CANADA Law and Practice Contributed by: Craig A.B. Ferris KC, Michael J. Donaldson KC and Scott Lucyk, Lawson Lundell LLP
those qualifications agreed to by the parties: see VanIAC Rules, Article 12, and ICDR Rules, Article 14. 7.4 Legal Representatives The Canadian legal profession is self-regulated, and legal practitioners must meet the qualifications set by the professional regulators of the province in which they practise. The Model Law is silent regarding the qualifications or requirements of legal representatives appearing as counsel on international commercial arbitrations governed by it. Unique to British Columbia, the International Com - mercial Arbitration Act contemplates that a party may be represented by any person of their choice, includ - ing a legal practitioner from another state. 8. Evidence 8.1 Collection and Submission of Evidence Parties are free to determine the procedure applicable to the collection and submission of evidence, failing which the arbitral tribunal can determine the proce - dure. Where the parties have not agreed on a procedure with respect to evidence, this issue will typically be addressed in a pre-hearing conference. Increasingly, the IBA Rules on the Taking of Evidence are often referenced or considered in establishing the specific procedures to be used. Consistent with international practice, documents are often attached to pleadings, with the parties exchang - ing requests for the relevant documents using a Red - fern schedule. Witnesses’ evidence is commonly sub - mitted in detailed written statements with questioning by opposing counsel only at the hearing stage. Expert evidence is typically exchanged prior to any hearing on the merits. Practices for evidence taking are often adapted based on the experience of counsel and the specifics of the dispute. Pre-hearing oral discovery (a typical feature
of court litigation in Canada) is, however, increasingly uncommon in international arbitration. 8.2 Rules of Evidence As set out in Article 19 (2) of the Model Law, an arbitral tribunal may determine the admissibility, relevance, materiality and weight of any evidence. The statutory rules of evidence in the federal and provincial Evi - dence Acts do not apply to international arbitration seated in Canada. 8.3 Powers of Compulsion Under the Model Law, an arbitral tribunal, or a par - ty with the tribunal’s consent, can seek the court’s assistance to compel evidence. The courts can com - pel witnesses to attend for questioning or to produce documents. With respect to non-parties, the court may (i) issue summons for witnesses located in Canada; or (ii) request the assistance of foreign courts for witnesses outside Canada. Typically, the courts will assist evidence-taking for arbitration proceedings, provided that the request is consistent with local evidentiary rules. The Model Law does not address confidentiality. Unlike arbitration legislation that adopts the Model Law directly, British Columbia’s International Com - mercial Arbitration Act was amended in 2018 to pro - vide that, unless otherwise agreed, the parties and tribunal must not disclose: • non-public proceedings, evidence, documents and information in connection with the arbitration; or • an arbitral award. In Canada, the “open court” principle generally does not apply to arbitration proceedings ( Fontaine v Can- ada (Attorney General) , 2014 ONSC 4585, var’d 2016 ONCA 241, aff’d 2017 SCC 47). 9. Confidentiality 9.1 Extent of Confidentiality
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