May 30, 2022
An arbitrator’s award must include reasons which explain clearly how the decision was made.
This principle was reviewed and reinforced in the Ontario Superior Court decision of Alberta Cricket Association v. Alberta Cricket Council. The case involved a dispute between two groups competing to be designated as the Provincial Sports Organization for Alberta with membership in Cricket Canada. This has significant impact upon the availability of sports funding and presumably eligibility for competitions. There is one provincial member for each province – the organization which has “effective control of competitive cricket within the province”.
The plaintiff Association had been the Alberta member in Cricket Canada as long as Cricket Canada existed because the Association had been in existence for over 100 years. The Council was recently formed by a group of dissidents who disagreed with the way that the Association was run. The Council had applied to Cricket Canada to be recognized as the provincial member for Alberta. When that application stalled, the Council requested arbitration. The terms of Cricket Canada’s finding from the federal government required that “sports related disputes” be submitted to arbitration through the Sport Dispute Resolution Centre.
This led to a series of five formal interim and final decisions. The final award by the arbitrator reviewed the applicable legislation and bylaws of Cricket Canada and decided that the Council should be the provincial member. The arbitrator stated that the council had demonstrated effective control of organized competitive cricket within the province of Alberta.
The reasons did not explain why the arbitrator reached that result. Instead of considering facts related to the actual control of the sport, the arbitrator’s decision focused on the fact that control of cricket in Alberta was polarized and dysfunctional and this problem had arisen while the Association had control. On that basis the arbitrator felt that fresh leadership was required. This reasoning, if examined carefully, has nothing to do with who actually has control.
The Association applied to the Ontario Superior Court to set aside the award on the basis that the arbitrator failed to consider proper matters and made improper decisions.
Justice Perell, a senior and well-respected judge, clarified that the task of the arbitrator was to answer the question as to which organization had “effective control of organized competitive cricket” within Alberta. Though the arbitrator appeared to answer this question, in the end, the judge found the arbitrator did NOT really answer it, instead making a political decision as to how the arbitrator felt the dysfunction could best be resolved.
Section 38 of the Arbitrations Act requires that an arbitrator state the reasons on which the decision is based.
The award set out a list of criteria to assess “effective control” including membership numbers, governance practice and policies, and development programs. Both parties had filed material to address those criteria. Nothing in the award analyzed those facts or the evidence, much of which was conflicting. Part of the job of any adjudicator, whether a judge or arbitrator, is to resolve conflicting evidence and explain how they reached that resolution.
Because of the importance of reasons, Justice Perell ruled that the arbitrator’s failure to give proper reasons was more than “mere technical noncompliance”. This failure strikes at the part of the fairness of the arbitration and was a fatal procedural breach.
As Justice Perell explains, reasons show the parties that the arbitrator or adjudicator paid attention to their arguments and treated them fairly and with due process. This requires a logical connection between the evidence and the law on the one hand and the decision on the other. Reasons for a decision remove the appearance of arbitrariness, make the process transparent, and holds the decision maker accountable.
The arbitrator in this case failed to meet that standard. The arbitrator never explained why the Association lost. When the arbitrator simply stated that it was time for a change, she answered a very different question than which organization had effective control of the sport.
On that basis, after all of the time, expense, and effort involved in the series of five arbitration decisions, the award was set aside and the dispute had to return for a further arbitration by a different arbitrator. In other words, the parties started all over again.
In some situations, parties do not have control over the selection of their arbitrator. If you find yourself in a situation where you do have control over the selection, you ought to make sure that you select an arbitrator who understands the rules of procedural fairness and has a solid track record as to providing adequate reasons.
In situations where the arbitrator is selected by someone else, in your submissions to the arbitrator, it is important to remind them of the issues and, as gently as possible, remind them about their obligation to provide reasons. You must be gentle about this, because arbitrators, like any adjudicator or judge, might be insulted by a suggestion that they don’t know how to do their job. However, this case illustrates the fact that there are adjudicators out there who sometimes do not do the job properly.
This case also demonstrates why, as soon as you know you have a dispute, it is important to retain a lawyer experienced in arbitrations and alternative dispute resolution, and who understands the procedural fairness requirements associated with alternative dispute resolution. Addressing issues of selection of arbitrators, stating the proper question, and ensuring that the process is fair from the beginning require having appropriate legal advice at the start of the process.
Weilers LLP has a track record in administrative law and alternative dispute resolution going back throughout our 75-year history. Even before the firm existed, one of our founders, W.J. Weiler, was an official of the Price Control Board during World War Two, which gave him experience in administrative powers that he brought into the firm and passed on. The team of lawyers currently at Weilers LLP are the heirs continuing this proud tradition. If you have an administrative law issue or are headed for any form of alternative dispute resolution, we may be the right lawyers for you.
In addition, several of the lawyers at Weilers LLP are experienced neutral adjudicators and are willing to serve as an arbitrator in disputes. Their awareness of the requirements of procedural fairness would assure you of a fair and well-reasoned decision.