prepare written offers with written submissions explaining their
offers; they would have seven days within which to decide
whether to accept the other party’s offer; if neither offer was
accepted within seven days, the arbitrator would hold a brief
oral hearing on the merits of the offers; the arbitrator would
then select the better offer, provide short reasons for his decision
and make an award on the terms of that offer.
 The respondent delivered her offer to settle and her submissions on June 22, 2011, followed by supplemental submissions, dated August 17, 2011.
 The appellant requested and was granted extensions. He
delivered his offer to settle and his submissions on September
 The appellant confirmed his position on the process in his
submissions. He indicated that the parties had agreed to a process whereby each party would present a comprehensive offer to
settle, accompanied by submissions. The arbitrator was required
to issue a final award incorporating all of the terms of one of
those offers. He did not have the authority or jurisdiction to
make an award incorporating some of the provisions of one
offer and other provisions of the other offer, nor did he have the
authority or jurisdiction to make an award containing terms
that he designed.
 The respondent delivered her reply submissions at the
beginning of November 2011.
 On November 2, 2011, the arbitrator convened a telephone conference during which he asked counsel if he could pick
and choose aspects of each offer or a position between the offers.
The arbitrator gave counsel an opportunity to speak to their
 A further telephone conference was held a week later, on
November 9, 2011. The arbitrator referred to this discussion in
his arbitration award (at para. 3). He noted that, having
reviewed the parties’ offers, he detected “a certain asymmetry of
position”. The arbitrator invited the parties to consider a modi-
fied form of final offer selection by permitting him to exercise his
discretion to fashion a result that may be different from either or
both of their final offers. “However, as was their right, they spe-
cifically rejected this option.”
 According to the respondent’s affidavit, it was counsel for
the appellant who said that his client did not want to change the
terms. At that point, there was no need for the respondent to
indicate her position since, absent both parties’ agreement
to change the process, the arbitrator and the parties were bound
to follow the final selection process.