Can an arbitrator exclude relevant evidence from a court proceeding?
Ontario, Canada
The following excerpt is from Ontario Power Generation v Society Of Energy Professionals, 2015 CanLII 79885 (ON LA):
28. (I note that Arbitrator Starkman cited the decision in Greater Toronto Airport Authority v. P.S.A.C., (2007) 158 L.A.C. (4th) 97 (Bendel) for the proposition that an arbitrator cannot exclude relevant evidence however it is obtained. I feel compelled to observe that that is clearly wrong. The most obvious examples of relevant evidence which cannot, or should not, be admitted by an arbitrator is evidence which is subject to a solicitor-client, litigation, or other applicable privilege; or (per The Law of Evidence in Canada ss. 2.70 – 2.77) when the prejudicial effect of the evidence outweighs its probative value. Notwithstanding an arbitrator’s jurisdiction to admit evidence whether or not it is admissible in a court proceeding, relevance is not the only consideration in the exercise of this discretion.)
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