Court removes arbitrator from Trillium Line dispute over appearance of bias

An Ontario court has removed the arbitrator hearing a dispute over Ottawa’s Trillium Line extension after finding that his questioning of witnesses created a reasonable apprehension of bias.

The October 7 ruling in Atkinsréalis Construction (Pacific) Inc. v. GIP Construction Ontario East Ltd., 2026 ONSC 5666 concerns the fairness of an unfinished arbitration. Justice F.L. Myers of the Ontario Superior Court of Justice’s Commercial List expressly said actual bias was not alleged and no one questioned arbitrator Stephen Richard Morrison’s good-faith intention to perform his role properly.

The court did not decide the contractors’ underlying claims about delays, changes to the work or responsibility under their contract.

Challenge during an unfinished hearing

Atkinsréalis was the prime contractor on the Trillium Line Extension Stage 2 project. GIP was its roadworks subcontractor. Each company had claims against the other arising from project delays and changes to the agreed scope and timing of work, and they agreed to hear those claims together in arbitration.

The parties selected Morrison for his construction expertise and experience. They also expressly accepted his preference for active questioning. Their appointment terms allowed him to question witnesses and gave counsel an opportunity to ask follow-up questions.

The arbitration began on December 8, 2025. Atkinsréalis sought Morrison’s removal on the eighth hearing day, after the fact witnesses had finished and with three days of expert testimony remaining. Morrison rejected that challenge in reasons dated April 18, 2026.

Atkinsréalis then applied to court under the Arbitration Act, 1991. Myers considered the issue afresh under section 13(6), rather than treating the application as an ordinary appeal from Morrison’s decision.

Expertise did not displace neutrality

The legal test was objective: what would a reasonably informed person conclude after considering the conduct realistically, practically and in its full context? Myers stressed the strong presumption of impartiality and the substantial threshold required to establish a reasonable apprehension of bias.

The judge also recognized that arbitrators may actively clarify evidence and manage proceedings. A leading question does not automatically disqualify an arbitrator. The problem was how Morrison’s prepared questioning operated in this particular hearing.

Sections 3 and 19 of the Act made equal and fair treatment mandatory, Myers explained. Parties could choose a flexible process, but their agreement to an active arbitrator could not eliminate the obligation of neutrality.

Questioning crossed the line

Myers examined lengthy passages involving two Atkinsréalis witnesses. In one exchange, Morrison first obtained agreement about the options generally available when construction work changes. That list did not include terminating the contract, a central issue in the dispute. He later used those answers to press the witness about Atkinsréalis’s conduct.

The judge found that this went beyond clarification. Morrison interrupted explanations, dismissed concerns the witness raised and pursued an admission that undermined a key part of Atkinsréalis’s case. Those were findings about the questioning technique, rather than a decision that Atkinsréalis had acted improperly under the subcontract.

A second exchange concerned a witness statement prepared with lawyers’ assistance. Myers accepted that evidence outside a witness’s personal knowledge could receive less weight. But he found Morrison’s questioning went further by discrediting the witness’s evidence because counsel had drafted it. Comparable concerns about a GIP witness’s personal knowledge were treated as matters of weight without the same cross-examination.

GIP pointed to other transcript passages to argue that its witnesses had faced similar questioning. Myers nevertheless found the major interventions, considered in context, created a reasonable apprehension that Morrison had adopted GIP’s position or opposed Atkinsréalis’s position.

The court considered the arbitrator’s advance preparation, expertise and permission for follow-up questions. None displaced the requirement of neutrality. Myers also distinguished an earlier Dufferin case involving the same arbitrator, where a similar challenge had been rejected after a review of that hearing’s record.

Objections and the order

Myers rejected the argument that Atkinsréalis’s objections were inadequate. Counsel had challenged the questioning respectfully more than once and sought removal before the evidentiary hearing ended. The judge noted that Morrison himself had found no evidence the challenge was brought for tactical reasons.

The court ordered Morrison’s removal under sections 13(1) and 15(1). It did not appoint a replacement, determine new hearing arrangements or award damages on the construction claims.

No costs amount was fixed. If the parties could not agree, the court permitted written costs submissions. The ruling preserves room for active, knowledgeable arbitrators while emphasizing that their questioning must maintain both fairness and the appearance of impartiality.