September 9, 2025

By Brian Babcock

When a commercial dispute arises in Ontario, arbitration can offer a faster, more confidential, and more flexible alternative to litigation. However, the success of arbitration often hinges on one critical decision: selecting the right arbitrator.

Selecting an arbitrator is more than a box to check—it’s a strategic decision that can shape the outcome of a commercial dispute. Ontario businesses and their counsel should approach this step thoughtfully, balancing subject-matter expertise, procedural style, and practical considerations.

By taking the time to choose the right arbitrator, parties can ensure a more efficient, credible, and enforceable resolution to their commercial disputes.

1. Understand the Arbitration Framework

In Ontario, most commercial arbitrations are governed by the Arbitration Act, 1991, unless the parties have agreed to international arbitration, in which case the International Commercial Arbitration Act, 2017 may apply. These statutes give parties broad autonomy to choose their arbitrator(s), subject to some procedural safeguards. If the parties cannot agree on an arbitrator, the court may intervene and appoint one.

2. Define What the Arbitrator Needs to Know

The ideal arbitrator will have a firm grasp of:

• • • The substantive legal issues (e.g., commercial leasing, construction law, intellectual property)
    • The business context (e.g., tech startups vs. traditional manufacturing)
    • The applicable legal framework, including Ontario and Canadian commercial law

Matching the arbitrator’s expertise with the dispute’s subject matter can streamline the process and enhance the quality of the decision-making.

3. Consider Experience and Reputation

Look for arbitrators with a proven track record in managing and resolving commercial disputes. Consider:

• • • Whether they are members of recognized panels (e.g., ADR Chambers, Arbitration Place)
    • Their prior appointments as sole arbitrators or panel members
    • Their writing and speaking engagements in the field

Reputation for fairness, diligence, and clarity in decision-making also matters—particularly if the arbitration is high-stakes.

4. Assess Procedural Style and Flexibility

Arbitrators vary in how they manage proceedings. Some take a more hands-on, proactive approach, while others are more facilitative. Ask:

• • • Are they open to streamlining evidence or procedural steps?
    • How do they handle pre-hearing motions?
    • Do they favour document-only arbitration or insist on oral hearings?

Procedural alignment can reduce surprises and help parties feel heard.

5. Check for Conflicts and Impartiality

An arbitrator must be—and be seen to be—independent and impartial. Under Ontario law, arbitrators are required to disclose any potential conflicts of interest. Conduct your own due diligence:

• • • Review the arbitrator’s affiliations and prior engagements
    • Ask for a declaration of independence
    • Ensure no prior relationships exist with either party or their counsel

Transparency on this front builds confidence in the process.

6. Think About Availability and Cost

Highly sought-after arbitrators may have significant delays in scheduling or may charge premium rates. Ask:

• • • What is the expected timeline for the arbitration?
    • What are the arbitrator’s hourly or flat fees?
    • Are they willing to cap or structure fees for predictability?

Avoid surprises by discussing these logistical details early on.

In Thunder Bay or Northwestern Ontario, is local experience and knowledge an advantage?

7. Use the Right Appointment Mechanism

Your arbitration agreement may already specify how the arbitrator is to be chosen. If not:

• • • Parties can agree jointly
    • Use an appointing authority (like ADR Chambers or ICDR Canada)
    • Seek court assistance under the Arbitration Act, 1991 if agreement cannot be reached

Having a clear and fair appointment process in place prevents unnecessary procedural disputes.

HOW WEILERS LLP CAN HELP YOU

Need help with a commercial arbitration in Ontario? Contact Weilers LLP to learn how we can help protect your business interests through smart, strategic dispute resolution. We might be the right lawyers for you.