(These Ad Hoc Arbitration Rules are based on the National Arbitration Rules of the ADR Institute of Canada and have been adapted and modified to apply to an ad hoc arbitration (i.e. an arbitration administered by the arbitral tribunal))

 

1. Purpose

The purpose of the rules is to enable the parties to a dispute to achieve a just, speedy and cost effective determination of matters in dispute, taking into account the values which distinguish arbitration from litigation.

2. Interpretation

In the rules:
“Act” means any applicable arbitration legislation of the place of arbitration unless otherwise agreed by the parties.
“Arbitrator” means a person appointed to serve as an arbitrator of a dispute pursuant to the Rules
"Chair" means the person elected or appointed to chair the Tribunal.
"Commencement date" means the date the arbitration is deemed to commence under Rule13.
“Court” means a court of competent jurisdiction.
“Rules” mean these Ad Hoc Arbitration Rules.
“Statement of Claim” means the Statement of Claim referred to in Rule 25.
“Statement of Defence” means the Statement of Defence referred to in Rule 25.
“Tribunal” means either a sole Arbitrator or a panel of Arbitrators, as the case may be, appointed to serve as the arbitrator or arbitrators of a dispute pursuant to these Rules.

3. Application

(a) The Rules shall apply where the parties have agreed that they shall apply. To the extent that the Rules conflict with the Act, the provisions of the Rules shall apply except to the extent that the parties may not lawfully contract out of the provision of the Act. The parties may agree in writing to vary or exclude any of these Rules except Rules 10, 15(b), 22(b), 36, 37, and 44.
(b) A failure to comply with the Rules is an irregularity and does not render an arbitration or a step, document or award in the arbitration a nullity.

4. Time

(a) In the Rules, where the time for doing an act falls or expires on a holiday, the time is extended to the next day that is not a holiday. In the calculation of time, the first day shall be excluded and the last day included.
(b) The parties may modify any period of time by agreement.

5. Ad Hoc Arbitration

By agreeing to the Rules, the parties agree that the arbitration shall be an ad hoc arbitration, administered by the Tribunal.

6. Delivery of Documents

Any document required by the Rules to be delivered may be delivered either by personal delivery, mail, e-mail or facsimile. If delivered by personal delivery, delivery shall be deemed to have been effected on the day of such delivery to a party at its regular place of business or mailing address or that of its legal counsel where applicable. If delivered by mail, except for confirmation copies of documents delivered by e-mail or facsimile, delivery shall be deemed to have been effected 2 days following the date of mailing. If by e-mail or facsimile, delivery shall be deemed to have been effected when sent. A confirmation copy of any such document shall be delivered by mail in the case of any electronic transmission.

7. Communications with Tribunal

No party or person acting on behalf of a party shall have a communication with the Tribunal in the absence of the other party concerning the substance of the dispute or any contentious matter relating to the proceeding.

8. Communications between Parties

Parties to an arbitration under the Rules may deliver any written communications required or permitted under the Rules by personal delivery, by mail, e-mail or by facsimile to a party at its regular place of business or mailing address. A confirmation copy of such communications shall be sent by mail in the case of any electronic transmission.

9. Address for Delivery of Documents

The parties shall provide to one another and to the Tribunal a full mailing address, telephone number, facsimile number and e-mail address, as may be applicable.

10. Waiver of Right to Object

A party who knows that any provision of, or requirement under, the Rules has not been complied with and yet proceeds with the arbitration without promptly stating an objection shall, unless the Tribunal otherwise orders, be deemed to have waived its right to object.

11. Arbitration under Agreement

Where a dispute falls under an arbitration clause or agreement, a party, as claimant, may submit that dispute to arbitration by delivering a written Notice of Request to Arbitrate to the respondent(s) at the address specified by the respondent(s) under the agreement or the last known mailing address or place of business of the respondent(s). The Notice of Request to Arbitrate shall contain:
(a) the names, place of business or mailing addresses, telephone numbers, fax numbers and e-mail addresses of the parties to the dispute, if known;
(b) a concise statement of the matters in dispute or a Statement of Claim;
(c) a request that the described dispute be referred to arbitration;
(d) the remedy sought;
(e) the number and names of Arbitrators agreed upon, if any;
(f) the required qualifications of the Arbitrators, as agreed by the parties, if any; and
(g) any variation of the Rules which has been agreed in writing.
Appended to the Notice of Request to Arbitrate shall be a copy of the arbitration clause or agreement relied upon and a copy of the contract, if any, in relation to which the dispute has arisen.

12. Arbitration by Submission

(a) Parties to a dispute may submit that dispute to arbitration by filing a Notice of Submission to Arbitration with the Tribunal, if it has been appointed. The Notice of Submission to Arbitration shall contain the information described in Rule 11 (a) to 11(g).
(b) The Notice of Submission to Arbitration shall be signed by the parties to the dispute. Appended to the Notice of Submission to Arbitration shall be a copy of the contract, if any, in relation to which the dispute has arisen.

13. Commencement Date

The arbitration is deemed to have commenced when a Notice of Request to Arbitrate has been served on the respondent(s) or a Notice of Submission to Arbitration has been filed with the Tribunal. The Tribunal shall notify the parties when an arbitration has been commenced and shall deliver to them a Notice of Commencement of Arbitration.

14. Appointment of Tribunal

(a) If the parties have not agreed on the number of arbitrators within 10 days after the arbitration has commenced, the dispute shall be determine by a single arbitrator;
(b) Where a single arbitrator is to be appointed, if the parties cannot agree on the single Arbitrator within 14 days after the date the arbitration is commenced, either party may then request the Court to make such appointment.
(c) Where the parties have agreed to appoint three Arbitrators:

      (i) unless otherwise agreed by the parties, each party shall appoint one Arbitrator and the two Arbitrators shall jointly appoint the third Arbitrator who shall act as the Chair of the Tribunal;

 

      (ii) if a party fails to make a required appointment within the time agreed upon between the parties or, if no time is agreed, 21 days from the commencement of the arbitration, then a party may request the Court to make the required appointment;

 

    (iii) if the parties or Arbitrators appointed by the parties, as the case may be, are unable to agree on the appointment of a third Arbitrator within the time agreed by the parties or, if no time is agreed within 30 days from the commencement of the arbitration then a party may request the Court to make the required appointment.

 

15. Independence and Impartiality

(a) Unless otherwise agreed by the parties an Arbitrator shall be and remain at all times wholly independent.
(b) An arbitrator shall be and remain wholly impartial and shall not act as an advocate for any party to the arbitration.
(c) Every person must, before accepting an appointment as Arbitrator, sign and deliver to the parties a statement declaring that he or she knows of no circumstances likely to give rise to justifiable doubts as to his or her independence or impartiality and that he or she will disclose any such circumstances to the parties if they should arise after that time and before the arbitration is concluded.

16. Substitution

(a) If an Arbitrator refuses to act, is incapable of acting, withdraws from office, is removed from office by order of the court, or dies, the office becomes vacant. A substitute Arbitrator shall be appointed according to the provisions of the Rules, or the agreement of the parties, that were applicable to the appointment of the Arbitrator being replaced.
(b) Where a single Arbitrator or chair is replaced, any hearings previously held shall be repeated. Where any other Arbitrator is replaced, any hearings previously held may be repeated at the discretion of the Arbitrators.

17 Challenges

(a) An Arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to his or her independence or impartiality, or if he or she does not possess the qualifications agreed upon by the parties.
(b) A party who intends to challenge an Arbitrator shall, within 7 days after becoming aware of the appointment, or after becoming aware of any circumstances referred to in this Rule, send a written statement of the challenge and the reasons for the challenge to the Tribunal. If the challenged Arbitrator withdraws or the other party agrees to the challenge, the mandate of the Arbitrator terminates.
(c) In the case of an arbitration with a single Arbitrator, if the Arbitrator challenged does not withdraw and the other party does not agree to the challenge, the single Arbitrator shall decide on the challenge. If there is a three-person panel the chair, if he or she is not challenged, shall decide the challenge. If the chair is challenged, all the Arbitrators may decide the challenge.

18. Representation

Where a party intends to be represented or assisted by a lawyer, that party shall, in writing, advise the other party and the Tribunal of the lawyer’s name, address, telephone number, facsimile number, e-mail address and the capacity in which he or she is acting at least 5 days before any scheduled hearing or meeting.

19. Place of Arbitration

The parties may agree in writing on the place of arbitration. If no place is agreed upon, the place of arbitration shall be at the discretion of the Tribunal. The Tribunal may meet at any other place it considers convenient or necessary for consultation, to hear witnesses, experts or the parties or for the inspection of documents, goods, or other property. Part or all of the arbitration may be conducted by telephone, e-mail, internet or electronic communication if agreed by the parties.

20. Language of Arbitration

The parties may agree, in writing, on the language of the arbitration. In default of any such agreement the Tribunal may specify the language of the arbitration.

21. Pre-arbitration Meeting

(a) Within 14 days of its appointment, the Tribunal shall convene a pre-arbitration meeting, unless the parties deliver to the Tribunal a notice, in writing, that they do not wish a pre- arbitration meeting.
(b) At the pre-arbitration meeting the parties shall:

      (i) identify the issues in dispute;

 

      (ii) set the procedure to be followed in the arbitration; and

 

      (iii) establish time periods for taking steps to deal with any matter that will assist the parties to settle their differences or to assist the arbitration to proceed in an efficient and expeditious manner.

 

(c) The pre-arbitration meeting may take place by conference telephone call, video conferencing or other electronic means.
(d) The Tribunal shall record any agreements or orders made at the pre-arbitration meeting and shall, within 7 days of that meeting, send a written record of such agreements or Orders to each of the parties.

22. Conduct of the Arbitration

(a) Subject to these Rules, the Tribunal may conduct the arbitration in the manner it considers appropriate.
(b) Each party shall be treated fairly and shall be given full opportunity to present its case.
(c) The Tribunal shall strive to achieve a just, speedy and cost effective determination of every proceeding on its merits, taking into account Rule 1.
(d) A transcript or videotape of the proceedings shall be prepared if requested by either party in writing at least 5 days prior to the commencement of the hearing. The expense of such transcript or videotape shall be at the expense of the party requesting it. If a transcript or video tape has been requested by a party pursuant to this Rule, the other party and the Tribunal shall be entitled to obtain a copy of the transcript or videotape upon payment of the costs of reproduction of the transcript or videotape.

23. Jurisdiction

(a) The Tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,

      (i) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract, and

 

      (ii) a decision by the Tribunal that the contract is null and void shall not entail the invalidity of the arbitration clause unless specifically found by the Tribunal.

 

(b) A party is not precluded from raising a jurisdictional issue by the fact that it has appointed, or participated in the appointment of, an Arbitrator.

24. General Powers of Tribunal

The Tribunal may:
(a) order an adjournment of the proceedings from time to time;
(b) make an interim award on any matter with respect to which it may make a final award;
(c) grant such interim measures of protection as it deems appropriate, including an order for security for costs, for the posting of security for the amount claimed or for preservation of property that is the subject matter of the dispute;
(d) make an award or interim award granting equitable relief, injunctions, or specific performance on such terms as may be just;
(e) order inspection of documents, exhibits or other property;
(f) order the taking down and recording of a transcript of any oral hearing;
(g) at any time extend or abridge a period of time fixed or determined by it, or any period of time required in the Rules, except the time within which the award is to be made, where it considers it just and appropriate in the circumstances;
(h) empower one member of the Tribunal to hear motions and make procedural orders, including the settling of matters at the pre-arbitration hearing, that do not deal with the substance of the dispute;
(i) request further statements clarifying issues in dispute;
(j) give such direction with respect to procedural matters having regard to Rule 1; and
(k) request from the Court assistance in taking evidence.

25. Exchange of Statements

(a) At the time of commencement of the arbitration, or within 14 days thereafter, the claimant must deliver a written statement (Statement of Claim) to the respondent(s) and the Tribunal setting out the material facts supporting its claim, the points in issue, and the relief or remedy sought, provided however that if no Tribunal has been appointed, then a copy of the Statement of Claim must be delivered to the Tribunal forthwith upon its appointment.
(b) Within 14 days after the respondent receives the Statement of Claim, the respondent shall deliver a written statement outlining its defence (Statement of Defence) and a written statement of any counterclaim (Counterclaim), to the claimant and the Tribunal. A Statement of Defence or Counterclaim sets out the material facts supporting the defence or counterclaim, the points in issue, and the relief or remedy sought. The claimant shall deliver to the Tribunal its defence to the Counterclaim within 14 days after receiving the Counterclaim.
(c) If a respondent, or a claimant, fails to deliver a Statement of Defence or a Defence to the Counterclaim, as the case may be, it shall be deemed to deny the allegations in the Statement of Claim or Counterclaim as the case may be.
(d) Each party shall submit with its statement a preliminary list of relevant documents in accordance with Rule 25 taking into account Rule 1. The type, date, author, recipient and subject matter of each document must be specified. Documents not so identified may be subject to exclusion from the proceedings at the discretion of the Tribunal.

26. Amendment of Statements

The Tribunal upon such terms as are deemed by it to be appropriate, may allow a party to amend or supplement its claim or counterclaim or defence during the course of the arbitration unless the Tribunal considers the delay in amending or supplementing the claim to be prejudicial to a party or unless it considers that the amendment or supplement goes beyond the terms of the arbitration agreement or submission to arbitrate.

27. Production of Documents

(a) Unless the Tribunal otherwise orders, at least 15 days prior to the hearing, or at such other time as the Tribunal may direct, each party shall disclose all documents relating to the matters in issue in the arbitration that are or have been in the possession, control or power of the party. Where the Tribunal considers that the disclosure of all such documents is unnecessary, unduly costly, or burdensome or for other reasons is inconsistent with Rule 1, the Tribunal may give directions to limit the scope of disclosure of documents.
(b) The Tribunal may, on application, order a party to produce any documents the Tribunal considers relevant to the arbitration within a time it specifies and where such order is made the other party may inspect those documents and take copies of them.

28. Pre-hearing Examinations and Interrogatories

The Tribunal may on such terms as it deems just and appropriate, order a party or a representative of a party to submit to an oral examination under oath or to respond by sworn statement to written interrogatories, on such issues as may be ordered by the Tribunal taking into account Rule 1. The Tribunal shall at the time of making any such order determine the use which may be made of the evidence taken on any such examination or in responses.

29. Agreed Statement of Facts

The parties shall, within a period of time specified by the Tribunal, identify those facts which are not in dispute and submit to the Tribunal an agreed statement of facts.

30. Arbitration Hearings

The Tribunal shall set the dates for any interim hearings or meetings, whether oral or not, and shall, except in cases of urgency, give at least 4 days’ written notice thereof to the parties.

31. Confidentiality

The parties, the witnesses, and the Arbitrators shall treat all meetings and communications, the proceedings, documents disclosed in the proceeding, discovery and the awards of the Tribunal as confidential, except in connection with a judicial challenge to, or enforcement of, an award, and unless otherwise required by law. Nothing in this Rule shall preclude disclosure of such information to a party's insurer, auditor, lawyer or other person with a direct financial interest in the arbitration.

32. Evidence

(a) The parties may offer such evidence as is relevant and material to the dispute and shall produce such evidence under oath as the Tribunal may deem necessary to an understanding and determination of the dispute. Strict conformity to legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of the Tribunal and all of the parties, except where any of the parties is voluntarily absent, in default or has waived the right to be present.
(b) The Tribunal shall determine the admissibility, relevance and materiality of the evidence offered and may exclude evidence deemed by the Tribunal to be repetitive.
(c) The Tribunal shall take into account applicable principles of legal privilege, such as those involving the confidentiality of communications between a lawyer and client.

33. Witnesses

(a) The Tribunal may determine the manner in which witnesses are to be examined, and save for a party or the person nominated as that party’s representative for the purpose of the arbitration, may require witnesses to absent themselves from an oral hearing during the testimony of other witnesses.
(b) Where the evidence of a witness is presented by written statement or sworn declaration, the Tribunal may order that the witness be present at an oral hearing for cross examination.

34. Tribunal’s Experts

(a) If the parties agree, the Tribunal may appoint one or more independent experts to report on specific issues to be determined by the Tribunal and may require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for its inspection.
(b) The Tribunal shall communicate the expert’s terms of reference to the parties. Any dispute as to the terms of reference, the relevance of the required information, or production of it, shall be referred to the Tribunal for decision. The cost of any such expert shall be borne by the parties on a basis determined by the Tribunal.
(c) Upon receipt of the expert’s report in writing, the Tribunal shall deliver a copy of it to the parties who shall be given the opportunity to challenge all or any part of the report in a manner determined by the Tribunal.
(d) The expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in the expert’s possession which the expert has used to prepare the report and shall provide that party with a list of all documents, goods or other property not in the experts’ possession, but which were provided in order to prepare the report, and a description of the location of those documents, goods or other property.
(e) An expert shall, after delivery of the report, be required to attend for the purpose of cross examination on some or all of the contents of that report, unless the parties agree that such cross-examination is not required.

35. Default of a Party

Where a party, without sufficient cause, fails to appear at a hearing or to produce evidence, the Tribunal may continue the arbitration after satisfying itself that a reasonable attempt has been made to communicate with the defaulting party. The Tribunal shall make an award based upon the evidence before it.

36. Formal Without Prejudice Offers of Settlement

(a) At any time before the hearing on the merits, a party may deliver to the other party an offer marked "Without Prejudice" to settle one or more of the issues between it and any other party on the terms specified in the offer. An offer to settle may specify a time within which it may be accepted and it will expire if not accepted within that time.
(b) The Tribunal shall take into consideration the offer, the time at which the offer was made and the extent to which it was accepted when dealing with questions of costs and interest.
(c) The Tribunal may be informed by a party of the fact that an offer had been made under this Rule at the time of making any submission on the question of costs, but not before.

37. With Prejudice Offers

The parties may deliver written offers marked "with prejudice" at any time, which offers may be put in evidence at the arbitration hearing.

38. Deposits and Cancellation Fees

(a) The Tribunal may, from time to time, require the parties to deposit by cash, certified cheque, or irrevocable letter of credit, to the Tribunal in trust, equal amounts as an advance for the anticipated costs and expenses of the arbitration including the Tribunal’s fees and expenses.
(b) The deposit will be applied against the final account for fees, disbursements and administration fees rendered by the Tribunal.
(c) If the required deposits are not made within 15 days after receipt of the request, the Tribunal shall inform the parties in order that the other party may make the required payment.
(d) If the required deposits are not made, the Tribunal may order the suspension or termination of the proceeding.
(e) If an arbitration is adjourned, cancelled, or settled prior to thirty (30) days prior to the commencement of the arbitration, or any adjournment date, the deposit shall be returned to the party or parties who made it
(f) Whether or not a deposit has been required, if an arbitration is adjourned, cancelled or settled within thirty (30) days prior to the commencement of the arbitration, or any adjournment date then, subject to sub-rule (g) below a cancellation fee is payable equal to the arbitrator’s hourly rate multiplied by eight (8) hours multiplied by the number of arbitration days reserved that will not be used as a result of such adjournment, cancellation or settlement.
(g) If an arbitration is adjourned, cancelled or settled within thirty (30) days prior to the commencement of the arbitration, or any adjournment date, the Tribunal shall use its best efforts to make the time reserved available to other clients wishing to book the arbitrator. In the event that the arbitrator's time can be booked on other remunerative matters the Tribunal shall refund the deposit for any day the arbitrator worked during the days otherwise set aside for the arbitration and to the extent of the monies earned on other work on those days, up to the maximum amount of the deposit for each arbitration day reserved.
(h) The Tribunal, in consultation with the parties, shall have the right to vary the thirty (30) day period referred to in this Rule, having regard to the total number of arbitration days reserved.

39. Payment out of Deposits

(a) The Tribunal may, from time to time, pay to itself from any deposit it holds, any amount it considers reasonable and appropriate for fees earned (including cancellation fees) or expenses incurred by the Tribunal.
(b) After the final award has been made, a settlement has been reached or the arbitration abandoned or otherwise finally disposed of, the Tribunal shall apply any deposits it holds to the costs of the arbitration, render an accounting to the parties of the deposits received and applied and return any unexpended balance to the parties in proportion to their contributions or as may be directed by the Tribunal in the final award.

40. Closure of Hearings

(a) Where the parties have, on inquiry, advised they have no further evidence to give or submissions to make, or the Tribunal considers further hearings to be unnecessary or inappropriate, the Tribunal may close the hearings.
(b) On its own motion or on the application of a party, the Tribunal may, in exceptional circumstances, re-open the hearings to receive evidence or submissions concerning a matter at any time before the issuance of a partial final award or final award concerning that matter.

41. Settlement

(a) The Tribunal may encourage settlement of the dispute and, with the written agreement of the parties, may order that mediation, conciliation or other procedures be used by the parties at any time during the arbitration proceedings to encourage settlement.
(b) If, during the arbitration proceedings, the parties settle the dispute, the Tribunal shall, upon receiving confirmation of the settlement or determining that there is a settlement, terminate the proceedings and, if requested by the parties, record the settlement in the form of an arbitration award on agreed terms.

42. Award

(a) The Tribunal may make a partial final award finally determining an issue or part of a dispute.
(b) The Tribunal may make an interim award that shall subsequently be incorporated into and become part of a final award.
(c) The Tribunal shall make its final award with respect to the matters determined in the award, within 60 days after the hearings have been closed or such further period as may:

      (i) be agreed to in writing by the parties, or

 

      (ii) be directed by the Court.

 

(d) Awards of the Tribunal shall be in writing and shall, unless the parties otherwise agree, state the reasons upon which they are based. Upon payment of all outstanding Tribunal fees (including cancellation fees) and expenses, copies of the award will be delivered to the parties by the Tribunal.
(e) Where the Tribunal consists of more than two Arbitrators, the award shall be made by a majority of the Tribunal. Where there is no majority decision, the decision of the Chair of the Tribunal shall be the award.

43. Interest

The Tribunal may order interest to be paid in an award for such time and in such amount as it considers just and reasonable.

44 Costs

The Tribunal shall be entitled to fix the costs and expenses of the arbitration including reasonable legal fees, the costs and expenses of the arbitration and the Tribunal. If costs and expenses are awarded, such costs and expenses shall be made part of the award. The Tribunal shall be entitled to make separate awards for legal costs and the fees and expenses of the arbitration and shall be entitled to apportion costs and expenses between the parties.

45. Amendments and Corrections to the Award

(a) A Tribunal may, on the application of a party or on its own initiative, amend or vary an award or interim award to correct:

      (i) a clerical or typographical error;

 

      (ii) an accidental error, slip, omission or other similar mistake; or

 

      (iii) an arithmetical error made in a computation.

 

(b) An application by a party to amend or vary shall be made within 15 days after that party is notified of the award.
(c) An amendment or variation shall not, without the consent of the parties, be made more than 30 days after the parties have been notified of the award.
(d) A party may, within 15 days after being notified of the award, apply to the Tribunal for clarification of the award, and the Tribunal may clarify the award where it considers it appropriate, in which case the clarification becomes part of the award.
(e) A party may, within 30 days after receiving the award, apply to the Tribunal to make an additional award with respect to claims presented in the proceedings but omitted from the award.
(f) Unless otherwise agreed, the award of the Tribunal shall be final and binding and there shall be no appeal.

46. Immunity

The Tribunal shall not be liable to any party for any act or omission in connection with any arbitration conduct under these Rules. The Tribunal shall have the same protections and immunity as a Judge of the Superior Court in the province or territory in which the arbitration takes place.

Schedule

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