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March 10, 2022 Practice Points

It’s Not Cricket: Ontario Court Emphasizes Arbitral Awards Must Include Reasons

Providing reasons shows the parties that the arbitrator has heard and considered their arguments and that the arbitrator understood the substance of the dispute and addressed the critical issues.

By Eric Morgan

In Alberta Cricket Association v. Alberta Cricket Council, 2021 ONSC 8451, the court took the rare step of setting aside an arbitral award for failing to state the reasons on which it was based. The judge then directed that a new arbitration be conducted before a different arbitrator.

The dispute related to which organization—either the Alberta Cricket Association or the Alberta Cricket Council—controlled cricket in Alberta for the purpose of membership in a national cricket organization. At the national level, Cricket Canada is the governing body for cricket in Canada. To be a provincial member of Cricket Canada under its by-laws, a provincial cricket association must demonstrate “effective control of organized competitive cricket within the province.” The phrase was not defined in Cricket Canada’s by-laws. When the dispute was submitted to arbitration, the arbitrator went to considerable length to set out qualitative and quantitative criteria to define this language. However, in the final award in favor of the council, the arbitrator provided no reasons on the central issue, namely whether the council had “effective control” of cricket in Alberta. The award contained no analysis of how the arbitrator applied any of the effective control criteria, nor did the award refer to a single finding of fact that the arbitrator had made.

The association sought to set aside the award under s. 46(1) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 on the grounds that the arbitrator breached the association’s right to fair and equal treatment or the arbitrator failed to comply with the mandatory procedures and standards of the act. The court found that the arbitrator’s written reasons were inadequate as required under section 38(1) of the act.

The court explained in paragraph 55 the importance of providing written reasons beyond the statutory requirement, and what constituted adequate reasons:

Written reasons show the parties that the adjudicator has paid attention to their arguments and treated them fairly and with due process. Providing reasons for a decision removes the appearance of arbitrariness, makes the process transparent, and makes the decision-maker accountable because he or she is called on to explain and justify the decision. The question of the adequacy of reasons for decision is whether the reasons, viewed in light of the record and counsel’s submissions on the live issues presented by the case, explain why the decision was reached, by establishing a logical connection between the evidence and the law on the one hand, and the decision on the other. The critical question is whether in the context of the record, the issues and the submissions of the parties, the judgment is sufficiently intelligible to show that the adjudicator understood the substance of the matter and addressed the necessary and critical issues.

Practice Point

Canada, of course, has different arbitration laws than the United States, and U.S. arbitration law does not always require the arbitrator to give reasons for his or her decision. Nonetheless, as the decision above points out, providing such reasons shows the parties that the arbitrator has heard and considered their arguments and that the arbitrator understood the substance of the dispute and addressed the critical issues. This is an important part of showing that due process was followed. It also furthers the arbitrator’s professional reputation. 

Eric Morgan is a partner at Kushneryk Morgan LLP in Toronto, Ontario, Canada.

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