In Dhaliwal v. Richter International Ltd., 2025 ONCA 522 (CanLII) Justices Wilson, Rhaman and Copeland dealt with the issue of arbitrator bias.
The parties chose the arbitrator together. Then one party found out that the opposing lawyer was also using the same arbitrator on another file. That party brought a motion before the arbitrator requesting that the arbitrator recuse. The arbitrator refused and ordered costs against the party who brought the motion.
The losing party brought an application in ONSC to overturn the arbitration award. They lost. They appealed. They lost again. They sought leave to the SCC. This was dismissed .
This is what the ONCA said:
[8] We reject the appellants’ contention that the terms of the arbitration required the arbitrator to disclose that he and the respondents’ counsel were involved in another arbitration. The arbitrator was required to disclose circumstances that could give rise to a reasonable apprehension of bias. Simply being involved in a separate arbitration with one party’s lawyer is not, on its own, such a circumstance. The parties had no agreement that they could only select an arbitrator that neither had worked with before. Nor did the terms of the arbitration agreement require the arbitrator to disclose any previous involvement with the parties’ lawyers. We observe that it is not uncommon for lawyers to select arbitrators for the very reason that they have worked with those arbitrators before. There is no merit to the appellants’ submission that any non-disclosure created a reasonable apprehension of bias.
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