Anyone who wants to better understand how decisions are made—and why fairness truly matters—will find this article worth reading.

The Role of Adjudicators: Fairness, Equity and the Courage to Decide

Adjudication is one of the quiet pillars of justice. In an era marked by heightened scrutiny, growing complexity and rising public expectation, the role of the adjudicator has never been more essential. Behind every ruling, order and written or oral reason lies immense weight and an act of profound public trust.

As an adjudicator myself, I know the responsibility we carry is both technical and deeply human. We listen, we weigh, we assess, we deliberate and we ultimately decide, always with fairness and integrity. Our work does not seek headlines, nor should it. Instead, it forms the foundation upon which confidence in our justice and regulatory systems depends.

Fairness, equity and courage are not abstract ideals in the work we do as adjudicators; they are its daily practice. Our decisions shape lives, uphold public confidence and safeguard the integrity of the system itself.

The Calling of an Adjudicator 

To understand the role of an adjudicator is to understand three essential qualities: fairness, humility and courage. Fairness, because the rule of law cannot survive without it. Humility, because no decision-maker holds a monopoly on truth. And courage, because doing what is right is often far more difficult than doing what is convenient and easy.

Adjudicators sit at the intersection of law, humanity and judgment. They interpret evidence, apply standards and navigate the complexities of human behaviour, often in emotionally charged or ethically challenging circumstances. Their decisions can alter careers, reputations, and lives. Yet adjudicators continue to show up with quiet resolve, deliberating carefully and carrying out their duties with discipline and integrity.

That takes courage, not the loud, heroic kind, but the steady kind that withstands pressure, uncertainty and scrutiny.

The Complexity of the Work 

Administrative and professional discipline hearings are often structured, formal and, at times tense. They require adherence to rules of evidence, procedural fairness and deliberative independence. It’s demanding work that requires us to balance efficiency with empathy, procedural rigour with principle.

But within that structure lies a deeper responsibility: to remember the people behind the process. The physician facing allegations. The lawyer defending their reputation. The refugee claimant seeking protection. The self- represented litigant trying simply to be heard.

Each deserves not only a decision, but a fair one, delivered through a process that is transparent, comprehensible and humane.

That is why adjudicators train continuously, refine their writing and examine their own assumptions and biases. Fairness is not merely about applying the law correctly; it is about ensuring that those who appear before a tribunal can see themselves in the process and understand how and why a conclusion was reached.

The Principles of Procedural Fairness 

The Canadian administrative law tradition is anchored in the principles of procedural fairness: the right to be heard, the right to an impartial decision-maker and the right to reasons that make sense. At the heart of adjudication lies these enduring principles. These are not abstract requirements; they are the essence of legitimacy. Without them, even a technically correct decision can feel unjust.

Fairness, however, is not static. It evolves with our understanding of the people and communities we serve. That is why equity, inclusion and accessibility are not optional add-ons to the adjudicative process; they are central to it. Administrative law increasingly demands that adjudicators incorporate these principles into their understanding of fairness.

A conception of fairness that ignores systemic barriers is not fairness at all.

Equity and Representation 

The pursuit of equity demands honesty. A growing body of research and experience reveals that racialized professionals and marginalized individuals often appear before regulatory bodies and tribunals at disproportionate rates. Structural inequities in access to mentorship, professional opportunity and representation contribute to these disparities.

These are uncomfortable truths, but essential ones.

Acknowledging systemic inequity does not compromise impartiality; it reinforces it. To uphold fairness, adjudicators must be willing to confront inequity directly and ask critical questions:

• Who is being heard?
• Who is being believed?
• Who has access to justice and who does not?
• Who sits in judgment?
• Whose perspectives are missing from the table?

Equitable adjudication requires more than procedural rigour. It requires empathy, awareness and the humility to recognize that bias is not always overt; sometimes it is subtle, systemic or unconscious and can shape outcomes. Recognizing this reality is not weakness; it is an act of integrity. When adjudicators commit to learning, listening and improving, they strengthen the public trust and reinforce the legitimacy of our institutions.

The Discipline of Decision-Making 

Decision-making is often solitary work. Adjudicators reflect, deliberate, write and, at times, wrestle with uncertainty. Yet, the measure of good adjudication is not perfection; it is the quality of the process. Transparent reasoning is the cornerstone of legitimacy. Writing decisions in plain, accessible language, and explaining how evidence led to conclusions, are the hallmarks of a fair process.

When people understand why a decision was made, even if they disagree with the outcome, they are more likely to trust the system that produced it. That trust is the lifeblood of justice. The Supreme Court of Canada’s decision in Vavilov affirms that reasoned decision-making is the essence of administrative justice. A decision that is intelligible, justified and responsive to the evidence not only meets legal standards, it reinforces public confidence.

The Human Element & The Future of Adjudication 

Behind every case file is a person, often anxious, sometimes angry, always hoping to be heard.

The best adjudicators never lose sight of that. They create space for truth to emerge, even when it is uncomfortable and difficult. They see beyond the documentary record to the human story beneath it. Empathy does not undermine impartiality; it strengthens it. It ensures that justice is not only done but experienced as fair.

As technology reshapes how we do our work and public scrutiny intensifies, the challenge for adjudicators is to keep the human element at the centre. Virtual hearings, digital evidence and evolving legal standards offer opportunities for efficiency, but efficiency must never override fairness or compassion.

Legitimacy does not come from authority alone; it comes from integrity. The future of administrative law in Canada will depend on adjudicators who lead with empathy, transparency and courage, those who ensure that modernization enhances, rather than diminishes, the human experience of justice.

A Lesson in Courage and Compassion 

Early in my legal career, I learned a lesson that has stayed with me.  As a young prosecutor in Baltimore, I prepared meticulously for my first trial in juvenile court. My arguments were sharp, my cross-examination tight. I was certain I would win.

I lost and I was devastated.

A mentor approached me after the trial and asked: “What kind of lawyer do you want to be? The kind who only cares about the win, or the kind who carries out their duties with compassion, empathy, integrity and courage?”

That question reframed my understanding of justice. I realized that compassion and integrity are not at odds with strength; they are its foundation. I carry that sentiment with me still.

Every decision an adjudicator makes is an act of public trust. Each time they listen with empathy, write with clarity and decide with fairness, they reinforce that trust. Justice endures not through grand reforms or sweeping gestures, but through the steady, consistent courage of those who believe that fairness matters, that equity matters, that integrity matters.

That is the enduring promise of adjudication and the quiet strength that sustains the rule of law in Canada.

The post The Role of Adjudicators: Fairness, Equity and the Courage to Decide appeared first on Thauli Law.

Key Findings by Hackland J.:

1. Unequal Treatment in Hearing Process:
   • The arbitrator allowed Fowlie to present live testimony and cross-examine witnesses but required the applicants to submit their evidence in writing without cross-examination.
   • This violated section 19(1) of the Arbitration Act, 1991, which guarantees equal and fair treatment.
   • It also ignored section 26(1), which mandates a hearing if requested, and contradicted the applicable arbitration rules that favor teleconference hearings unless parties agree otherwise.
2. Failure to Consider Submissions:
   • The arbitrator further breached procedural fairness in ignoring the applicants’ closing submissions.
   • The applicants refused to engage with the arbitrator’s in-writing only evidentiary procedure. However, they did file argument on the arbitrator’s jurisdiction and the legal test to be applied.
   • Hackland J. found that the arbitrator had wrongly refused to consider these submissions simply because the applicants did not file written evidence.

Important Note by the Court:
Hackland J. acknowledged the arbitrator’s concerns about delay tactics by the applicants but emphasized that procedural fairness must still be upheld despite a party’s conduct. He stated, “[…] it is well established that the fairness and equality of treatment standard must be adhered to in spite of a party’s conduct during an arbitral proceeding.”

Conclusion:
The arbitration award was set aside due to serious breaches of procedural fairness and unequal treatment, reaffirming the principle that all parties are entitled to a fair opportunity to present and defend their case—even if their behaviour during proceedings is questionable.

The post Fair and Equal Treatment under the Arbitration Act, 1991 appeared first on Thauli Law.

As a busy arbitrator, I found the summary of the key lessons very helpful and insightful. I will definitely keep them in “my back pocket” when I write my future decisions. I recommend reading this article if your practice includes arbitration.

The post Top 10 Canadian Arbitration Cases of 2024 appeared first on Thauli Law.

One of the main questions that I had to answer is whether an arbitrator benefits from judicial immunity in a challenge to his jurisdiction. Judicial immunity typically means that a judge cannot be compelled to testify about “events experienced in the course of their judicial duties” or “matters encountered in the course of exercising a judicial function.”[1] Whether an arbitrator benefits from judicial immunity has been the subject of debate. In Ontario, for example, the court has held that joining an arbitrator may be appropriate in certain cases.[2] Furthermore, the Arbitration Act (Ontario)[3] does not prohibit an arbitrator, whose jurisdiction is being challenged, from making submissions in certain situations. The Canadian Sport Dispute Resolution Code (the Code) is silent on whether an arbitrator has standing to make submissions.

In brief, it was my view that where the matter in issue involves factors or considerations peculiarly within the arbitrator’s knowledge or expertise, or where explanations are not going to be put forth by any of the parties, there should clearly be room for the arbitrator to make submissions on a challenge to his jurisdiction. I decided that the circumstances warranted receiving written submissions from the Appointed Arbitrator as his submissions would provide context to the challenge to his jurisdiction.

When determining whether I should remove the Appointed Arbitrator on the grounds of a reasonable apprehension of bias, I undertook an analysis of the well-established test, which is inherently contextual, fact-specific and objective. In doing so, I sought guidance from the IBA Guidelines on Conflicts of Interest in International Arbitration[4] (the IBA Guidelines), which are published rules and guidelines relating to international arbitration and comprise “General Standards” on impartiality, independence and disclosure. The IBA Guidelines have specific, non-exhaustive, scenarios that are very likely to occur in an arbitration practice. Their purpose is to assist users of whether an arbitrator’s appointment would violate the conflict of interest rules. I determined that the same standards that apply in international arbitrations should apply in this situation because the criteria and examples were determinative of whether the Appointed Arbitrator’s conduct created a reasonable apprehension of bias. Overall, I concluded that the Affected Parties, who had the onus to prove there is a reasonable apprehension of bias, failed to discharge their burden of proof, and the situation did not even come close to meeting the semblance of a reasonable apprehension of bias.

This matter, which began in November 2022, became less about sport and more about procedural wranglings. In addition to deciding on whether the Appointed Arbitrator had jurisdiction to provide submissions and if there was a reasonable apprehension of bias, I had to address the following additional issues created by the Affected Parties:

• The Affected Parties mischaracterized the preliminary meeting as a hearing because I briefly heard from each party. I had to highlight that there is no prohibition in the Code preventing me from hearing from the parties and that this was a documents-only arbitration whereby I based the entire weight of my decision on the written submissions. I indicated that any statements that the Appointed Arbitrator, or any other party, made at the preliminary meeting were immaterial to my decision and not dispositive of whether there was a reasonable apprehension of bias. I further emphasized that there was no sworn evidence, no cross-examination, no exhibits, no opening or closing statements, no argument on the test for a reasonable apprehension of bias and no citations of authorities. There was no formal motion for the purpose of seeking a remedy. Nothing was adjudicated. The preliminary meeting was simply a case management conference to discuss next steps.
• One of the Affected Parties recorded the preliminary meeting without my knowledge or consent. I had to remind him that recording for his own personal note-taking use was very different from using that recording to refer to statements made during the preliminary meeting and critiquing them in his written submissions. I wrote that it was discourteous and frankly shocking that he recorded the preliminary meeting without first advising me and soliciting my consent as it was not unreasonable to expect this level of civility. I reminded him that there is a process under section 5.10 of the Code for arranging recordings.

I admonished the Affected Parties at the end of my decision by stating that if they wished to bring applications, their applications had to be rooted in a strong evidentiary foundation. Despite this, there was a second challenge to the Appointed Arbitrator’s jurisdiction, which was also denied as well as other orders that the Appointed Arbitrator had to make throughout the hearing.

If you are an arbitrator, I encourage you to read my decision for my analysis of a challenge to an arbitrator’s jurisdiction, my discussion of the IBA Guidelines, and my handling of the side issues created by the Affected Parties. If you wish to discuss, please do not hesitate to reach out to me.

[1] R v Parente, 2009 CanLII 18685 (ON SC), at para. 6.

[2] Kitchener (City) v. G.M. Gest Group Ltd., 2003 CarswellOnt 3946, 31 C.L.R. (3d) 168, [2003] O.T.C. 914, [2003] O.J. No. 4038 (Ont. S.C.J.)

[3] Arbitration Act, 1991, 1991, S.O. 1991, c. 17.

[4] Adopted by resolution of the IBA Council on Thursday, October 23, 2014. Updated, August 10, 2015.

The post Challenging an Arbitrator’s Jurisdiction and Reasonable Apprehension of Bias appeared first on Thauli Law.

The underlying dispute involved the construction and sale of a house by the respondent. Unhappy circumstances during construction led the appellant to commence an action seeking an order for specific performance and damages. After a summary trial, the BC Supreme Court ruled in favour of the appellant by granting the order for specific performance of the contract at the agreed-upon price, including a 6% markup on change orders (the Order). The Order did not specifically mention “downgrades” or “deficiencies” in the construction, but the reasons for judgment referred to “downgrades” in declining to make any adjustments for these items.

During the final walk-through, which was a few days before completion, the appellant identified deficiencies. The respondent, however, did not rectify them. Relying on the arbitration clause in the agreement between the parties, the appellant commenced an arbitration at the Vancouver International Arbitration Centre (VanIAC) and sought compensation for the deficiencies. The parties had agreed to an arbitration clause that incorporated VanIAC’s Domestic Arbitration Rules (the Rules), which included an Expedited Procedure for claims under $250,000.

The VanIAC arbitrator dismissed the proceeding on the basis that the subject matter of the arbitration was res judicata, because in the arbitrator’s view, the question of the appellant’s entitlement to “compensation for the deficiencies” was “the very question” that had been determined by the summary trial judge. It is interesting to note Madam Justice Newbury’s comments in parathesis at paragraph 15 of the Decision where she states:

(I note that [the appellant’s] notice of application for summary trial had not sought any order concerning the deficiencies, which of course were not known until just before the completion of the conveyance. Thus they could not have been argued in the Supreme Court action. […])

The appellant sought leave to appeal the arbitrator’s decision. Saunders J.A., sitting in chambers, questioned whether the arbitrator’s decision constituted an “award” under s. 59 of the Arbitration Act, SBC 2020, c. 2 (the Act), which permitted appeals from arbitral decisions on questions of law. She referred this matter to the Court of Appeal.

VanIAC applied for leave to intervene in the leave application, given the relevance of the Rules to the underlying issue, but not in the appeal itself. In particular, R27 of the Rules states:

For arbitrations brought under an arbitration agreement entered into on or after September 1, 2020 that provide for arbitration under these Rules, the parties expressly agree that there shall be no appeal on a question of law from an Award issued under the Expedited Procedure, unless consented to by both parties. [Emphasis added.]

The Court of Appeal granted intervenor status to VanIAC given the force and effectiveness of the Rules were directly at issue. The Court concluded that the arbitrator’s decision constituted an “award” because the effect of the arbitrator’s decision on res judicata was substantive and final. The Court was also satisfied that the appellant had raised a question of law, that is, whether the doctrine of res judicata was properly applied.

The Court of Appeal, however, concluded that R27 of the Rules barred the appellant from bringing the proposed appeal, which would have normally been accepted under the Act. The Court accepted VanIAC’s submissions that the Rules for Expedited Procedures are intended to “prevent lengthy and expensive appeal proceedings that detract from the finality, expediency, affordability, and efficiency of the proceedings.” The Court dismissed the appellant’s application for leave to appeal.

The post Expedited Procedure Rules Bar an Appeal on a Question of Law appeared first on Thauli Law.

The post Appointed to the Vancouver International Arbitration Centre! appeared first on Thauli Law.

The parties entered into a contract for the construction of a house in 2021. The contract included an arbitration clause. In early 2022, when Lakehouse refused to complete the contract due to changes in the contract’s specifications and disagreement on the costs of those changes, Mr. Bollhorn brought an action in the British Columbia Supreme Court for specific performance. During the court hearing, he anticipated deficiencies that he said required rectification. The Court ruled in Mr. Bullhorn’s his favour and granted his request for specific performance.

When the deficiencies were not rectified to his satisfaction, Mr. Bullhorn filed a Notice to Arbitrate with VanIAC. He sought a determination of the deficiencies identified in the walk‑through, quantification of the cost to him of remedying such deficiencies, and certain orders concerning payment. On July 30, 2023, the arbitrator dismissed the arbitration on the basis that it was barred by the doctrine of res judicata. The arbitrator held that Mr. Bollhorn had already raised his claim of deficiencies in the Supreme Court proceedings.

Mr. Bollhorn sought leave to appeal the arbitrator’s decision under the Act. He argued that the arbitrator erred in law when he dismissed his arbitration claim on the basis of res judicata, because his Supreme Court action did not advance a claim for construction deficiencies and the contract assigned disputes over deficiencies exclusively to arbitration. In response, Lakehouse argued that even if Mr. Bollhorn was correct, the Court could not hear the appeal because the Rules prohibit parties from appealing an arbitrator’s decision for disputes not exceeding $250,000.

Although the Act limits generally restricts the court’s involvement in domestic arbitrations under section 4(a), a party to arbitration may seek leave to appeal to the Court of Appeal on any question of law arising out of an arbitral award under section 59(3). Rule 27(a) under Part B of the Rules stipulates that there is no appeal on questions of law from an award arising for disputes not exceeding $250,000, unless otherwise consented to by both parties. Mr. Bollhorn’s claim was approximately $95,000.

After the hearing of the leave to appeal application, Madam Justice Saunders requested and received submissions from the parties on the character of the arbitrator’s decision as an “award”. She considered these submissions in reviewing the Act and materials filed.

Madam Justice Saunders wrote in the decision at paragraphs 11 and 12 the following:

[11]    There is considerable force, in my view, to Mr. Bollhorn’s assertion of an error of law in the application of res judicata:

1. the deficiency walk‑through followed well after the court hearing of the claim for specific performance;
2. the contract assigns disputes about deficiencies exclusively to arbitration;
3. the court pleadings do not appear to advance a claim for deficiencies; and
4. the court order addressed only two substantive issues – title to the property, and the markup and taxes payable to Lakehouse on the change orders.

[12]   There is also considerable force, in my view, to Lakehouse’s assertion that the arbitration scheme does not allow for an appeal, even in these circumstances.

She found at paragraph 22 that the parties, through their submissions, revealed a gap in the domestic arbitration scheme, indicating that “in the event Mr. Bollhorn is correct that the application of res judicata was an error of law, and Lakehouse is correct that the decision cannot be appealed, Mr. Bollhorn’s claim under his contract will not have been heard on its merits, contrary to the expectation implicit in the contract’s arbitration clause. Further, in that event, depending on whether the decision is an “award”, no other forum may be available to him because the contract assigns this dispute exclusively to arbitration.”

Madam Justice Saunders referred the application for leave to appeal to a division of the court. While we wait for a decision, we are left with this unresolved issue in the gap of the arbitration schemes.

The post Identifying a Gap in the Domestic Arbitration Scheme appeared first on Thauli Law.