Setting Aside an Arbitration Award

The new regime for Family arbitration law in Ontario was created by the Family Statute Law Amendment Act (FSLAA) in February of 2006.

One of the significant changes it has made to the old regime of family law arbitration is that now a party to a family arbitration cannot simply waive their right to appeal the arbitration award.

Section 46 of the Arbitration Act outlines the various grounds a judge has at his/her disposal to set aside the arbitration award. However, the power that judges have to set aside the arbitration ruling has been rarely used, as courts still generally believe that a certain amount of deference should be awarded to the arbitrator’s decision.

In the case of Duguay v. Thompson-Duguay, Justice Perkins concluded that the arbitrator appeared biased towards one of the parties. As a result, Justice Perkins ruled that the family arbitration award be set aside pursuant to section 46 of the Arbitration Act.

Templeton J., in the case of Hercus v. Hercus, quoted Justice Perkins in Duguay and confirmed that in a mediation/arbitration forum, when the parties’ initial arbitration agreement falls through, it is incumbent on the arbitrator to assist the parties in reaching a new agreement prior to initiating the arbitration proceedings. If the arbitrator neglects to provide such assistance to the parties, the arbitration award could be set aside on a motion made by a party to the proceedings.

What stands out in Duguay above all, is the additional information set out in the court’s decision, which explicitly states that the Arbitration Act’s enforcement provisions “are not framed particularly for family law. Especially not for custody and access matters.” Many have thereby speculated that family arbitration awards are, indeed, not final.

To learn more about setting aside an arbitration award, call 905.707.3370 today.