CANADA Law and Practice Contributed by: Craig Ferris, Marko Vesely, Shannon Hayes and Catherine Whitehead, Lawson Lundell LLP
13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
13.4 Procedure for Enforcing Domestic and Foreign Arbitration The statutory regimes provide for the procedures for enforcing arbitration awards issued within the prov- ince, another province or territory of Canada or inter- nationally. An application is typically made to the court providing a copy of the arbitral award. If there are no grounds to set the arbitral award aside and the time limits for an appeal of the award or appli- cation to set aside have expired, the court will issue a judgment enforcing the award. 14. Outlook 14.1 Proposals for Dispute Resolution Reform The traditional trial process is resource- and time- intensive and expensive. Dispute resolution reform in Canada has focused on means to resolve claims without a full trial. Over the last few years, many provinces have imple- mented rules to provide for modified or hybrid trials that embrace procedural concepts from arbitration. As discussed in the Trends and Development chap- ter , Ontario is considering adopting several arbitration procedures into its court rules of procedure. Case law has also worked to promote the determination of jus- tice in ways that do not require a full trial, such as the promotion of summary judgment. While Canadian courts are attempting to create more timely and less expensive access to justice through modified processes, private arbitration continues to increase in use for those same reasons. 14.2 Growth Areas The following areas appear to be future battlegrounds in commercial disputes: claims associated with inter- national trade and tariffs, regulatory proceedings relat- ed to compliance with AI governance regimes and securities laws involving AI-washing and ESG mat- ters, IP disputes related to AI training data and class actions related to consumer protection, privacy and data breaches.
The provinces and territories have statutory schemes for the conduct, recognition and enforcement of domestic and international arbitration. In 1986, Can- ada became the first jurisdiction to adopt the UNCI- TRAL Model Law on International Commercial Arbitra- tion (the “Model Law”). The statutory regimes largely follow or are consistent with the Model Law. 13.2 Subject Matters Not Referred to Arbitration The subject matters that may be arbitrated are largely governed by the arbitration agreement between the parties, with some limited exceptions for consumer issues. Arbitration legislation in Canada does not pro- vide for class action arbitration or group arbitration. 13.3 Circumstances to Challenge an Arbitral Award The statutory regimes allow a party to the arbitration to apply to the courts to have the award set aside on specific grounds. However, an application to set aside an arbitral award is not the same as an “appeal” of the judgment in a commercial case. The Model Law limits the grounds on which an arbitral award may be set aside. An arbitral award may be set aside if the applying party proves: • contractual incapacity; • invalidity under the law to which the parties have subjected it; • lack of notice of the arbitral appointment or pro- ceedings, or inability to present the party’s case; • jurisdictional grounds (ie, the award deals with or decides matters beyond the scope of the submis- sion to arbitration); • the composition of the arbitral tribunal or procedure was not in accordance with the parties’ agreement; • the subject matter of the dispute is not capable of settlement by arbitration under the relevant law; or • the arbitral award conflicts with public policy. Parties to an arbitration cannot agree to exclude or expand the scope of the application to set aside the award.
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