Ontario court removes arbitrator for reasonable apprehension of bias: Limits on active questioning

In Atkinsréalis Construction (Pacific) Inc. v. GIP Construction Ontario East Ltd., 2026 ONSC 5666, the Ontario Superior Court of Justice removed an arbitrator after finding that his questioning of witnesses crossed the line from active adjudication into advocacy and gave rise to a reasonable apprehension of bias.

At the core of the decision is a balancing of the minimum requirements of procedural fairness, party autonomy in customizing arbitration agreements, and an arbitrator’s ability to take an active role in questioning witnesses. While parties have considerable flexibility in designing an arbitration process, they cannot contract out of the minimum requirements of fairness and adjudicative neutrality under Ontario’s Arbitration Act.

Background: The parties agreed to an active arbitrator

The dispute centred around the construction of a transit extension project in Ottawa. Atkinsréalis Construction (Pacific) Inc. (“ATRL”) was the prime contractor. GIP Construction Ontario East Ltd. (“GIP”) was a subcontractor for the project. Each party had claims against the other arising from project delays. They agreed to appoint an arbitrator with significant experience in the construction industry.

The arbitrator informed the parties that he takes an active and more inquisitorial approach to arbitration, at times directly asking witnesses questions. Both parties agreed that this style would be appropriate. The arbitration proceeded on that basis.

Eight days into the arbitration, ATRL asked that the arbitrator remove himself as arbitrator on the basis of there being a reasonable apprehension of bias arising from the style of questioning of one of ATRL’s witnesses. The arbitrator denied the request. ATRL then brought an application to the Court for an order removing the arbitrator.

When does an arbitrator’s questioning create a reasonable apprehension of bias?

The Court identified, as a starting point, that there was not an issue with an arbitrator asking witnesses questions per se. An active approach to questioning witnesses can be completely fair. However, ATRL argued, and the Court agreed, that the arbitrator’s questioning veered into cross-examination. He asked leading questions and prodded witnesses to go along with his interpretation of their testimony. In the Court’s view, this crossed the line between active adjudication and advocacy.

The arbitrator denied the motion to remove himself as arbitrator in part because the parties had agreed to the method and style of adjudication, and because the parties had the ability to object to the approach during the course of the hearing. The arbitrator had informed the parties at the start of the arbitration that he would cease any line of questioning that the parties objected to as being too active. Indeed, this occurred on one occasion.

The Court accepted that an active approach itself did not undermine the fairness of the arbitration. The issue that ultimately gave rise to the finding of a reasonable apprehension of bias was that cross-examining the witnesses moved the arbitrator into the role of an advocate for one side of the dispute. It is noteworthy that the arbitrator’s good faith was not called into question. The Court accepted that the arbitrator believed his active approach was part of a search for the truth. That said, actual bias is not the test. The appearance of impartiality is itself an essential part of procedural fairness, and the question was whether, viewed cumulatively, the circumstances would lead a reasonably informed observer to have a reasonable apprehension of bias.

Party autonomy has limits

While parties are free to customize many aspects of an arbitration, the fairness of the process is not something that can be contracted out of. The Arbitration Act makes this clear. Under s. 3, parties generally have the freedom to vary or exclude provisions of the statutory arbitration regime, subject to specified exceptions. One of those exceptions is s. 19, which requires the parties to be treated equally and fairly.

The Court did not rule out an inquisitorial arbitration process. Parties can devise such a process, but it would still have to protect the arbitrator’s neutrality and comply with the mandatory requirements of the Act. The Court cautioned that agreeing to such a process would likely require very express wording that respects the mandatory language of the statute and avoids creating circumstances that may give rise to a reasonable apprehension of bias.

In other words, there is significant leeway for parties to decide what their arbitration will look like, but that flexibility has a limit: the arbitrator must remain a neutral decision-maker.

What the decision means for parties and arbitrators

The decision provides helpful guidance for both parties and arbitrators.

For parties

When deciding on an arbitration procedure, deviations from a conventional adjudicative process are acceptable, but the minimum backstop of fairness cannot be contracted out of. The farther the process gets from having the arbitrator act as a neutral decision-maker, the more important it is to be clear about the scope of what the arbitrator is empowered to do.

For arbitrators

An active, even inquisitorial, approach may be appropriate. But there is a line between asking questions to understand or clarify the evidence and effectively assuming the role of an advocate for one side. An arbitrator can cross that line without intending to favour either party and without being found to be actually biased. But crossing that line may be enough to warrant a finding that a reasonable apprehension of bias exists.