The arbitrator's unresponsiveness for several months caused significant prejudice: court
The Ontario Superior Court of Justice has removed an arbitrator in a family dispute case due to significant delays in the mediation-arbitration process.
In Maharajh v. Mathura, 2024 ONSC 5737, the court granted the applicant’s motion to remove the arbitrator after finding that the delays caused prejudice and unfairness, undermining the purpose of the arbitration. The court also terminated the mediation-arbitration agreement and directed the parties to return to trial management.
The case involved a couple who separated in 2021 and share three children. After multiple delays, the parties agreed to mediation-arbitration with the arbitrator in early 2024. Mediation failed in March, and the arbitrator directed both parties to exchange settlement offers. The applicant complied, but the respondent did not submit an offer or engage actively in arbitration.
Despite the applicant’s counsel attempting to schedule arbitration in April and May, the arbitrator remained unresponsive for weeks. This lack of communication and progress led the applicant to express concerns about delays and associated financial costs. After several failed attempts to reach the arbitrator, the applicant’s counsel formally requested her to recuse herself. The arbitrator agreed to withdraw if both parties consented, but the respondent refused.
Citing s. 15(1) of the Arbitration Act, the Superior Court emphasized that it has the authority to remove an arbitrator for undue delays, which must be shown to cause actual prejudice or unfairness. The judge concluded that the arbitrator’s unresponsiveness from April to August, coupled with the respondent’s non-compliance, had caused significant prejudice to the applicant, as a trial scheduled for March could have resolved the matter by now.
The court found that ongoing delays rendered arbitration unworkable and noted that returning to trial management was necessary for a fair and timely resolution. The respondent was ordered to pay full indemnity costs for failing to participate in the motion, which the court deemed unnecessary.
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