CANADA Law and Practice Contributed by: Craig A.B. Ferris KC, Michael J. Donaldson KC and Scott Lucyk, Lawson Lundell LLP
3. The Arbitration Agreement 3.1 Enforceability
have issued over 200 written decisions under the Model Law.
Arbitration agreements are governed by statute. With the exceptions of Ontario, British Columbia and Que - bec, the requirements for an international arbitration agreement are those contained in the 1985 version of the Model Law. Ontario and British Columbia have adopted the requirements set out in the 2006 version of the Model Law. All the international arbitration statutes in Canada require that an arbitration agreement is in writing. 3.2 Arbitrability With some limited exceptions, all commercial disputes can be resolved by arbitration, provided that the par - ties agreed to do so. Legislatures and courts have decided, however, that certain matters are not arbitrable in Canada. These include: • certain types of disputes under British Columbia’s Business Practices and Consumer Protection Act ( Seidel v Telus Communications Inc , 2011 SCC 15), Ontario’s Consumer Protection Act, 2002, SO 2002, c 30, Sch A, s 7 (2), and Quebec’s Consumer Protection Act, CQLR, c P-401, s 11; and • disputes over the status and capacity of persons, family matters or other matters of public policy (Quebec Civil Code, CQLR c CCQ-1991, s 2639). 3.3 National Courts’ Approach Generally speaking, Canadian courts take a pro- enforcement stance with respect to arbitration agree - ments. Consistent with the Model Law, Canadian courts will typically enforce an arbitration agreement unless it is void, inoperative, or incapable of being enforced ( Uber Technologies v Heller , 2020 SCC 16). 3.4 Validity In accordance with Section 16 (2) of the Model Law, Canadian courts enforce the rule of separability and treat an arbitration clause as an agreement independ -
2. Governing Legislation 2.1 Governing Law
Each of the provinces and territories, except Quebec, has enacted an International Commercial Arbitration Act based on the Model Law. Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland, Yukon, Nunavut and Northwest Territories (pursuant to Nunavut’s legislation) have adopted the 1985 ver - sion of the Model Law, while British Columbia and Ontario adopted the Model Law with amendments as adopted in 2006. British Columbia has enacted a reworked version of the Model Law, while the other provinces and terri - tories attach it as a schedule with small variations to their International Commercial Arbitration Act. In Quebec, the Model Law has not been incorporated. Arbitration in the province is governed by the Civil Code of Quebec and the Code of Civil Procedure, which are generally consistent with the Model Law. The Commercial Arbitration Act, RSC 1985, c 17 (2nd Supplement) is a federal statute based on the 1985 version of the Model Law. This statute applies only: (i) where at least one of the parties to the arbitration is the Crown, a federal departmental corporation or a Crown corporation; or (ii) in relation to a maritime or admiralty matter. 2.2 Changes to National Law There have been no significant changes to the interna - tional arbitration statutes in Canada in the past year. On 1 September 2020, a new domestic Arbitration Act, SBC 2020, c 2, came into force in British Colum - bia.
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