Is Arbitration Right for Every Case?
by Judith Nicoll
Readers of this Newsletter will no doubt have read the FDRIO response to reports that an Ontario arbitrator had sided with a mother who chooses not to vaccinate her children. The National Post reported (Mar.28/19) that the Arbitrator had accepted anti-vaccination evidence from a medical doctor who now practiced chiefly in alternative medicine. The article reported that the Arbitrator qualified the doctor as an expert on vaccination, although a Judge in the U.S. had declined to do so in a similar case.
It appears that the father in the case either has or intends to take the matter further, reporting through the Post and other media outlets that he had neither counsel nor expert evidence at the hearing. I have not sought him out nor have I sought out the award as it appears that access to it is restricted by the confidentiality terms of their arbitration. Although the father appears to have made at least some of it public, I will not comment on the award itself and instead limit my comments to what has been reported. All of my comments should be tempered with the knowledge that I have not had the benefit of a full reading of the award itself.
The reported arbitration raises a significant number of issues that I would submit have far reaching consequences for those who practice in the ADR community. Without the benefit of reading the award, I can only raise the questions, while the answers may remain unanswered until the award is available and/or an appeal is heard. Notwithstanding, here are a few of the issues which spring to my mind.
I do not know how these people came to be in an arbitration process. I am going to assume that they had a separation agreement that provided for secondary arbitrations on various issues. If I am correct in that assumption, it would have been reasonable for the parties to expect that this problem was to be resolved in an ADR process and that they were therefore precluded from proceeding to court.
My first issue on these facts is whether someone, be it a lawyer or the Arbitrator, should have considered whether this was an appropriate case to be heard in a private arbitration process rather than in the courts. I would respectfully suggest that given the potential public policy considerations of this case, the matter should have been more properly considered before the courts. Arguably, this would not have been for mother’s lawyer to consider but certainly, in my view, it was a consideration for the Arbitrator. Ontario courts have previously found that the issue of vaccinating a child is a matter of public policy as expressed in the Immunization of School Pupils Act.[i]
In considering the appropriateness of proceeding in a private ADR model, I would also suggest that there were a number of services that were not available to the Arbitrator or the parties which would have been available had this dispute been in the court system. This may be yet another reason why this could have been an unsuitable case for the arbitration process.
Given that the health of children could have been at stake, and if the Arbitrator was alert to Article 24 of the Convention on the Rights of the Child providing that a child has the right to “enjoyment of the highest attainable standard of health”, consider whether the issue of potential harm to these children or others was a matter to be considered with the assistance of the Office of the Children’s Lawyer or even the Children’s Aid Society. Options might have included having the children represented through the OCL offices or even an assessment having been done by them. Currently, the Office of the Children’s Lawyer does not provide services in most private resolution processes.
We are told that the father did not have a lawyer of his own at the hearing. Assume for the moment that this was because of a lack of resources. Without knowing what the father’s circumstances were, I cannot speak to whether he would have qualified for court annexed services but in the private process, he could not have them. If he did qualify, he might have had access to a lawyer through Legal Aid or a lawyer acting as Duty Counsel. In the private process he had neither of those options.
In the C.M.G. v. D.W.S. case previously cited, Justice Harper attempted to have the OCL act for the child in the hopes of ensuring that a complete evidentiary record would be placed before the court (at that point, both parties were unrepresented) in order to make a just determination of the issue. The OCL declined to accept his appointment under s.89(3.1) of the Courts of Justice Act as to do so would have meant that they could only put forward the law and evidence that supported the child’s position, unlike the request by the Judge for evidence on the conflicting positions with respect to vaccinations.
Left with the OCL decision, Justice Harper relied upon his parens patriae jurisdiction to appoint an amicus curiae – a friend of the court – to provide evidence on both the positions regarding vaccinations to ensure a complete record was before the court. As Justice Harper pointed out, the appointment of an amicus curiae is in the discretion of the court. The role has not been defined by legislation in Ontario, unlike some other jurisdictions in Canada.[ii] In Ontario, Rule 13.02 of the Rules of Civil Procedure also provides:
Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the Court for the purpose of rendering assistance to the Court by way of argument.
An Arbitrator has no authority in Ontario to appoint an amicus as the Arbitrator does not have parens patriae jurisdiction nor is an Arbitrator a judge or master. The term, meaning “to act in the stead of a parent for the protection of a child” applies to the inherent jurisdiction of superior courts. Whilst there is not a clear definition of what the exercise of this jurisdiction entails, it simply is not available to an Arbitrator under any circumstances unless something approximating it is contractually included by the parties in their arbitration agreement.
Justice Harper received submissions from his appointee (Alf Mamo, in this case) summarizing the parents’ positions and providing case law on the options available to the court. On the evidence and with these materials, His Honour made a finding in support of having the child vaccinated.
Justice Harper’s decision is the most current and complete decision relating to vaccination in Ontario. In the absence of the arbitral award, we cannot know if this decision was brought to the attention of the Arbitrator.
Family arbitrations oblige the parties to be screened for domestic violence and power imbalances prior to conducting an arbitration. A detailed analysis of that process is not the subject of this article but, in brief, I would question whether the imbalance of having one party unrepresented in this very important issue should have been enough for the Arbitrator to either decline to accept the case or, at a minimum, to consider whether any additional procedures were needed to ensure that both parties had a fair and equal process. I would submit that there are many ways in which there can be a power imbalance and the lack of necessary financial resources for a lawyer or for experts may be but two of them.
Appointment of an Expert
One of the additional procedures which might have been considered can be found in Section 28 of the Arbitration Act which provides that an arbitral tribunal may appoint an expert to report to it on specific issues. Without reading the Award it is not known whether this was contemplated by the Arbitrator or whether either party reminded the Arbitrator that he had this jurisdiction and asked him to exercise it. Arguably, this might have been another way in which the perceived imbalance of the father having no expert witnesses might have been redressed. While this does not deal with the many other issues raised above, it might have left the parties with a greater sense of equality and fairness.
As I stated at the outset, I do not have the answers to the questions raised by this recent Award nor should I have without first reading it in its entirety. I raise these points only so that we might consider them the next time an issue like this arises. FDRIO Standard 3 reminds us that we ought to do no harm and Standard 4 states that we must respect the rights of children. I would respectfully suggest that these and other obligations under the Arbitration Act, oblige us to look a little harder and a little longer to assess whether the only fair and equitable thing to do as an Arbitrator in a specific case is to turn it away.
McInnis & Nicoll
[i] See C.M.G. v. D.W.S.,  O.J. No. 1840
[ii] See Manitoba, New Brunswick and Newfoundland for their legislation, respectively, Court of Queen’s Bench Rules, Man. Reg. 553/88, Rule 13.02: Rules of Court, NB Reg 82-73, Rule 15.03; Rules of the Supreme Court, 1986, SNL 1986, c.42, Sch D. Rule 7.06.