On 7 October 2026, the Ontario Superior Court of Justice (the “Court”) ordered the removal of an arbitrator from an ongoing construction arbitration in Atkinsréalis Construction (Pacific) Inc v GIP Construction Ontario East Ltd (“Atkinsréalis v GIP”). The Court held that the arbitrator’s prepared, adversarial questioning of the applicant’s two principal witnesses created a reasonable apprehension of bias, despite his undisputed good faith, construction expertise and the parties’ acceptance of a more inquisitorial approach.[1]
The decision illustrates the limits of procedural flexibility in arbitration. An arbitrator may participate actively and ask questions for proper purposes, but must preserve the appearance of neutral adjudication. No actual bias was alleged, and the Court expressly accepted the arbitrator’s sincere intention to perform his role properly. The decisive question concerned how his conduct would appear to an informed, reasonable observer.[2]
Facts
Atkinsréalis Construction (Pacific) Inc. (“ATRL”) was the prime contractor for the Trillium Line Extension Stage 2 Project in Ottawa. GIP Construction Ontario East Ltd. (“GIP”) was its roadworks subcontractor. Both parties advanced claims arising from project delays and changes to the scope and timing of the work, and agreed to arbitrate their claims together. One central issue in the underlying arbitration was whether ATRL was entitled to terminate the contract when the parties could not agree on the pricing of proposed changes.[3]
The parties jointly appointed Stephen Richard Morrison (the “Arbitrator”), an experienced construction arbitrator selected for his specialist knowledge. They provided comprehensive witness affidavits and expert reports before the hearing, enabling him to prepare with substantial knowledge of the evidence and the parties’ positions.[4]
Counsel accepted the Arbitrator’s stated preference for a “somewhat more inquisitorial approach”. His terms of appointment expressly recognised his role as a neutral adjudicator and authorised him to question witnesses, including experts. They also preserved the parties’ right to cross-examine opposing witnesses and to ask further questions on matters arising from the Arbitrator’s questioning.[5]
The hearing began on 8 December 2025. On its eighth day, after the fact witnesses had completed their evidence but with three days of expert testimony remaining, ATRL sought the Arbitrator’s recusal. The Arbitrator adjourned the arbitration and dismissed the challenge in reasons dated 18 April 2026. ATRL then applied to the Court under section 13(6) of Ontario’s Arbitration Act, 1991 (the “Act”). The parties argued the removal issue afresh before the Court; no appellate standard of review was argued.[6]
Issues
The principal issue was whether the Arbitrator’s questioning, assessed objectively in the full context of the arbitration, created a reasonable apprehension of bias warranting his removal. The Court had to distinguish legitimate, active participation from interventions that gave the appearance of adopting a party’s position or prejudging the dispute.[7]
The related questions were whether the Arbitrator’s expertise, advance preparation, the parties’ consent to his approach and opportunities for follow-up questioning justified his conduct, and whether ATRL’s alleged failure to make sufficient contemporaneous objections defeated its challenge.[8]
Holding
The Court held that the Act’s mandatory requirements of equal and fair treatment include a duty of arbitral neutrality that the parties cannot exclude by agreement. The same fundamental principles governing reasonable apprehension of bias apply to judges and arbitrators, even though their procedural roles need not be identical in every respect.[9]
On the facts, the Arbitrator’s prepared cross-examinations of ATRL’s two principal witnesses created a reasonable apprehension that he had adopted GIP’s position or might have prejudged the dispute. His good intentions and the agreed procedural arrangements did not overcome that appearance. The Court therefore ordered his removal pursuant to sections 13(1) and 15(1) of the Act.[10]
The ruling left the underlying contractual disputes unresolved. Costs were also left for agreement or further submissions; the Court did not determine them in this decision.[11]
Reasoning
Neutrality remained mandatory despite the agreed procedure
The Court began with the statutory limits on party autonomy. Section 19 of the Act requires equal and fair treatment, and section 3 prevents the parties from excluding that obligation. Neutrality is integral to that protection, reinforced by section 13(1), which permits a challenge where circumstances may give rise to a reasonable apprehension of bias. The private nature of the arbitration and the parties’ choice of an expert decision-maker did not displace these requirements.[12]
The Court nevertheless left room for an inquisitorial procedure that preserves neutrality and complies with the Act. Its objection concerned the conduct of this hearing. Consent to a “somewhat more inquisitorial approach” did not authorise the Arbitrator to assume an advocate’s role. The appointment terms themselves distinguished the parties’ right to cross-examine from the Arbitrator’s authority to question witnesses, while expressly maintaining his neutral status.[13]
The objective effect of the questioning was decisive
The applicable test asks whether an informed person, considering the matter realistically and practically, would think it more likely than not that the decision-maker would not decide fairly. The assessment must account for the full context and the strong presumption of impartiality. The threshold is demanding: a party’s dissatisfaction with an adjudicator or subjective suspicion does not establish a reasonable apprehension of bias.[14]
The Arbitrator had reasoned that his questioning could not, by definition, constitute cross-examination and that he intended only to clarify evidence and ascertain the truth. The Court rejected that reasoning. An adjudicator’s formal status does not prevent their questioning from amounting in substance to adversarial cross-examination, and good intentions do not determine its objective appearance. The substance and manner of the questioning therefore mattered more than the label placed on it.[15]
The Court regarded questioning designed to secure particular admissions, undermine a party’s case or discredit its witnesses as characteristic of counsel’s adversarial function. It expressly cautioned, however, that not every leading question or question in the form of cross-examination automatically disqualifies an arbitrator. The challenged conduct must still be assessed in its complete setting.[16]
The questioning challenged the contractual position of ATRL
The examination of ATRL’s witness Mr MacDonald (“MacDonald”) illustrated the difficulty. The Arbitrator first obtained agreement to general propositions about the options available when changes to construction work are proposed. The options identified did not include termination. He later returned to those propositions to press MacDonald to accept that ATRL had not taken the available steps before terminating. The Court regarded this sequence as a prepared cross-examination directed at undermining a central part of ATRL’s case.[17]
The problem also lay in how the Arbitrator dealt with attempted explanations. He interrupted MacDonald and dismissed concerns that might have supported ATRL’s position. In a further exchange, he asked, “What is wrong with this picture?” and then challenged MacDonald’s explanation by asserting inconsistencies with documents that he did not put to the witness. ATRL’s counsel objected that the Arbitrator had misstated both the authorship and contents of an email, following which the Arbitrator ended his questioning. The Court concluded that the purported opportunity to explain had instead become an effort to undermine the witness’s account.[18]
The questioning attacked witness credibility
The Arbitrator questioned another ATRL witness, Mr Black (“Black”), about counsel’s role in drafting his witness statement, the language used and the extent of his personal knowledge. The Court accepted that a statement failing to reflect the witness’s own observations or voice could warrant reduced weight. It also recognised that counsel’s assistance in preparing affidavits was to be expected.[19]
The questioning went further. After obtaining admissions about the statement’s preparation, the Arbitrator characterised the description of a GIP letter in Black’s witness statement as “spin”. In the Court’s assessment, the purpose was to undermine Black’s credibility because counsel had drafted the evidence, rather than to explore whether he had a reasonable factual basis for it. The Court contrasted that treatment with the approach to a GIP witness: similar concerns about personal knowledge were treated as matters of weight, without an equivalent cross-examination or denunciation.[20]
The context did not cure the appearance of advocacy
The Court acknowledged that expertise and advance access to the evidence could justify informed and active participation. It also considered the transcripts as a whole, declining to decide the issue through disconnected comparisons of individual exchanges. The major, prepared interventions into ATRL’s evidence were sufficiently clear to support the conclusion that an observer could reasonably perceive alignment with GIP’s case or a predetermined view.[21]
Neither the parties’ acceptance of active questioning nor counsel’s opportunity to ask further questions altered the fundamental duty of neutrality. The question was whether the Arbitrator had conducted himself in a way that appeared fair and impartial. In this case, those procedural safeguards did not overcome the appearance created by the adversarial examinations.[22]
The objection argument did not defeat the challenge
The Court rejected the contention that ATRL’s alleged failure to object sufficiently during the hearing was fatal. It explained that delayed objection may be relevant to whether a challenge is being deployed for tactical advantage, but does not itself amount to consent to unfair proceedings. There was no evidence that ATRL had brought the challenge for an improper tactical purpose.[23]
Moreover, ATRL’s counsel had questioned the scope and propriety of the Arbitrator’s interventions more than once and sought removal while the evidentiary hearing was still underway. The Court recognised the care counsel must exercise when objecting to questions from the decision-maker. It also identified contradictions in the Arbitrator’s reasons, which treated the alleged absence of timely objections as both fatal and not fatal to ATRL’s challenge. On this record, the objection argument provided no basis to refuse removal.[24]
Conclusion
Atkinsréalis v GIP provides a concrete illustration of how arbitral questioning can cross the boundary between active adjudication and apparent advocacy. Although decided under Ontario’s domestic arbitration legislation, it addresses a practical concern in arbitrations involving specialist decision-makers: expertise and familiarity with the evidence must be exercised consistently with the continuing duty of impartiality. The manner and cumulative effect of interventions can justify removal even where the arbitrator’s good faith is accepted.[25]
For arbitrators and counsel, the decision underscores the need to preserve the distinction between probing evidence and using witness questioning to advance one party’s case. Clear procedural terms and opportunities for follow-up questions matter, but their value depends on how the hearing is actually conducted. The Court’s analysis preserves room for active questioning by arbitrators while requiring that the decision-maker remain, and reasonably appear to remain, neutral throughout.[26]
[1] Atkinsréalis Construction (Pacific) Inc. v GIP Construction Ontario East Ltd., 2026 ONSC 5666, ¶¶ 1-3, 16-20, 99-105, 115-116.
[2] Id. ¶¶ 16-20, 34, 68.
[3] Id. ¶¶ 4-6, 71.
[4] Id. ¶¶ 7-9.
[5] Id. ¶¶ 37-41.
[6] Id. ¶¶ 10-15; Arbitration Act, 1991, SO 1991, c 17, s 13(6).
[7] Atkinsréalis v GIP, 2026 ONSC 5666, ¶¶ 16-20, 56, 68, 99-105.
[8] Id. ¶¶ 90-96, 105-114.
[9] Id. ¶¶ 19-26, 44-47.
[10] Id. ¶¶ 99-105, 115-116.
[11] Id. ¶¶ 4-6, 115-118.
[12] Id. ¶¶ 21-26, 44-47.
[13] Id. ¶¶ 24-26, 92-94.
[14] Id. ¶¶ 27-34, 49, 68.
[15] Id. ¶¶ 60-67.
[16] Id. ¶¶ 65-68, 103-105.
[17] Id. ¶¶ 69-79.
[18] Id. ¶¶ 77-82.
[19] Id. ¶¶ 83-86.
[20] Id. ¶¶ 87-89.
[21] Id. ¶¶ 90-91, 97-101.
[22] Id. ¶¶ 92-96, 103-105.
[23] Id. ¶¶ 106-111.
[24] Id. ¶¶ 108-114.
[25] Id. ¶¶ 16-20, 90-105, 115-116.
[26] Id. ¶¶ 19-26, 92-96, 105.