848 THE ADVOCATE
VOL. 77 PART 6 NOVEMBER 2019
Against this backdrop, the questions that arise in interpreting and applying
the B.C. amendment, and determining its significance, are as follows:
a) What was the pre-amendment test for challenging an arbitrator’s
independence or impartiality in the international commercial
arbitration context in B.C.?
b) Has the amendment changed anything?
c) Is there a different test for a challenge to an arbitrator’s independence
or impartiality in a domestic case under B.C.’s Arbitration Act,8
which has not been similarly amended?
THE TEST FOR ARBITRATOR BIAS BEFORE THE AMENDMENT
The longstanding test for arbitrator bias in Canada was established by Rand
J., writing for the Supreme Court of Canada, in Szilard v. Szasz,9 in 1955:
“Nor is it that we must be able to infer that the arbitrator ‘would not act in
an entirely impartial manner’; it is sufficient if there is the basis for a reasonable
apprehension of so acting.”10
The Szilard “reasonable apprehension” test was affirmed in 1978 in Committee
for Justice and Liberty v. National Energy Board,11 where the Supreme
Court adopted the comment by Rand J. that the “probability or reasoned suspicion
of biased appraisal and judgment, unintended though it be”, is ground
for disqualification.12 The concern for an apprehension of bias or a suspicion
of bias is often linked to Lord Hewart’s dictum in R. v. Sussex Justices
that “justice should not only be done but should manifestly and undoubtedly
be seen to be done”.13
HAS THE AMENDMENT CHANGED ANYTHING?
Courts in Canada have not gone further than the statement from Szilard in
elaborating the common law test for bias in the arbitration context. The
applicable test is simply the “reasonable apprehension” test. On its face, the
2018 amendment to the B.C. International Commercial Arbitration Act dramatically
alters the common law test for arbitrator bias. We have moved
from a search for a suspicion of bias to a need for proof of a real danger of
bias. This is essentially what the Attorney General said was the object and
purpose of the “real danger” amendment.
To understand just how dramatic this shift is, we must examine the current
test for bias in a domestic arbitration context. The domestic arbitration
statute has not been similarly amended. By considering the test that the
courts would apply in the domestic arbitration setting, the difference that
the amendment has made in international arbitrations will be revealed.