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Legal framework

National arbitration laws

What legislation applies to arbitration in your jurisdiction?

Arbitration is the subject of legislation at the federal, provincial and territorial levels in Canada. British Columbia, Alberta, Manitoba, Saskatchewan, Ontario, Nova Scotia, New Brunswick, Newfoundland and Labrador, Prince Edward Island, the Yukon, the Northwest Territories and Nunavut have separate statutes for domestic arbitration (the Arbitration Act or the Commercial Arbitration Act) and international arbitration (the International Commercial Arbitration Act). The New York Convention and UNCITRAL Model Law are incorporated into international legislation either wholesale or in modified forms. Domestic provincial legislation is also generally based on the Model Law, with many provinces adopting aspects of it in different ways. Federal legislation is also in place governing domestic arbitration (the Commercial Arbitration Act), also based on the Model Law but with limited application. In Quebec, Canada’s only civil law jurisdiction, arbitration is governed by the Civil Code of Quebec (relevant sections in Books 5 and 10) and the Quebec Code of Civil Procedure (Book 7).

Mandatory laws

Are there any mandatory laws?

The statutes in which the Model Law has been adopted in Canada generally allow the parties to agree their own procedural rules for conducting the arbitration, including rules departing from the default positions in the statute. The major mandatory rule is the requirement that the parties be “treated with equality” and “be given a full opportunity to present their cases”. In Quebec, that mandatory rule of equality expressly extends to the parties’ right to participate in the selection of the arbitrators (Article 2641 of the Civil Code). Other rights conferred on parties by legislation may also be considered mandatory and parties should be alive to the risk that a court may not uphold its bargain to exclude such rights.

New York Convention

Is your country a signatory to the New York Convention? If so, what is the date of entry into force?

Yes. It entered into force in Canada on August 10 1986.   

Are there any reservations to the general obligations of the convention?

Canada declared that it would apply the convention only to differences arising out of legal relationships, whether contractual or not, which are considered commercial under the laws of Canada, except in the case of the province of Quebec, where the law did not provide for such limitation.

Treaties and conventions

What other treaties and conventions in relation to arbitration is your jurisdiction party to?

On November 1 2013 Canada ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, commonly known as the ICSID Convention.

UNCITRAL

Has your jurisdiction adopted the UNCITRAL Model Law?

Yes. Canada and its provinces were among the first jurisdictions in the world to enact legislation expressly implementing the Model Law. It is incorporated into provincial legislation governing arbitration, in some cases in modified form. 

Reform

Are there any impending plans to reform the arbitration laws in your jurisdiction?

When Canada’s provinces first adopted the Model Law in 1986, their implementing legislation was not uniform and a number of provinces deviated from it in certain respects. The lack of complete uniformity led to some discrepancies in how the courts addressed arbitration issues. Nevertheless, there was broad acceptance of international commercial arbitration as a valid alternative to the judicial process and a high level of predictability for parties to international arbitration and those seeking to enforce international awards in Canada.

In late 2011, a working group of the Uniform Law Conference of Canada commenced a review of the existing model International Commercial Arbitration Act, with a view to developing reform recommendations for a new model statute. Catalysed by the 2006 Model Law amendments, the review process also sought to reflect changes to international arbitration law and practice in the past three decades and to enhance the uniformity and predictability with which international commercial arbitral awards may be enforced in Canada. In 2014 the conference approved the working group’s final report, which included a proposed new uniform International Commercial Arbitration Act for implementation throughout Canada.

Among other things, the new model statute adopts all of the 2006 Model Law amendments (except Option II for Article 7), including those that broaden the jurisdiction of courts and arbitral tribunals to order interim relief. The new statute also establishes a 10-year limitation period to commence proceedings seeking the recognition and enforcement in Canada of foreign international commercial arbitral awards. The new model statute will become law when enacted by the various Canadian federal, provincial and territorial legislatures, each of which is considering the proposed legislation.

Arbitration agreements

Validity

What are the validity requirements for an arbitration agreement?

The UNCITRAL Model Law specifically provides that an arbitration agreement must be in writing in the form of:

  • a document signed by the parties;
  • an exchange of letters or other means of communication which provide a record of an agreement; or
  • an exchange of pleadings in which the existence of an agreement is alleged and not denied.

Domestically, formal requirements for arbitration agreements are found in provincial legislation, which differ slightly from province to province. In most provinces, the agreement must be in writing but in Ontario this is not required. Like in the Model Law, it is possible for an arbitration agreement to be found in multiple written documents or through electronic communications. In Quebec, a written arbitration agreement may also be found if one party alleges such an agreement in writing and the alleged counterparty does not object. 

Enforcement of agreements

How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?

Canadian courts typically enforce arbitration agreements and are deferential to parties’ agreements to arbitrate. Unless it is clear that the arbitration agreement is void, inoperative or incapable of being performed, Canadian courts are likely to defer to the arbitrator the initial task of determining the existence and scope of the arbitration agreement, in accordance with the competence-competence principle.

Consolidation

Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?

Despite the potential desirability of consolidating resources and conducting appropriate multi-party or multi-contract arbitrations under one roof, consolidation can generally be ordered only with the consent of all parties (unless the applicable arbitral rules specifically provide for the tribunal to consolidate arbitrations absent specific consent). In some cases, tribunals and courts have found express or implied consent to order consolidation.

Choice of law

How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

Arbitral tribunals apply the law chosen by the parties. If the parties have not expressly selected an applicable law, then the proper law of the contract must be determined in light of their agreement, considered as a whole, and any surrounding circumstances. In general, the law with which the agreement appears to have the closest and most substantial connection ought to prevail.

Separability

Are there any provisions on the separability of arbitration agreements?

The Model Law provides that an arbitration clause which forms part of a contract must be treated as an agreement independent of the other terms of the contract, and a decision by the arbitral tribunal that the contract is null and void must not entail, by operation of law, the invalidity of the arbitration clause.

Domestic arbitration legislation in Ontario, Alberta, Manitoba, New Brunswick, Nova Scotia and Saskatchewan provides that if the arbitration agreement forms part of another agreement, it shall, for the purpose of a ruling on jurisdiction, be treated as an independent agreement which may survive even if the other (main) agreement is found to be invalid.

The Civil Code of Quebec provides that an arbitrator may conclude that the parties have a valid and enforceable arbitration agreement and at the same time find that the other terms of their agreement are void, even when their complete agreement is found in a single document. 

Multiparty agreements

Are multiparty agreements recognised?

Yes.

Arbitral tribunal

Criteria for arbitrators

Are there any restrictions?

The usual requirements of independence and impartiality apply. Otherwise, arbitrators are not required to be certified in any way and parties are free to agree the appointment of non-lawyers as arbitrators if they so wish. Parties sometimes specify required qualifications in their arbitration agreements. 

Contractual stipulations

What can be stipulated about the tribunal in the agreement?

Among other considerations, the number of arbitrators and tribunal members with particular expertise and knowledge can be stipulated.

Default requirements

Are there any default legal requirements as to the selection of a tribunal - for example, concerning the number of arbitrators or their characteristics?

Where parties have not agreed on the number of arbitrators, the UNCITRAL Model Law, as adopted in the relevant province’s international legislation, defaults to a panel of three arbitrators. Beyond the arbitrators’ independence and impartiality, the default provisions do not require any default qualifications or characteristics.

Domestic legislation across all provinces and territories – with the exception of Quebec – indicates that where an arbitration agreement does not specify the number of arbitrators who are to form the arbitral tribunal, it shall be composed of a single arbitrator. Under the Quebec Code of Civil Procedure, three arbitrators is the default.

Challenging the appointment of an arbitrator

Can the appointment of an arbitrator be challenged? Can an arbitrator be disqualified? What is the procedure for this?

The appointment of an arbitrator may be challenged, and an arbitrator disqualified, if circumstances give rise to justifiable doubts as to his or her independence or impartiality (ie, there is a reasonable apprehension of bias), or where the arbitrator does not possess the qualifications agreed by the parties in their agreement. Quebec’s Code of Civil Procedure provides further grounds under which the appointment of an arbitrator may be challenged. Generally, these must be for reasons of which a party was unaware at the time of the appointment.

Under the Model Law, the parties are free to agree on procedures to challenge the appointment of an arbitrator. If parties are unable to agree or have not provided for such in their agreement, the challenging party must send a written statement of the reasons for the challenge to the arbitral tribunal within 15 days of becoming aware of the circumstances.

Parties may agree to remove an arbitrator being challenged or the arbitrator may resign. In neither situation will the validity of the challenge be implied. If the arbitrator does not resign and is not removed by the parties, the arbitral tribunal (including the challenged arbitrator) will decide the issue and notify the parties of the decision.

To initiate a challenge under domestic legislation in Ontario, Alberta, Manitoba, New Brunswick, Nova Scotia and Saskatchewan, a party shall address and send to the arbitral tribunal a statement of the grounds for the challenge within 15 days of learning of them. Under the British Columbia International Commercial Arbitration Centre’s (BCICAC) Domestic Commercial Arbitration Rules (to which British Columbia’s domestic legislation currently defaults), a party has 14 days after either the arbitrator’s appointment or the day upon which the grounds for challenge become known to it to send a written statement to the arbitral tribunal outlining the grounds for challenge. Parties may also apply to court to remove an arbitrator due to bias through provincial legislation, in some cases including after the arbitral tribunal refuses a challenge.

Jurisdictional objections

How should an objection to jurisdiction be raised?

Under the Model Law, an objection to jurisdiction must be raised no later than the submission of a statement of defence.

If objections arise with respect to the tribunal’s jurisdiction throughout proceedings, the objecting party must raise these as soon as the matter alleged to be beyond the tribunal’s jurisdiction is raised during the arbitration.

Under domestic legislation in Ontario, Alberta, Manitoba, New Brunswick, Nova Scotia and Saskatchewan, a party that objects to the arbitral tribunal’s jurisdiction to conduct the arbitration may raise the objection no later than the beginning of the hearing or, if there is no hearing, no later than the first occasion on which the party submits a statement to the tribunal.

Replacement of an arbitrator

Why and how can an arbitrator be replaced?

In accordance with the Model Law, an arbitrator may be replaced where:

  • his or her qualifications are not satisfactory to the parties;
  • there are justifiable doubts as to his or her impartiality or independence;
  • he or she becomes unable to perform his or her functions; or
  • he or she fails to act without undue delay.

Under the domestic legislation of Ontario, Alberta, Manitoba, New Brunswick, Nova Scotia and Saskatchewan, the court may remove an arbitrator on a party’s application where the arbitrator becomes unable to perform his or her functions, commits a corrupt or fraudulent act, delays unduly in conducting the arbitration or does not conduct the arbitration in accordance with the legislation. Under British Columbia’s Arbitration Act, the court may remove an arbitrator who commits an “arbitral error” (which includes bias) or unduly delays in proceeding with the arbitration or in making an award. In Newfoundland and Labrador, Prince Edward Island, the Northwest Territories, the Yukon and Nunavut, the court may remove an arbitrator where he or she has misconducted himself or herself. 

Powers and obligations

What powers and obligations do arbitrators have?

Arbitrators in Canada are granted broad powers. By way of example, the BCICAC Rules indicate that an arbitral tribunal may:

  • order an adjournment;
  • make a partial award;
  • make interim orders or awards on any matter on which it may make a final award, including an order for costs, or for the protection and preservation of property that is the subject matter of the dispute;
  • order inspection of documents, exhibits or other property, including a view or physical inspection of property;
  • order the recording of any oral hearing;
  • extend or abridge a period of time fixed or determined by it, or as required by legislation;
  • empower one member of the tribunal to make interim and other orders, including settling matters at pre-hearing meetings that do not deal with the issues in dispute;
  • order any party to provide security for legal or other costs of any other party in any manner the arbitral tribunal sees fit;
  • order that any party or witness shall be examined on oath or affirmation and may, for that purpose, administer any necessary oath or affirmation;
  • make an award ordering specific performance, rectification, injunctions and other equitable remedies; and
  • make a final order in the event of the default of a party to the arbitration in complying with a direction of the arbitral tribunal or rule.

Liability of arbitrators

Are arbitrators immune from liability?

Arbitrators are generally immune from civil liability, except in instances of fraud or bad faith. Legislation in Canada provides no express immunity but most arbitral institutions rules do. For example, the BCICAC’s International Commercial Arbitration Rules provide that none of the BCICAC, its staff or the members of the arbitral tribunal is liable to any party for any act or omission in relation to arbitration under these rules unless the injury or loss was caused by deliberate and conscious wrongdoing. The extension of judicial immunity to arbitrators serves to further the goal of finality of arbitral awards, to encourage qualified individuals from serving as arbitrators and is justified by public policy. 

Communicating with the tribunal

How do the parties communicate with the tribunal?

Communications are in writing and oral (in person, telephone or video conference) throughout an arbitration proceeding.

Reaching decisions

Is unanimous agreement of the tribunal required? If there is disagreement, does the will of the majority suffice? What are the implications of this?

Generally, unless otherwise agreed by the parties in their agreement, any decision of an international arbitral tribunal with more than one arbitrator must be made by a majority of all its members.

Domestic legislation generally provides that if an arbitral tribunal is composed of more than one member, a decision of the majority will stand as the decision of the arbitral tribunal, unless there is no majority or unanimous decision, in which case the decision of the chairperson will govern. Note that where a matter is referred to three arbitrators, despite a majority judgment being decisive, parties have the right to a judgment made through the consultation and deliberation of all three arbitrators.

Arbitrability

Are there any disputes incapable of being referred to arbitration?

There are very few matters that cannot be arbitrated under the governing law of Canada.  Applicable provincial legislation provides guidance on whether particular matters are arbitrable. Criminal matters cannot be resolved by arbitration and, in most provinces, neither can family matters.

Can the arbitrability of a dispute be challenged?

Yes. Generally, the principle of competence-competence means that the arbitrator will have an initial opportunity to consider an objection that the subject matter of a dispute is not arbitrable, whether as a matter of public policy or otherwise. However, if the jurisdictional issue is raised on undisputed facts or is otherwise clear, the court may be called on to determine whether the dispute is arbitrable.

Jurisdiction and competence-competence

Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?

Yes, Canadian legislation provides, and courts respect, the competence-competence principle, which leaves initial determinations of jurisdiction and arbitrability to the arbitrator. Indeed, the fact that the New York Convention provides that the court may rule on whether an agreement is null and void, inoperative or incapable of being performed does not mean that it is required to do so before the arbitrator does.

The Supreme Court of Canada has held, consistent with Articles 8 and 16 of the Model Law, that a challenge to an arbitrator’s jurisdiction or the arbitrability of a dispute should first be addressed by the arbitrator before a court can consider the issue. Only where it is clear that the dispute is outside the terms of the arbitration agreement, a party is not a party to the arbitration agreement or the application is out of time can a court reach any final determination in respect of such matters.

However, in the consumer protection context, where the jurisdiction issue is solely a question of law, courts have allowed recourse to them in the first instance. The reason is based in public policy considerations relating to consumer protection and is designed to allow for an early, strictly legal determination of the arbitrator’s jurisdiction to potentially relieve parties from duplicate legal debates. 

Arbitral proceedings

Starting an arbitration proceeding

What is needed to commence arbitration?

The general UNCITRAL Model Law requirements apply in Canada – that is, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for referral of that dispute to arbitration is received by the respondent (or applicable institution), unless the parties have stipulated extra requirements in their arbitration agreement.

Domestic legislation in Ontario, Alberta, Manitoba, New Brunswick, Nova Scotia and Saskatchewan provides for arbitration to be commenced in any way recognised by law, including serving notice on the other parties.

Limitation periods

Are there any limitation periods for the commencement of arbitration?

Limitation periods track applicable limitation legislation in the provinces. For example, some domestic arbitration legislation expressly provides that the law with respect to limitation periods applies to arbitration as if the arbitration were an action and the matter in dispute in the arbitration were a cause of action. Generally, a legal proceeding, whether in court or through arbitration, must be commenced within two to six years from the date on which the cause of action was discovered, depending on the jurisdiction and cause of action.

Procedural rules

Are there any procedural rules that arbitrators must follow?

Arbitration legislation in Canada is not overly prescriptive as to procedure, other than general provisions relating to the availability of particular procedures and the court’s ability to assist arbitration proceedings. Generally, the legislation provides the parties and the tribunal with the power and flexibility to shape their own procedure; tribunals are required to conduct the arbitration in the manner they consider appropriate, subject to the parties’ rights of procedural fairness and goals of efficiency and reduced costs. Institutional rules are often more prescriptive and will be respected by the courts.

Dissenting arbitrators

Are dissenting opinions permitted under the law of your jurisdiction?

Apart from in Quebec, dissenting opinions are not addressed by Canadian arbitration legislation. As a result, except where parties agree to the contrary, the tribunal does not require specific legislative authority to release a dissent. The Quebec Code of Civil Procedure does not explicitly address dissenting opinions but indicates that each arbitrator may state, in the award, his or her conclusions and the reasons on which they are based. This suggests that even where the decision is not unanimous, dissenting arbitrators remain entitled to state, in the award, their reasoning.

Judicial assistance

Can local courts intervene in proceedings?

International arbitration legislation, as well as more recent domestic arbitration legislation, generally states expressly that judicial intervention in the arbitral process is to be limited and courts are not to intervene except to the extent provided for in the legislation. Generally, courts in Canada respect their limited role.

Can the local courts assist in choosing arbitrators?

Under the Model Law, if a party fails to appoint an arbitrator or co-arbitrators fail to appoint a chair within the required time periods, a party may request that the court make the appointment. In the case of a single arbitrator, if the parties cannot agree, a party may request that the court make the appointment.

Under domestic arbitration legislation in Ontario, Alberta, Manitoba, New Brunswick, Nova Scotia and Saskatchewan, the court may, with discretion, appoint the arbitral tribunal on a party’s application, if the arbitration agreement is silent on the appointment procedure or if the person with the power to appoint the arbitral tribunal has not done so within the time provided for in the agreement or after a party has given the person seven days’ notice to do so. Legislation in other provinces is similar.   

What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?

Default judgment is not permitted. Where a party fails to appear at a hearing or produce documentary evidence, the arbitral tribunal may proceed with the arbitration in a manner that it considers appropriate and make an award on the evidence before it. A failure by the respondent to communicate his or her statement of defence in accordance with the agreed procedure and legislation is not to be treated as an admission of the claimant’s allegations. 

Third parties

In what instances can third parties be bound by an arbitration agreement or award?

Canadian courts have recognised a number of international principles with regard to the binding of non-signatories, including:

  • where the contractual agreement between a party and the non-party incorporates the arbitration clause by reference;
  • where there is an agency relationship between a party and a non-party;
  • where the corporate veil is pierced as a result of a sufficiently close relationship between a parent and subsidiary to hold one corporation legally accountable for the other; or
  • by estoppel.

The overriding principle of consent to arbitrate is often considered by courts, including findings of implied consent of a non-signatory to be bound to an arbitration agreement.

Default language and seat

Unless agreed by the parties, what is the default language and location for arbitrations?

Language is addressed only by the international arbitration legislation, which provides that parties are free to agree on the language(s) to be used in the arbitral proceedings. If parties are unable to agree, the arbitral tribunal will determine the language(s) to be used having considered both the principle and practicality of a particular language. Typically, the arbitration should be held in the language in which the contract is written and in which the parties conduct their business relationship.

Under the British Columbia International Commercial Arbitration Centre’s International Commercial Arbitration Rules, the default location for arbitrations is Vancouver, British Columbia. Under Nova Scotia’s Commercial Arbitration Act, the default location is Halifax, unless otherwise agreed.

Gathering evidence

How is evidence obtained by the tribunal?

Canadian arbitration legislation generally affords arbitrators more flexible rules of evidence than those afforded to the courts. Arbitral tribunals have broad discretion to conduct the arbitration in a manner that they consider appropriate to avoid unnecessary delay or expense and to provide a fair and efficient means for the final resolution of the parties’ dispute. Flowing from that discretion is the power to

  • determine the admissibility, relevance, materiality and weight of any evidence;
  • exclude cumulative or irrelevant evidence; and
  • direct the parties to focus their evidence or argument on specific issues which may assist in the disposal of all or part of the dispute.

Domestic legislation applies in much the same manner, with slight variances across jurisdictions. 

What kinds of evidence are acceptable?

Parties tend to agree upon the scope of documentary evidence and the manner of its production prior to a hearing. The tribunal has the power to determine the admissibility, relevance, materiality and weight of evidence.

Generally, in lieu of direct examination, witness evidence is provided in the form of written statements and cross-examined under oath before the tribunal. Expert evidence may be adduced by the parties or in certain circumstances tribunals may retain experts. The evidence is generally provided in a written report followed by oral examinations in a hearing.

Confidentiality

Is confidentiality ensured?

Domestic and international legislation provides that unless otherwise agreed by parties or required by law, all communications are to remain private and confidential. However, the ability to maintain confidentiality is limited. For example, if court assistance is required or a party applies to set aside or enforce an award, the arbitration will generally become a matter of public record – including the award itself and likely many, if not all, of the pleadings. As a practical matter, information regarding the existence of the arbitration may also be inadvertently disclosed by persons involved in the proceedings but who would not normally be bound by any confidentiality agreement, including couriers and third-party witnesses.

Can information in arbitral proceedings be disclosed in subsequent proceedings?

Generally, information from arbitral proceedings should not be disclosed in a subsequent proceeding without the consent of the parties, but there are no explicit legislative provisions addressing this issue. Parties are encouraged to address this issue in their arbitration agreement or through the selection of arbitration rules. Parties must also be aware that the confidentiality of the arbitral proceedings may be lost through court interventions as court proceedings in Canada are public.

Ethical codes

What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

There is no simple answer to this question. In Canada, lawyers will generally be held to the standards applicable to them as set out in provincial and federal legislation and standards applicable to Canadian lawyers, regardless of where they are practising (eg, a Canadian lawyer appearing in the United States will likely be considered bound by Canadian ethical standards). Foreign lawyers acting as counsel and arbitrators in arbitrations seated in Canada would likewise likely be considered to be bound by the codes which apply to them in their home jurisdiction. As far as we know, a Canadian court or law society has not penalised a foreign lawyer appearing in an arbitration proceeding in Canada.

Costs

Estimation & allocation

How are the costs of arbitration proceedings estimated and allocated?

The general convention applied in Canada is that costs follow the event and can be full indemnity for reasonable legal fees, disbursements and arbitration costs. Tribunals generally have discretion to allocate costs, which is explicitly provided for in Canadian domestic arbitration legislation. The British Columbia international arbitration legislation also provides such discretion, although the international legislation of other provinces is less explicit.

With respect to costs claims, parties are generally invited by the tribunal to make submissions on costs, sometimes before the final award and sometimes after, which may include statements of costs incurred (legal fees and disbursements) and the parties’ views on aspects of their conduct during the proceedings which may be relevant to a fair allocation of costs (eg, if one party has been dilatory or abused the process in such a way as to increase the other parties’ costs).

Security for costs

Can the national court or tribunal order security for costs under the law in your jurisdiction?

The general convention applied in Canada is that costs follow the event and can be full indemnity for reasonable legal fees, disbursements and arbitration costs. Tribunals generally have discretion to allocate costs, which is explicitly provided for in Canadian domestic arbitration legislation. The British Columbia international arbitration legislation also provides such discretion, although the international legislation of other provinces is less explicit.

With respect to costs claims, parties are generally invited by the tribunal to make submissions on costs, sometimes before the final award and sometimes after, which may include statements of costs incurred (legal fees and disbursements) and the parties’ views on aspects of their conduct during the proceedings which may be relevant to a fair allocation of costs (eg, if one party has been dilatory or abused the process in such a way as to increase the other parties’ costs).

The award

Requirements

What legal requirements are there for recognition of an award? Must reasons be given for the award? Does the award need to be reviewed by any other body?

Recognition and enforcement follow the UNCITRAL Model Law and New York Convention (ie, the court must be provided with the arbitration agreement and the award).

The arbitral award must state the reasons on which it is based, unless the parties have agreed that no reasons are required. 

Timeframe for delivery

Are there any time limits on delivery of the award?

International arbitration legislation is silent on time limits for delivery of an award, although limits are set on corrections, interpretations and additions to the award. This legislation does contemplate (by providing for extensions of time) that parties may stipulate a time limit in their arbitration agreement.   

Domestic arbitration legislation limits the time allowed to render an award in one of two ways. First, a time limit may be provided for the duration of the arbitration process, where an award must be rendered within X months from the commencement of the arbitration. Alternatively, an award may be required within X months of the conclusion of the arbitration hearing.

The time given for delivery of an award varies between provinces. In Nova Scotia, domestic legislation provides that the arbitrator must render a decision within 10 days of the completion of the arbitration. Domestically, in British Columbia, the short rules provide for a decision to be rendered within 30 days of the closing of the hearings, whereas the standard rules allow for 60 days after the close of the hearings. Domestic legislation in Newfoundland and Labrador, the Northwest Territories, Prince Edward Island and the Yukon allow three months after entering on the reference to have the award rendered.

Remedies

Does the law impose limits on the available remedies? Are some remedies not enforceable by the court?

Legislation does not impose limitations on remedies and recently, in the enforcement context, the Court of Appeal for British Columbia held that an arbitral award creditor is entitled to the full panoply of enforcement remedies available to any creditor of a court judgment.

What interim measures are available? Will local courts issue interim measures pending constitution of the tribunal?

By the arbitral tribunal 

Once appointed, arbitrators may award interim relief without prior authorisation from a court. Under international arbitration legislation, arbitral tribunals are granted broad powers to issue interim measures. Unless otherwise agreed, the arbitral tribunal may, at the request of a party, order any party to take such interim protection measures that the tribunal considers necessary in respect of the subject matter of the dispute. The arbitral tribunal may also require any party to provide appropriate security in connection with such interim measures.

Domestic legislation in Ontario, Alberta, Manitoba, New Brunswick, Nova Scotia and Saskatchewan also provides broad powers to arbitral tribunals to make an order on a party’s request for the detention, preservation or inspection of property and documents which are the subject of the arbitration and may order a party to provide security in that connection. In British Columbia, unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take any interim measure of protection that the arbitral tribunal deems necessary with respect to the subject matter of the dispute and may order a party to provide security in connection with such a measure.

By the courts
Courts have wide discretion to grant interim relief orders and retain their inherent powers to grant provisional measures before, or during, arbitration on the application of one of the parties. Canadian courts respect the arbitral process and will not allow parties to disguise interference with the arbitration proceedings as an application for urgent or provisional measures. That said, judicial assistance may be sought by a party and will not be considered inconsistent with its right to arbitrate its dispute (ie, a party may go to court for interim measures at any point before, during or after arbitration proceedings). Canada’s commitment to arbitration suggests that where required, a court should make an interim order preserving the parties’ position until the matter can be brought before the arbitrator as per the parties’ agreement. 

Interest

Can interest be awarded?

International arbitration legislation in Canada does not provide explicitly for the award of interest, except in British Columbia. Domestic legislation in some provinces provides that the arbitral tribunal has the same power with respect to interest as the court has under provincial court order interest legislation.

Parties may expressly provide for the power to award interest in their agreement or the necessity to do so may arise as part of an arbitrator’s obligation to apply the general law. Where an arbitration agreement is broad enough to encompass all claims and disputes between parties, it has been recognised that arbitrators have the power to award interest.

At what rate?

Generally, if there is no contractually agreed rate, the rate of the governing substantive law of the parties’ agreement is most likely to prevail, although in some circumstances, it may be argued that the law of the seat or the place of enforcement should apply.   

Finality

Is the award final and binding?

Yes, awards are final and binding.

What if there are any mistakes?

Mistakes can be corrected consistently with the Model Law (ie, within 30 days of the parties’ receipt of the award, unless the parties have agreed on an alternative period), including any clerical, typographical or computational errors. Reconsideration of substantive matters is not permitted.

Can the parties exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

No. The provisions of the Model Law and the Code of Civil Procedure setting out the grounds for challenging an arbitral award are generally considered to be peremptory, although there are provincial variations.

Appeal

What is the procedure for challenging awards?

Parties must follow the rules of court of the particular province in applying to challenge an award (eg, in British Columbia by petition, which requires providing the award, the arbitration agreement and the alleged grounds to challenge or set aside the award). 

On what grounds can parties appeal an award?

For international awards, the Model Law’s limited grounds apply. For the most part, international arbitral awards cannot be appealed.

Provincial legislation provides similarly limited rights to appeal an award. Generally, an appeal can be brought only on a question of law, not a question of fact. In some provinces, there is no right of appeal unless all parties have agreed to such a right or consented to an appeal. In other provinces, a right of appeal may be subject to obtaining leave to appeal from a judge or superior court of the province. 

Enforcement

What steps can be taken to enforce the award if there is a failure to comply?

The international legislation provides for Model Law and New York Convention recognition and enforcement rights. Creditors of international arbitral awards generally have access to the same enforcement remedies available to domestic litigants.

Can awards be enforced in local courts?

Yes, the applicable legislation identifies which level of court – usually the superior court in the province – has jurisdiction. 

How enforceable is the award internationally?

Canadian awards are enforceable in the same way as any other foreign award subject to the New York Convention. To the extent that a foreign court may be in a jurisdiction which has not signed the New York Convention – of which there are fewer and fewer – Canadian courts have a good reputation internationally for attracting the requisite comity (eg, an independent judiciary operating in an environment considered among the most limited for corruption in the world).

To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

This is assessed on a case-by-case basis and Canadian courts have held both against and in favour of state immunity, depending on the circumstances. 

Are there any other bases on which an award may be challenged, and if so, by what?

No, Canada follows the limited grounds set out in the Model Law.  

How enforceable are foreign arbitral awards in your jurisdiction?

A party with a foreign arbitral award should expect its award to be enforced, unless the extremely limited grounds to refuse enforcement apply. Canadian courts are highly deferential to arbitration and uphold the principles set out in the New York Convention, of which Canada is a signatory.

Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

Courts will approach this issue on a case-by-case basis. Courts in the past have recognised the permissive nature of this issue under the New York Convention and, in certain circumstances, may enforce an award that has been set aside at the seat. However, Canadian courts will certainly consider the status of an award at the seat, including whether a challenge to it has not yet been determined.

Third-party funding

Rules and restrictions

Are there rules or restrictions on third-party funders?

No, many cases are funded. However, there is no rule or court decision which has definitively confirmed that there are no restrictions and there remain potential lingering questions relating to whether such agreements may be considered champertous. For example, presented with a third-party funding situation, a court may look at the terms of the agreement to confirm that it is not champertous in nature. In the context of consumer protection class action cases, an Ontario court has suggested that the existence of funding may need to be disclosed and subject to certain conditions.

Class-action or group arbitration

Concept

Is there a concept in your jurisdiction providing for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated?

Several Canadian provinces have amended their consumer protection statutes to clarify in what circumstances consumer disputes (including class actions) may be arbitrated. The Supreme Court of Canada also held in *Seidel v TELUS Communications Inc* (2011 SCC 11) that an arbitration agreement may not oust a consumer’s statutory right to seek to represent a class of persons in a class proceeding.

Hot topics

Emerging trends

Are there any hot topics or trends emerging in arbitration in your jurisdiction?

The limits of third-party funding is an emerging issue in Canada. In addition, the availability of interim remedies, such as injunctive relief, and the ability of arbitral creditors to utilise pre-judgment execution remedies, such as Mareva injunctions, also continue to be hot topics.

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