Canada: Ex Parte Communications In Arbitral Proceedings - Worth The Risk?: Hunt v. The Owners, Strata Plan LMS 2556

It is a well-established principle in judicial proceedings that a judge should not discuss any part of an ongoing case with only one party to the dispute. In Hunt v. The Owners, Strata Plan LMS 2556, the B.C. Court of Appeal recently confirmed that private conversations between an arbitrator and one party to the dispute, even those touching on procedural matters, can give rise to a reasonable apprehension of bias and provide a basis to set aside an arbitral award.


The Hunts, owners of a strata unit and self-represented litigants, initiated an arbitration against the Strata Corporation (the "Strata") under the Strata Property Act, S.B.C. 1998, c. 43 (the "Act"). Although the Hunts expressed a preference for a single arbitrator, a three-person arbitration panel was constituted. After a four-day hearing, the arbitrators ultimately ruled against the Hunts and awarded special costs in favour of the Strata.

In preparing for the special costs assessment, the Hunts discovered that the Strata's lawyer had engaged in the following four private communications with the arbitrators during the proceedings:

  1. An email to the Strata's nominated arbitrator on the issue of whether there should be a single arbitrator or a panel of three;
  2. A private conversation with the panel chair on the Strata's settlement proposal should the dispute go to mediation;
  3. A private conversation with the Hunts' nominated arbitrator on the Strata's proposed mediation settlement; and
  4. A phone call from the Strata's nominated arbitrator on the possibility of a mediated settlement.

These private conversations were never disclosed to the Hunts by the Strata's counsel or by the arbitrators. Rather, the Hunts obtained the file of the Strata's counsel in the course of preparing for the assessment of special costs.

After discovering the communications, the Hunts brought an application for judicial review to set aside the arbitral and costs awards. The chambers judge dismissed the application for judicial review, finding that the arbitrators' decision was correct.

The Court of Appeal allowed the appeal and found that the chambers judge erred in failing to find that the four ex parte communications created a reasonable apprehension of bias.

Private communications and the apprehension of bias

On appeal, the Strata argued that the content of the ex parte communications was purely procedural and did not involve the taking of evidence. As such, the conversations did not raise a reasonable apprehension of bias.

In considering the issue of procedural fairness, the Court of Appeal cited the well-accepted principle that the closer the function of the decision-maker is to the judicial function of adjudicating a dispute, the more the decision-maker will be expected to comply closely with the standards expected of judges.1 In this case, the Court noted that the arbitration proceeding under the Act was modelled on a judicial proceeding; the arbitration decisions were important to the persons affected by them; and the arbitrators were lawyers presumed to be well-versed in the legal tradition of the neutrality of decision-makers.

Further, the Court found that the issues being discussed in the ex parte communications were not trivial, stating:

"Private conversations between an arbitrator and one party to the dispute do not necessarily have to deal with the merits of the dispute or evidence in order to be disqualifying."2

For example, the first of the private conversations related to the decision to be made by two of the arbitrators on whether the arbitration would proceed before a single arbitrator or a panel of three. The Court of Appeal found that this decision was material having significant costs consequences for the Hunts who had advocated for a single arbitrator. Indeed, the Strata's lawyer himself recognized that the costs of the arbitration might be of some strategic importance.

Likewise, the private discussions regarding mediation were also found to have significant consequences to the Hunts. These discussions painted the Strata as the reasonable party in the dispute (and by inference painted the Hunts as the unreasonable party). The Court specifically noted the irony in the arbitrators' willingness to engage in ex parte communications with the Strata's lawyer regarding the Hunts' position on mediation while failing to comply with their arbitral duty under the Act to raise the mediation option with both parties. In this case, the Strata understood that the comparative costs as between mediation and arbitration were of strategic importance and could be used as a tool to put pressure on the Hunts.

The Court concluded that there was a reasonable apprehension of bias, applying the test as to what an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude.  Actual prejudice is not necessary to give rise to an unfair process.

The Court of Appeal also addressed a common misperception about the role of a "nominated" arbitrator.  The Court noted certain correspondence from the Strata to its counsel wherein the Strata referred to one of the arbitrators on the panel as "its nominee".3 This possessory use of the word "nominee" implied an expectation that the arbitrator would show some loyalty to the Strata and be more receptive to its viewpoint. The Court of Appeal affirmed the principle that, once appointed, the duty of arbitrators is "not to act as advocates but as free, independent, and impartial minds".4


This decision underscores the importance of maintaining "appropriate professional distance" in arbitral proceedings. Despite the often flexible and informal nature of arbitral proceedings, which has the benefit of promoting the expeditious resolution of disputes, care must be taken not to slip into the realm of familiarity between arbitrator and counsel even in seemingly trivial procedural matters. The Court reminds us of the old adage: "justice must not only be done, it must be seen to be done".5 This principle applies equally to arbitral proceedings, even where there is provision for a party's nominee on the arbitral panel. 

The Court of Appeal's decision in Hunt does not mean that every private communication between a party and an arbitrator will give rise to reasonable apprehension of bias. However, this begs the practical question: why risk tainting the process?


1 Hunt v. The Owners, Strata Plan LMS 2556, 2018 BCCA 159 at para 75 [Hunt].

2 Hunt, supra at para 99.

3 Emphasis in original.

4 Hunt, supra at para 115, citing Refrigeration Workers Union, Local 516 v Labour Relations Board of British Columbia (1986), 27 DLR (4th) 676 at 681 (BCCA).

5 Hunt, supra at para 82; Strata Plan VR 2733 v Jensen, 2000 BCSC 1489 at para 19, citing The King v Sussex Justices, [1924] 1 KB 256 at 259.

To view the original article click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions