Procedural Fairness: Not A One Size Fits All, Except Sometimes It Is..

If a reasonable person would think it is likely a decisionmaker in a case may be biased, can the biased decisionmaker's decision ever stand? According to the Ontario Court of Appeal in Vento Motorcycles Inc v Mexico, the answer is a resounding no. This decision elaborates on this most elemental building block of procedural fairness, making it a must read for administrative decisionmakers and those involved in administrative law and arbitration proceedings.

Vento made a claim against Mexico under the North American Free Trade Agreement and argued they have been driven out (pardon the pun) of the Mexican motorcycle market. The claim went to commercial arbitration. Three arbitrators were appointed to the panel and Vento's claim was dismissed. Unknown to Vento, Mexican officials, including Mexico's counsel at the arbitration, called and corresponded with one of the arbitrators, Mexico's appointee, several times before and after the arbitration, including congratulating