one position before and a different position after. Whether you can  
overcome it, I am waiting…I will wait until I hear all the evidence, but it’s a difficulty,  
and I mean, it’s nothing you couldn’t anticipate. That’s half of (the Respondent’s) brief is  
talking about that. So…”  
147. After allowing the Applicants’ counsel to either answer or consider for another day  
his comments, the Arbitrator noted “you may as well know what the issues are so you can  
have a fair opportunity to address them over the course of the next 14 days”.  
148. I do not view the Arbitrator’s questioning and interventions as engaging in conduct  
that gives rise to a reasonable apprehension of bias. Quite contrary, I find that the  
Arbitrator was providing an opportunity for the Applicants to answer the case brought  
against them by the Respondent. In other words, the Arbitrator was succinctly stating the  
issues between the parties and allowing the Applicants the opportunity to provide a full  
answer and defence.  
149. The Applicants allege throughout their material that the Arbitrator made multiple  
27  
representations that he had “pre-judged” liability in the Arbitration against the Applicants  
and was advocating positions adverse to the Applicants’ position.  
150. My review of the transcripts does not support this theory. I am of the view that in  
context the Arbitrator was drilling down on the issues that he considered relevant to the  
determination of the matter. At no time does the Arbitrator indicate that he accepts the  
Respondent’s position – however, he did seek to clarify the situation and asks difficult  
questions in accordance with his truth-seeking function.  
151. Further, each time the Arbitrator asked questions of any witness, he ended with the  
statement “Any questions arising out of my questions?” and in all cases permitted counsel  
to re-examine the witness, without fail.  
152. The Applicants allege that the Arbitrator was disproportionately heavy handed in his  
interference and questioning of the Applicants’ witnesses. As noted by the Respondent,  
the Arbitrator also intervened during the cross-examination of the Respondent’s  
witnesses. Particularly, during the cross-examination of the Respondent’s engineer and  
senior project manager, Mr. Vernaza, where the Arbitrator intervened and controlled the  
questioning to obtain a clear answer to the information sought by the Applicants. At one  
point, the Arbitrator stated, “I am sorry for the interruption, Mr. Hammel. Please go  
ahead.” Mr. Hammel responded, “No, you are doing a better job than I am sir”.  
153. Similarly, the Arbitrator intervened in questioning the Respondent’s project  
manager Mr. Verta. The interjections were targeted to obtain specific information and/or  
clarification from the witness with the obvious aim to find the truth.  
154. While I understand that the above examples may lead credence to the Applicants’  
position that the Arbitrator unduly interfered in the process, it is my view that the  
interventions in context, do not support any finding of bias or a reasonable apprehension  
of bias. Instead, the above examples evidence the Arbitrator’s continuous efforts to  
maintain balance and fairness in the process.  
155. Further evidence of the Arbitrator’s continuous efforts to maintain balance and  
fairness in the Arbitration hearing is found in the words of the Arbitrator himself as  
28  
follows:  
(i) after questioning of Mr. Vernaza, the Arbitrator notes that he has the Applicants’  
point, “but I want to make sure the witness has a fair opportunity to respond”;  
(ii) after questioning any witness in the proceeding, the Arbitrator addressed counsel  
and asked, “Anything arising out of that?” and allowed counsel the opportunity to  
ask any desired follow up questions;  
(iii) upon hearing that the counter-claim was settled, the Arbitrator noted “So, all I will  
be dealing with is determining whether and to what extent Morrison Hershfield has  
established its claim without any concern about a set-off or a counterclaim?”  
(iv) many of the interventions were to clarify a fact or an issue, for example, during the  
Applicants’ cross-examination of Mr. Verta (Respondent’s witness), the Arbitrator  
said, “I don’t want to interrupt Mr. Hammel. I may have some further questions at  
the end, but we…I wanted to clarify …”.  
(v) similarly, when the Arbitrator asked a question of Mr. Young (Respondent’s  
witness) concerning a specific issue he questioned the information relied upon and  
asked, “But where does it say that? This has been bothering me for a week and a  
half”;  
(vi) during the cross-examination of Mr. Fellman (Applicants’ witness) the Arbitrator  
stated, “I don’t want you to feel I am picking on you, but I have got a job to do, and  
I have an inconsistency between you putting forward claims in good faith to the  
owner that you believe to be true and are honest, and then at the same time settling  
those claims, paying MH nothing, and then coming here and say “we don’t believe  
in these claims, these are nonsense, these are exaggerated, I don’t trust them”. This  
has been my problem from the very outset, and I am giving you an opportunity to  
explain how this works, from your perspective. Mr. Fellman provided a full answer  
to the question and stated “I think my points made across. You know, I live in the  
same point of conflict that…, you were stating was the whole time…I have a duty  
and an obligation to support my subcontractor…I have to pass it through; and at the  
29  
same time I have stuff in writing to MH saying, “I don’t believe in it”, the case is  
weak, you know, it’s a weak case. You know the owner has the right, but I am on a  
time limit, and I have to pass it forward, and that doesn’t mean it’s approved.” After  
a further exchange with the Arbitrator, the witness, Mr. Fellman, was able to fully  
explain his position to provide a full answer and defence to the Respondent’s claims  
and the queries raised by the Arbitrator; and  
(vii) following the privilege document ruling, the Arbitrator stated, “I have always felt  
that arbitration has three principal obligations. The first one might be, most people  
would say, to make the right decision at the end. Of course, it’s never right in the  
eyes of one side or the other, but that’s our first obligation. We have a second  
obligation to run a fair process. No one would argue with that. And our third  
obligation is to protect the process against collateral challenge after the fact…If I  
have to err, I am going to err on the side of protecting the process”.  
156. The Applicants argue that discussion concerning the privilege document ruling in  
fact evidenced a pre-judging of the issues. In particular, the Applicants point to a  
statement made by the Arbitrator to the Respondent’s counsel that they rely upon as  
indicating pre-judgment as follows: “So, ultimately, I have to decide at the end of the day  
whether your client gets $1 or 30 million or something in between; is that fair? To which  
Respondent’s counsel answered “Yes”.  
157. The Applicants argue that the above statement evidences the Arbitrator pre-  
determined liability and has determined that the Respondents are entitled to payment with  
only the quantum in dispute. I do not accept this argument.  
158. The statement by the Arbitrator must be taken in context and after a fulsome review  
of the record. The statement was made once, during argument, and does not accurately  
reflect the Arbitrator’s oft stated mandate that he needs to determine whether the  
Respondent is entitled to any compensation. A more accurate representation of the  
Arbitrator’s understanding is found on December 4, 2020, during the re-examination of  
Applicants’ witness, Mr. Fellman, when the Arbitrator stated, “Mr. Fellman, I don’t know  
that you do or don’t have to pay anything. I guess that’s what I have got to decide.”  
30  
159. The record is replete with many examples of exchanges between the Arbitrator,  
witnesses and counsel that provide a balanced view and context to the Arbitrator’s  
interventions.  
160. The question as to the appropriateness of questioning, including quantity and  
quality, that may be engaged in by an Arbitrator formed part of the survey referenced  
above completed by Glaholt and Rotterdam (Arbitrator Questioning, supra).  
161. The authors further found that the “questioning of witnesses by a tribunal with  
acknowledged substantive expertise, even if pursued extensively and vigorously, does not  
appear to violate the principles of equal treatment and fairness” as long as the questions  
are reasonably based on the facts, are aimed at uncovering or clarifying the witnesses’  
evidence and are not intended to intimidate or harass the witness. In these circumstances,  
the authors conclude that even aggressive questioning will not give rise to an  
apprehension of bias. (Arbitrator Questioning, supra, at p. 14).  
162. In MDG Computers Canada Inc. v. MDG Kingston Inc., 2013 ONSC 5435, Justice  
C. Brown, summarized the law on arbitrator’s bias as follows: “The test for determining  
whether a reasonable apprehension of bias exists in an arbitrator is whether an informed  
person, viewing the matter realistically and practically, and having thought the matter  
through, would conclude that the arbitrator is seized with an attitude or predilection for  
bias, whereby the arbitrator must be taken to have prejudged the matter”.  
163. Apprehension of bias must be based on substantial grounds. The courts will not  
entertain “mere suspicion” or entertain the subjective views of the parties in making such  
determination. Simcoe Condominium Corp. No. 78 v. Simcoe Condominium Corp. Nos.  
50, 52, 53, 56, 59, 63 & 64, 2006 CarswellOnt 909 (Ont. S.C.J.).  
164. Despite the Applicants’ concerns of impartiality and bias, I am of the view that the  
Arbitrator maintained his independence and impartiality and provided each witness with  
an opportunity to fully explain their position, including any reason for having adopted a  
contrary position prior to the commencement of the arbitration hearing.  
165. Having reviewed and considered the interactions between the Arbitrator and counsel  
31  
and the witnesses at trial, I am struck by the Arbitrator’s preparedness for each witness  
and each day of hearing. The Arbitrator’s questions and comments evidence that he is a  
truly a subject matter expert who seeks to find the truth. In his pursuit of the truth, the  
Arbitrator asked many questions of many witnesses but in my view did not become an  
advocate for either party. Instead, he positioned himself between the parties and poked  
and prodded each witness to ensure that both parties had a fulsome hearing, were granted  
an opportunity to explain their evidence, and had provided the Arbitrator with all  
information within their knowledge relevant to the proceeding.  
166. The Arbitrator was completely engaged in the arbitration process. He appeared to  
have worked tirelessly to read the evidence in advance, to understand the issues, to  
investigate any inconsistencies, to question any items or evidence that appeared to be  
incongruent with the entirety of the process that he was reviewing.  
167. Contrary to the Applicants’ claims – I did not find bias or a reasonable apprehension  
of bias, instead, I found a deeply invested, engaged Arbitrator that worked tirelessly for the  
parties in furtherance of his mandate, which was to determine the truth of the issues before  
him.  
V. CONCLUSION  
168. I conclude with a quote by the authors of the survey Arbitrator Questioning: Sphinx  
or Skeptic, supra, at p. 18, which I believe aptly summarizes the situation before the  
court:  
An arbitrator chosen for subject matter expertise is better in the role of skeptic than  
Sphinx, providing that active skepticism does not become active advocacy. As to the  
“right or duty” issue, we can do no better than to quote Primo Levi: more dangerous  
are common men, the functionaries, ready to believe and act without asking  
questions.  
169. In the present case, the Arbitrator was engaged, focused, prepared, and diligent. He  
was actively involved in the arbitration hearing and sought information and evidence in  
his truth-seeking capacity. His subject matter expertise allowed him to concentrate on  
32  
issues that concerned him, and he readily and fully advised all parties of the “hot button”  
issues that required to be answered.  
170. Further, although the Arbitrator was entirely engaged in the process, he was not  
engaged as an advocate for either party. Instead, I find that he was advocating for the  
truth, wherever that lead.  
171. For the foregoing reasons, the application to remove the Arbitrator on the basis that  
the Arbitrator’s conduct gave rise to a reasonable apprehension of bias, is dismissed.  
172. In the event the parties are not able to agree upon the costs of the application, the  
Respondent shall serve and file their costs submissions restricted to five pages, with a  
Costs Outline, Bill of Costs, and any relevant Offers to Settle attached thereto, within 60  
days of the date herein.  
173. The Applicants shall serve and file their responding costs submissions restricted to  
five pages, with a Costs Outline, Bill of Costs, and any relevant Offers to Settle attached  
thereto, within 80 days of the date herein.  
174. Any reply by the Respondent shall be restricted to two pages to be served and filed  
within 90 days of the date herein.  
_________________________________________  
Justice S. J. Woodley  
Released: June 10, 2022  
33  
CITATION: Dufferin v. Morrison Hershfield, 2022 ONSC 3485  
NEWMARKET COURT FILE NO.: CV-21-00000012  
DATE: 20220610  
ONTARIO  
SUPERIOR COURT OF JUSTICE  
ONTARIO SUPERIOR COURT OF  
JUSTICE  
BETWEEN:  
Dufferin Construction, A Division of CRH Group Inc.  
and Aecon Construction and Materials  
Limited  
Applicants  
AND:  
Morrison Hershfield Ltd.  
Respondent  
BEFORE:  
Justice Susan J. Woodley  
COUNSEL:  
Scott J. Hammel, Q.C., F. Schappert,  
H. Edmonds, and M. Puszczak, For the Applicants  
Brendan D. Bowles, Michael Valo, Charles Powell, For  
the Respondent  
REASONS FOR DECISION  
The Honourable S.J. Woodley  
DATE RELEASED: June 10, 2022  


© 2022 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission