Canada is a federal state consisting of 10 provinces and three territories. Under the Canadian Constitution, justice falls under provincial jurisdiction. Accordingly, each province has enacted its own legislation governing the resolution of disputes through arbitration in Canada. In addition, the federal government has enacted legislation that governs arbitrations in Canada involving a department of the federal government, the Crown corporation, or addresses maritime or admiralty law. Each province has enacted two arbitration statutes: one regulates the regulation of international commercial arbitrations in Canada and the other regulates other arbitrations. Virtually all provinces (except Quebec) have incorporated the UNCITRAL Model Law into their statutes.
There are a number of local arbitration bodies, including ADR Chambers International (in Ontario), the ADR Institute of Canada (in Ontario), the British Columbia International Commercial Arbitration Centre and the Canadian Centre for Commercial Arbitration (in Quebec).
Parties may also use the services of international arbitration institutions such as the ICC, ICDR or LCIA to settle international commercial claims through arbitration in Canada.
Arbitration Agreements.
The Ontario and British Columbia statutes that govern international arbitration allow parties to enter into arbitration agreements orally, but the content of the agreement must be in writing. The parties may enter into an arbitration agreement in Canada before or after a dispute arises.
Scope and Arbitrability
The International Arbitration Charter applies only to “commercial” arbitrations. More often, arbitration applies to disputes arising from a specific agreement. The availability of arbitration may be limited by law. The Supreme Court of Canada has stated that courts should enforce arbitration agreements in the absence of legislative intervention.
Competence of the tribunal
If you have decided to commence arbitration in Canada, note that the laws of British Columbia and Ontario provide that the arbitral tribunal is competent to determine its own jurisdiction, including provisions regarding the existence or validity of the arbitration agreement. The arbitral tribunal’s decision regarding its jurisdiction can be appealed within 30 days.
Consolidation of arbitration proceedings
For those planning to initiate proceedings through arbitration in Ontario or British Columbia, it is helpful to know that UNCITRAL does not provide for consolidation of arbitration proceedings. However, the Ontario and British Columbia statutes do provide that the court may order consolidation if all parties agree. The statutes also provide that the parties may agree to consolidate arbitration proceedings without a court order.
Arbitration Procedure
Arbitration proceedings shall be deemed to commence on the date the respondent receives a request to refer the dispute to arbitration. The statute imposes no special requirements as to the form of the request or the manner of its delivery. If the arbitration agreement provides that the initial request must take a particular form or be delivered in a particular manner, certain procedural steps must be followed in order to commence arbitration in British Columbia or Ontario.
Following the requirements set out in the arbitration agreement is particularly important in the context of contractual limitation periods (such as the 12-month period in the above case) as well as statutory limitation periods. Canada generally has fairly short statutes of limitations for the proper commencement of claims as compared to other countries (e.g., the general statute of limitations in Ontario and British Columbia is two years from the time the decision to commence a Canadian claim was made). If there are contractual preconditions to initiating arbitration (e.g., staged procedures for resolving arbitration disputes in Canadian provinces that require negotiation or mediation), the statute of limitations may be suspended until those preconditions are met.
Procedural rules and evidence
The choice of procedural rules is left to the discretion of the parties. For example, an arbitration agreement may provide that the governing rules will be those of a particular arbitral institution, such as the rules of the ICC, ICDR, ADR Canada, Canadian Commercial Arbitration Centre, British Columbia International Commercial Arbitration Centre or LCIA. When resolving commercial claims in Canada, the arbitration agreement may establish its own special procedural rules, with varying degrees of detail, as the parties decide.