In Atkinsréalis Construction (Pacific) Inc. v. GIP Construction Ontario East Ltd., 2026 ONSC 5666, the Ontario Superior Court of Justice removed an arbitrator under s. 13 of the Arbitration Act, 1991 because his questioning of the applicant’s witnesses gave rise to a reasonable apprehension of bias. The arbitrator, a construction specialist chosen for his expertise and known for an “inquisitorial” style, prepared questions in advance and, after counsel finished, questioned witnesses “like a second counsel.” Justice Myers found that he conducted “skillful cross-examinations, using leading questions, controlling the witnesses,” aimed at undermining the applicant’s case and the credibility of its witnesses.
Arbitrators, like judges, are bound by the duty of neutrality; parties cannot contract out of the statutory duty to treat them equally and fairly; and the arbitrator’s good intentions are irrelevant. Party consent to an active style, the arbitrator’s expertise and the absence of question-by-question objections did not change the result. The decision follows the court’s earlier interim stay in 2026 ONSC 4785 and confirms that cross-examination by an arbitrator is “presumptively on the wrong side of the line.”
Facts
The Applicant, Atkinsréalis (ATRL), was prime contractor on the Trillium Line Extension Stage 2 Project in Ottawa, and the Respondent, Green Infrastructure Partners (GIP), was its roadworks subcontractor. Each side claimed against the other for delays and changes in scope. The parties jointly appointed an experienced arbitrator with specialized construction knowledge. At a pre-hearing conference, he explained his “preference for a somewhat more inquisitorial approach,” and both counsel agreed. His terms of appointment, “[r]ecognizing that the Arbitrator is a neutral adjudicator,” entitled him “to question any witness,” subject to the parties’ right to follow up.
The same arbitrator’s style had been challenged before. In Dufferin v. Morrison Hershfield, 2022 ONSC 3485, Woodley J. dismissed an application to remove that arbitrator in a different arbitration, describing an arbitrator who “purposefully and intentionally prepared questions for every witness” were intended to ensure “a fair and independent process”.
Procedure
By way of background:
- Recusal motion before the arbitrator: The hearing began on December 8, 2025. On the eighth day, after all fact witnesses had testified, ATRL asked the arbitrator to remove himself. Under s. 13(5), he “shall decide the issue”; he adjourned the arbitration and dismissed the challenge in reasons dated April 18, 2026.
- Continuation ruling: On May 15, 2026, the arbitrator ruled that the arbitration should be completed by the end of June 2026, because the parties had bargained for an expeditious proceeding.
- Interim stay: In 2026 ONSC 4785 on August 19, 2026, Myers J. stayed the arbitration pending the application, holding that a stay under s. 13(7) requires a “strong prima facie case” and that ATRL had met that threshold.
- Application before Myers J: ATRL applied under s. 13(6) for the court to “decide the issue” and remove the arbitrator. The application was heard on July 15 and September 22, 2026, argued de novo with no standard of review, and decided on October 7, 2026.
Issues
The issue was whether, under s. 13(1) of the Arbitration Act, 1991, SO 1991, c 17, “[c]ircumstances exist that may give rise to a reasonable apprehension of bias” justifying the arbitrator’s removal. As the Court framed it:
“[W]hat remains for review is whether, on the facts of this case, measured in the overall context of this particular arbitration and this particular arbitrator, the concern that the Arbitrator may appear to lack neutrality is made out sufficiently to justify removing him.” (para. 56)
This raised three connected questions:
- Are arbitrators bound by the same duty of neutrality as judges, and can parties agree to dilute it?
- Did the arbitrator’s questioning amount to cross-examination giving rise to a reasonable apprehension of bias, in context?
- Did ATRL’s failure to object question by question defeat its challenge?
Analysis
Neutrality is mandatory: Section 19 requires that “the parties shall be treated equally and fairly,” and s. 3 prevents the parties from excluding that requirement. The court therefore rejected the argument that parties may agree to “any process they wish including a civil inquisitional process or even a flip of a coin” (para. 23). A purely inquisitorial process might be possible, but it “would likely require very express wording” that respects the statute’s mandatory language (para. 26). Justice Myers stressed that the Act “is the law of the land” and that the duty of neutrality applies “as a matter of law and public policy no matter what the parties may prefer” (para. 44).
Same rules as judges: Relying on Szilard v. Szasz, 1954 CanLII 4 (SCC) and Vento Motorcycles, Inc. v. Mexico, 2025 ONCA 82, the court held that “arbitrators and judges are bound by the same rules of neutrality.” It drew the limits on judicial questioning from Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, McFarlane v. Safadi, 2004 CanLII 12644 (ON CA) and, in the criminal context, R. v. M.M., 2026 ONCA 617, which holds that a trial judge “may never become the cross-examiner.” The court then explained that cross-examination “is the role of adversarial counsel and is not consistent with the required neutrality of an arbitrator or judge.” (para. 63) Cross-examination “is inherently not neutral … The examiner knows in advance what he wants the witness to say” (para. 67).
The court clarified that not “any leading question or any effort to cross-examine” is disqualifying; conduct must be measured “in its full context with due regard for the strong presumption of neutrality” and the high hurdle in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC) (para. 68).
Intent is irrelevant: In his determination of the issue of whether he should be removed, the arbitrator had relied on the Glaholt and Rotterdam article Arbitrator Questioning: Sphinx or Skeptic? and on a Black’s Law Dictionary definition to conclude that questioning by an arbitrator “is not, by definition, cross-examination.” However, the article’s own proviso requires that questioning “not give rise to the appearance of one-sidedness or unfairness” (para. 96). The court held that the arbitrator’s reliance on his “inquisitional search for the truth” to justify the cross-examination ignored the case law that “the intention of the arbitrator or judge is not relevant” (paras. 63–64).
The cross-examinations: Reviewing the transcripts, the court described the arbitrator’s approach:
“[H]e conducted skillful cross-examinations, using leading questions, controlling the witnesses, all aiming at establishing facts he put to the witnesses that he wanted the witnesses to accept, destroying evidence that he did not wish to accept, or undermining the credibility of the witnesses” (para. 60).
With one ATRL witness, the arbitrator first used “seemingly innocuous” questions to pin him to a list of options for handling changes that excluded termination, a key issue in the case, and later confronted him with that list. The court called this “classic cross-examination technique.” When the witness raised ATRL’s concerns, the arbitrator dismissed them (“You can argue about that”; “That might be a later fight”) until he secured the admission, “Do you agree that didn’t happen?” Later, after offering the witness an open-ended chance to explain, “he sought to undermine the witness’s explanation – interrupting to raise inconsistencies” (para. 82).
With another, the arbitrator elicited that counsel drafted his witness statement and then dismissed his evidence as “spin.” The Court accepted that an affidavit drafted by counsel may lack weight, but found the goal was “to denounce the witness’s evidence as spin so as to undermine the witness’s credibility” (para. 88). GIP’s witness’s affidavit raised the same concern but he was not cross-examined in the same way.
Context did not save the questioning: The Court accepted that expertise and advance written evidence let an arbitrator come in “hot,” but found that the parties’ agreement to “a somewhat more inquisitorial approach” was “a far cry from a decisionmaker freed from the duty of neutrality,” and that nothing in the terms of appointment authorized him “to cross-examine or to shed his cloak of neutrality” (paras. 93–94). It found that “cross-examination is presumptively on the wrong side of the line,” and concluded: “None of the contextual facts that the Arbitrator is experienced, knowledgeable, was provided with evidence in advance, that he allowed counsel to re-examine, or that the parties knew he would have a somewhat more inquisitional approach, altered the fundamental requirement that the Arbitrator be neutral” (para. 105).
Failure to object: Because parties cannot consent to unfair proceedings, a failure to object is not consent; it is relevant only to whether the later challenge is tactical. The arbitrator had found no evidence of tactics, yet called the lack of objections “fatal” but also later “not fatal.” The court could not “ascribe much sense to these directly inconsistent holdings,” and found that ATRL’s counsel “did object in a measured and respectful way” (para. 114).
Conclusion
The court held that “a reasonable person reading the cross-examinations by the Arbitrator, knowing all the context of all relevant factors, may reasonably conclude that the Arbitrator may have predetermined the outcome and, as such, may not decide the arbitration fairly” (para. 115). Under ss. 13(1) and 15(1) of the Act, it ordered that the arbitrator be removed.
Key notes
This decision matters for three reasons.
First, it settles the point left open at the stay stage. On neutrality, arbitrators are held to the same rules as judges, and the parties cannot contract out of it. Agreeing to an “inquisitorial” arbitrator, or to terms allowing him “to question any witness,” does not authorize cross-examination by the arbitrator. Parties who truly want an inquisitorial process will need very express wording, and even then must respect ss. 3 and 19 of the Act.
Second, it draws a practical line for arbitrators. Active questioning to clarify evidence is acceptable, and the Court found no fault with an expert arbitrator choosing to be an active participant. What crossed the line was pre-prepared, leading questioning that pinned witnesses, dismissed their answers and was directed only at one side. Arbitrators should prepare to try to understand the evidence, not to test one party’s theory of the case, and should treat both sides’ witnesses the same.
Third, it shows Ontario courts acting as guardians of the integrity of the process while respecting its autonomy. The court applied Vento, which held that bias “cannot be balanced away,” yet stressed the strong presumption of neutrality and the high hurdle for removal. For counsel, the decision confirms that measured objections are enough and that a failure to object goes only to whether a challenge is tactical.
For more information on this topic, please reach out to the authors, Chloe Snider and Ekin Cinar.
