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Making sense of Family Law Disputes when using Arbitrators or Lawyers

Arbitration, whether as an adjunct to mediation or on its own, has become an extremely popular method of resolving family law disputes. Senior members of the bar, retired judges and mental health professionals all advertise themselves as family law arbitrators. To date, the training required to be a family law arbitrator, as mandated by the regulations made under the amended Arbitration Act is limited to: a) Every family arbitrator must have received at least 14 hours of training in screening parties for domestic violence and must participate in 10 hours of training over any two-year period, half of which must address domestic violence; and b) All non-lawyer family arbitrators must also complete 30 hours of training on Ontario family law. Any other training is merely recommended or suggested. Hence, there is no requirement in Ontario for training in the actual conduct of an arbitration, nor in the legal process that is an essential part of an arbitration or in the writing of an award.

The rules of natural justice must inform all family law arbitrations. Parties are entitled to a fair hearing, which has been held to include parties knowing the evidence being considered by the decision-maker and, hence, the arguments and proofs they have to make or meet. Parties must be informed of adverse information and given a chance to address it. Generally, this means that a party should have access to all of the relevant material gathered, although the courts have held that access to each and every document does not have to be provided, and that sometimes a summary can be considered sufficient.

What do the rules of natural justice look like in an arbitration context? Essentially, they can be summarized as the duty to give the parties a reasonable opportunity for presenting his or her case, or audi alteram partem. This has been expanded as follows:

Each party must be treated fairly and equally. * Parties must have adequate notice of time and place of hearing. * Each party must be allowed to give evidence and cross-examine. * Each party must be allowed to make submissions and respond to the other party’s submissions. * The right to appear or make argument (whether in writing or in person) before the ultimate decision-maker. * The process followed must ensure that both parties clearly know the case to be met.

Non-lawyer arbitrators may be ill equipped to handle the legal framework and, in particular, the procedural fairness requirements that must form part of the arbitration process. In order to combat that lack of knowledge, some mental health arbitrators have adopted the practice, whether formal or informal, of consulting with a lawyer colleague before and during the arbitration. Mental health arbitrators are advising parties of the potential for consultation with a legal-trained neutral advisor in their arbitration agreements. A sample of such a clause reads as follows: Expert Evidence

The parties agree that if arbitration takes place and issues of law arise, then in his/her sole discretion, the Arbitratormay obtain independent legal advice to assist her in the determination of those issues.

The parties shall have access to any representations or opinions provided by such counsel.

The cost of such counsel shall initially be borne by the parties equally subject to reapportionment by the Arbitrator.

It is this author’s belief that this practice ought either to be carefully controlled or even prohibited. For the reasons canvassed below, such consultation could result in the award being challenged because of an improper delegation of decision-making authority by the arbitrator. Since it is relatively new, there has not yet been any case law addressing the practice. I will therefore consider the issue by analogy to the rulings that have been applied to administrative tribunals.

It has been considered acceptable for a tribunal to consult with a lawyer and to rely on that lawyer’s assistance in the conduct of hearings, unless otherwise prohibited by statute. Over the course of the hearing, counsel to the tribunal may assist in a variety of ways, including aiding the tribunal in making evidentiary and procedural rulings, conducting research, resolving jurisdictional challenges and such. However, the lawyer’s involvement must not be so extensive or intrusive as to give rise to the impression that s/he has taken over. The lawyer cannot effectively become the decision-maker, nor should the lawyer’s actions create a reasonable apprehension of bias with respect to either the matters in issue or any of the parties.

Similarly, once the hearing is completed, a tribunal may seek legal assistance as part of the process of reaching a decision and preparing reasons. The case law has considered that the appropriate extent of this assistance depends on the terms of the tribunal’s governing legislation, its nature and composition, the issues raised and the workload of the tribunal. 6 For example, a non-legal tribunal made up of laypersons required to deal with difficult questions of law may be allowed considerable scope for involving counsel. In such cases, counsel have been permitted to summarize evidence, prepare memos of law, and even give advice on draft awards. Conversely, a legal panel, such as a disciplinary tribunal of the Law Society, may have very little ability to seek legal advice or assistance on their decisions. This is largely due to the fact that such a tribunal is made up of lawyers and that the parties who appear before it have counsel. 7 Again, when making a decision or an award, the legal assistance provided cannot take the decision-making function away from the tribunal. It has also been held that, if in the consultation new issues or arguments are raised, these must be presented to the parties so that they have an opportunity to address them. 8 Lastly, courts have found that substantive advice provided by staff members to the tribunal must be revealed. 9

What does a family law disputes with arbitration more closely resemble? I would suggest that it should be considered akin to a legal tribunal. It is this author’s belief that arbitrators should not be consulting with counsel behind the scenes unless the nature and extent of this consultation are carefully delineated. Otherwise, it is impossible for parties to know the exact nature of the consultation and, hence, to be ensured of a fair process with an award being made by a neutral arbitrator who has not in any way been influenced by the man (or woman) behind the curtain. Family law disputes arbitrators must have the expertise necessary to maintain procedural fairness and to make any and all legal decisions and rulings. If they cannot do so, quaere whether they should be arbitrating in the first place. There should be minimum mandatory formal arbitration training, as well as mandated membership in a professional organization. This would ensure that non-lawyer arbitrators are sufficiently educated on these essential aspects of the process. In the alternative, perhaps non-lawyer arbitrators should co-arbitrate with legally trained arbitrators, so that any consultation is guaranteed to be transparent. It is an issue that must be resolved, as more and more awards could be affected by the consultation process.

1. Bennett v Wilfred Laurier University (1983) 15 Admin. L.R. 42 (Ont Div Ct); affirmed (1984) 15 Admin L.R. 49 (CA). 2. Mediation/Arbitration Agreement: Linda Chodos MSW RSW. 3. Omineca Enterprises Ltd. v. British Columbia (Minister of Forests) (1992), 7 Admin. L.R. (2d) 95 (B.C.S.C.); affirmed (1993), 85 B.C.L.R. (2d) 85 (C.A.); leave to appeal to S.C.C. refused [1994] 6 W.W.R. lxxi (S.C.C.). 4. Matthews v. Ontario (Physiotherapy Board) (1990), 44 Admin. L.R. 147 (Div. Ct.). 5. Brett v. Ontario (Physiotherapy Board) (1991), 77 D.L.R. (4th) 144 (Ont. Gen. Div.); affirmed (1993), 13 Admin. L.R. (2d) 217 (C.A.). 6. Khan v. College of Physicians & Surgeons (Ontario) (1992), 9 O.R. (3d) 641 (C.A.); and Emerson v. Law Society of Upper Canada (1983), 44 O.R. (2d) 729 (H.C.). 7. Spring v. Law Society of Upper Canada (1988), 30 Admin. L.R. 151 (Ont. Div. Ct.). 8. I.W.A., Local 2-69 v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282. 9. IWA Local 2-69 v Consolidated Bathurst Packaging Ltd. [1990] 1 SCR 282.

Ontario Bar Association ADR Section March 2009 Newsletter Volume 17, No.2


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