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Appeal-Judicial Review - Fairness - Arbitration. All Communications Network of Canada v. Planet Energy Corp.
In All Communications Network of Canada v. Planet Energy Corp. (Ont CA, 2023) the Court of Appeal considered alleged failures of an arbitrator's requirements of disclosure as a fairness issue:[51] Planet’s second ground of appeal is that it was “arbitrarily denied reasonable discovery rights” because ACN failed to produce all relevant documents as “Xoom’s rushed but significant production of over 400 documents was not delivered until after the evidentiary hearing and 4 days before closing submissions”. They included documents that the arbitrator acknowledged were “highly relevant” to Planet’s case. Planet claims it was thereby denied the right to cross-examine witnesses or make closing submissions on a complete evidentiary record.
[52] Natural justice requires that an arbitrator act with procedural fairness, the requirements of which depend on the subject-matter of the dispute, the circumstances of each case, the nature of the inquiry, and the rules under which the parties have agreed to arbitrate their dispute: 0927613 B.C. Ltd. v. 0941187 B.C. Ltd, 2015 BCCA 457, 392 D.L.R. (4th) 541, at para. 60 (citations omitted).
[53] The failure to give a party the opportunity to present its case by ordering production of necessary documents, refusing to admit relevant evidence, or failing to deal with all issues for determination, may constitute a breach of the rules of procedural fairness and natural justice: Arbutus Software Inc. v. ACL Services Ltd., 2012 BCSC 1834, at para. 81. See also: Williston Navigation Inc. v. BCR Finav No. 3, 2007 BCSC 190, 69 B.C.L.R. (4th) 187, at paras. 45-53; Amos Investments Ltd. v. Minou Enterprises Ltd., 2008 BCSC 332, 45 B.L.R. (4th) 258, at paras. 26-39.
[54] The question for the application judge was whether the arbitrator breached Planet’s right to procedural fairness, and if so, whether the breach was “sufficiently serious to offend our most basic notions of morality and justice” such that it “cannot be condoned”: Consolidated Contractors, at para. 65.
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