36 THE ADVOCATE
VOL. 77 PART 1 JANUARY 2019
the process prejudicially eliminated oral testimony and cross-examination,
and the arbitrator’s reasons were inadequate.
The husband complained that the absence of court protocols rendered
the decision unfair. However, the court found that as long as the arbitration
hearing was fair and equal to both parties, with the ability for each to present
his or her case and respond to the opposing case, the requirements for
fairness were met.
The court held that “there is no general requirement that a family law
arbitration be conducted by way of an oral hearing, with sworn testimony
and the opportunity to cross-examine and re-examine”.17 The court also
noted that the arbitrator gave the parties an opportunity to present offers on
an issue-by-issue basis, but the husband declined, and thus the arbitrator
was compelled to proceed in accordance with the med/arb agreement,
accepting one complete offer or the other.
ADEQUACY OF ARBITRATOR’S REASONS
With respect to the adequacy of the arbitrator’s reasons, the Ontario Superior
Court stated in Yanovski:
… an arbitrator’s reasons are important so that the losing party knows
why he or she has lost and for the purpose of appeal. The Arbitration Act
also mandates reasons. The reasons may be brief, but they must be sufficient
to explain why the arbitrator reached his or her conclusion.
In this case, the arbitrator concluded that the respondent’s offer more
closely conformed to the statutory objectives, jurisprudential principles
and the evidence. In reaching this conclusion, he reviewed the pluses and
minuses of each party’s offer with respect to each of the issues before him,
that is, property, child support and spousal support. In so doing, the arbitrator
considered both the evidence and the relevant legal principles, in
particular, the factors and principles for the determination of support.18
The court remarked that the adequacy of an arbitrator’s reasons must be
measured by the goals of the arbitration process, which differs from a court
proceeding. Arbitration strives to be quicker and less expensive than court
In British Columbia, s. 33 of the Arbitration Act permits an application for
“more detailed reasons”; however, the request must be made in writing
before an award is handed down. The section provides:
(1) A party to an arbitration may apply to the court for an order that the
arbitrator give more detailed reasons for an award.
(2) On an application under subsection (1), the court may order that the
arbitrator state the reasons for the award in detail that is sufficient to
consider any question of law that arises out of the award, were an
appeal to be brought under section 31.