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Ontario|Arbitration / MediationArbitration 500 The arbitration process: Rules, procedures and protocol Under applicable provincial or federal law, the parties to an arbitration agreement usually have some latitude as to the rules, procedures and protocol that will govern the arbitration.
In the provincial context, if the parties agree, among other things, they have the option of:
1. Introducing elements of informality;
2. Simplifying the procedure so that it is far removed from the requirements of the courtroom setting;
3. Permitting the matter to be presented through written arguments and documents without the attendance of witnesses; and
4. Ensuring that the arbitrator's award or decision is final and that there is no right to appeal to the courts in any circumstances.
Alternatively, the parties may, for example, agree that:
1. The arbitration procedure will be more stringent than that found in the public court system;
2. A panel of arbitrators and not just a single arbitrator will hear the case at first instance and render a decision; and
3. Either party, as of right, may appeal the arbitrator's or panel's award on any issue of fact or law or mixed fact and law.
In many instances, the provisions of a provincial arbitration statute can be varied or excluded if the disputing parties are in agreement. However, if there is no agreement varying or excluding the provincial statute then the provincial law will apply.
- Conduct of the Arbitrator
Under Ontario's Arbitration Act, 1991, an arbitration must have the elements of equality and fairness. The parties cannot agree to avoid the statutory requirement that they be treated equally and fairly and that each party be given an opportunity to present a case and to respond to the other partie's case.
The Ontario Arbitration Act permits the arbitral tribunal, which is the arbitrator or the panel of arbitrators, to determine the procedure to be followed. For example, unless previously agreed to by the parties, the arbitral tribunal may place a time limit on the testimony of witnesses or limit the number of witnesses for each side.
In addition, among other things, the arbitrator or panel of arbitrators can do the following nine things:
1. Determine the time, date and place of arbitration;
2. Determine the meeting place for hearing witnesses, experts or parties, or inspecting documents or property;
3. May require that the parties submit their statements within a specified period, or may permit the parties to submit their statements orally;
4. May conduct the arbitration on the basis of documents;
5. May appoint an expert to report on specific issues;
6. May issue a notice requiring a person to attend and give evidence at the arbitration;
7. May, in deciding the dispute, take into account any applicable usages of trade;
8. May award costs of an arbitration which include the parties' legal expenses and arbitration expenses; and
9. May award prejudgement and post judgement interest.
For legal advice with respect to an arbitration, you should consult a lawyer. For more information about arbitration, refer to other sections of Legal Line .
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