CANADA Law and Practice Contributed by: Craig A B Ferris, Michael J Donaldson and Scott Lucyk, Lawson Lundell LLP
8. Evidence 8.1 Collection and Submission of Evidence Parties are free to determine the procedure for the col - lection and submission of evidence; failing which, the arbitral tribunal may determine the procedure. Where the parties have not agreed on a proce - dure regarding evidence, this issue will typically be addressed at 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. Evidence-taking practices are often adapted based on counsel’s experience and the specifics of the dispute. Pre-hearing oral discovery (a typical feature of court litigation in Canada) is, however, increasingly uncom - mon 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.
There are no other provincial laws or rules governing international arbitration procedure. However, Sec - tion 14 of New Brunswick’s International Commercial Arbitration Act, RSNB 2011, c 176, provides that the province’s Rules of Court, as enacted, apply (except where they may conflict with the provisions of the Act). 7.2 Procedural Steps There are no particular procedural steps expressly required to be followed under the Model Law or the provincial international commercial arbitration stat - utes. However, the institutional rules (VanIAC Rules and ICDR Rules) contain mandatory procedural steps. 7.3 Powers and Duties of Arbitrators An arbitrator must be impartial and independent and have the qualifications agreed to by the parties. These duties are contemplated in Article 12 of the Model Law and in the international commercial arbitration stat - utes (see, for example, Section 12 (3) of the BC Act). The institutional rules also impose on an arbitrator the duty to be impartial and independent and to have 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 permits a party to be repre - sented by any person of their choice, including a legal practitioner from another state.
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