CANADA Law and Practice Contributed by: Craig A B Ferris, Michael J Donaldson and Scott Lucyk, Lawson Lundell LLP
With respect to non-parties, the court may: • issue summons for witnesses located in Canada; or • request the assistance of foreign courts for wit - nesses 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. 9. Confidentiality 9.1 Extent of Confidentiality 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). Parties are free to agree on confidentiality require - ments. Even if an arbitration agreement is silent on confidentiality, the governing international arbitration institutional rules may require it. For example, the VanIAC Rules stipulate that, subject to certain exceptions, the parties must keep the fol - lowing confidential: • all awards arising from the proceedings; • all evidence and materials created for the purpose of the arbitration; and • all other non-public documents produced by another party in the proceeding not otherwise in the public domain.
However, if the parties to an arbitration decide to appeal an arbitral award or otherwise apply to the court for relief, the record of arbitration proceedings will no longer be private and confidential ( 2249492 Ontario Inc v Donato , 2017 ONSC 4975). British Columbia’s International Commercial Arbitra - tion Act expressly provides in Section 36.01 (added in 2018) that, unless otherwise agreed by the parties, the parties and the arbitral tribunal must not disclose arbitration proceedings (or their component parts) or the award. An arbitral award is subject to the legal requirements set out in Article 31 of the Model Law. These include that the award must: • be in writing and signed by the arbitrator (or major - ity of an arbitral panel); • state the date and place of the arbitration; and • state the reasons upon which it is based, unless the parties agree otherwise. There is no time limit for the delivery of the award under the Model Law. These requirements may be contained in arbitral rules. For example, the ICDR Rules specify that the final award must be made no later than 60 days after the closing of the hearing (unless otherwise agreed by the parties, specified by law or determined by the ICDR Administrator). Article 35 (a) of the VanIAC Rules specifies a 90-day time limit (unless otherwise agreed by the parties or directed by the arbitral tribunal). 10. The Award 10.1 Legal Requirements The arbitration agreement itself and the institutional rules adopted by the parties may contain additional
requirements for the award. 10.2 Types of Remedies
No limits are imposed on the types of remedies that an arbitral tribunal may award under the Model Law or international commercial arbitration statutes. How - ever, the parties may limit the types of remedies that can be awarded in the arbitration agreement.
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