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[ Arbitration Rules ] [ ADR Clauses ] [ Model Mediation Procedures ]
 
ARBITRATION RULES
[ Rules ] [ General ] [ Commencement of Arbitration ] [ Appointment of Arbitration Tribunal ] [ Conduct of the Proceeding ] [ Making the Award and Terminating the Proceedings ] [ Schedules A and B ]

RULES

I. Model Arbitration Clause

Parties who agree to arbitrate under the Foundation Rules, and to have the Foundation act as appointing authority and to facilitate the administrative process, may use the following clause in their agreement:

  • All disputes arising out of or in connection with this contract, or in respect of any defined legal relationship associated therewith or derived therefrom, shall be facilitated by, and finally resolved, pursuant to the Rules of The Canadian Foundation for Dispute Resolution.

II. Variation of Rules

Parties should examine the Foundation Rules to ensure that all the provisions are suitable and appropriate in the circumstances. The Rules may be varied, modified or amended by agreement, including providing for a more restricted clause. This agreement could be added to the model arbitration clause described above.

III. Nature of Disputes

It will be noted that Rule 10 applies to circumstances in which a dispute falls under an arbitration clause or agreement. Rule 11 provides for the submission of a dispute to arbitration where there is no provision in the agreement for arbitration.


GENERAL
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  1. Purpose

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

  1. Interpretation
  1. "Act" means the applicable provincial arbitration legislation when the parties to the arbitration reside in or have their principal commercial place of business in the same province or, when the parties are not from the same province the Commercial Arbitration Act, S.C. 1986, c.22.
  2. "Arbitration Tribunal" means either a sole Arbitrator or a panel of three Arbitrators, as the case may be, appointed to serve as the arbitrator or arbitrators of a dispute pursuant to these Rules.
  3. "Arbitrator" means a person appointed to serve as an arbitrator of a dispute pursuant to these Rules.
  4. "Board of Directors" means the Board of Directors of the Foundation from time to time.
  5. "Executive Director" means the Executive Director of the Foundation from time to time, or such individual as may be appointed by the Directors of the Foundation to carry out the duties of the Executive Director.
  6. "Foundation" means The Canadian Foundation for Dispute Resolution.
  7. "Party" means a party to a dispute being conducted under these Rules.
  8. "Rules" means these Commercial Arbitration Rules of procedure as amended from time to time.
  9. In these Rules, all required administrative fees and administrative costs are to be ascertained from the schedules of administrative fees and administrative costs established from time to time by the Foundation.
  10. Where there are more than two Parties to a dispute these Rules shall apply, mutatis mutandis.
  11. In these Rules, terms and phrases that are not herein defined have the meanings as defined in or contemplated by the applicable provincial or federal arbitration legislation and if not therein, in the applicable provincial Interpretation Act or Interpretation Act, R.S.C. 1985, C.I-21.
  1. Application
  1. The Parties to an arbitration in respect of a dispute upon commencement of that arbitration may authorize the Foundation to facilitate the administrative process.
  2. Unless the Parties to the arbitration otherwise agree, the arbitration shall be conducted in accordance with these Rules.
  3. When these Rules apply, the Parties to any arbitration, on or before its commencement, must advise the Foundation in writing of this fact.
  4. The authority and duties of the Foundation are prescribed in the agreement of the Parties and in these Rules, and may be carried out by the Executive Director.
  1. Time
  1. In these 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.
  2. In these Rules in the calculation of time, the first day shall be excluded and the last day included.
  3. In these Rules, where the time for doing an act by the Foundation falls or expires on a day when the Foundation’s business office is not open during regular business hours, the time is extended to the next day that the business office is open.
  4. On the application of a Party to an arbitration and where the Arbitration Tribunal considers it just and appropriate in the circumstances, the Arbitration Tribunal may, at any time, extend or abridge a period of time required in these Rules, other than a period of time within which an award is to be delivered.
  1. Administrative Fee Schedule and Administrative Costs Schedule

The required administrative fees and administrative costs for arbitrations conducted under these Rules, or these Rules as modified, varied or amended, and the rules relating to the payment of these fees and costs are as set out in Schedules "A" and "B".

  1. Variation of Rules

With the exception of Rule 2 (2) to (11) inclusive, Rules 3 through 6 inclusive, 10, 11, 13, 15, 24, 25, 37, 41, 46(2) and 48 the Parties to a dispute to which these Rules apply may modify, vary or amend these Rules by agreement in writing, and notify the Foundation thereof in writing at the commencement of the arbitration, or within 10 days of the agreement being made if this occurs after the commencement of the arbitration.

  1. Communications between Parties

Parties to an arbitration under these Rules may deliver any written communications required or permitted under these Rules personally, by mail, E-mail or by facsimile communication to a Party’s business address or mailing address. A confirmation copy of such communications shall be sent by mail in the case of any electronic transmission.

  1. Communications between the Parties and the Arbitration Tribunal
  1. Except for administrative details and arrangements concerning Arbitrators fees, oral hearings, or meetings in the presence of both Parties or their representatives, there shall be no communication between the Parties and the Arbitration Tribunal otherwise than through the Foundation.
  2. A copy of all written communications from a Party to the Arbitration Tribunal or to the Foundation must be delivered, mailed or sent by E-mail or by facsimile copy to the other Party at the same time as it is given to the Arbitration Tribunal or the Foundation.
  1. Waiver of right to object

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


COMMENCEMENT OF ARBITRATION
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  1. Arbitration under Agreement
  1. Where a dispute falls under an arbitration clause or agreement, a Party, as claimant, may submit that dispute to arbitration by giving a written Notice of Request to Arbitrate to the respondent and to the Foundation. The Notice of Request to Arbitrate shall contain
  1. the names and business or mailing addresses of the Parties to the dispute,
  2. a statement of the matter in dispute,
  3. a request that the described dispute be referred to arbitration,
  4. a precise estimate of the amount claimed, or failing that, of the value of what is in issue in the dispute, unless the claimant cannot make an estimate of such value in which case the reason for this must be set out in detail,
  5. the remedy sought,
  6. the number and names of Arbitrators agreed upon, if any,
  7. the required qualifications of the Arbitrators, if any, and
  8. any modification, variance or amendment of these Rules which has been agreed on in writing.
  1. The required administrative fee calculated in accordance with Schedule "A" must accompany the Notice of Request to Arbitrate.
  2. 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.
  1. Arbitration by Submission
  1. Parties to a dispute may submit that dispute to arbitration by filing a Notice of Submission to Arbitration with the Foundation. The Notice of Submission to Arbitration shall contain
  1. the names and business or mailing addresses of the Parties to the dispute,
  2. a statement of the matter in dispute,
  3. a precise estimate of the amount claimed, or failing that, of the value of what is in issue in the dispute, unless claimant cannot make an estimate of such value in which case the reason for this must be set out in detail,
  4. the remedy sought,
  5. the number and names of Arbitrators agreed upon, if any,
  6. the required qualifications of the Arbitrators, if any, and
  7. any modification, variance or amendment of these Rules which has been agreed on in writing.
  1. The required administrative fee calculated in accordance with Schedule "A" must accompany the Notice of Submission to Arbitration.
  2. 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.
  1. Foundation review

Before an Arbitration Tribunal has been appointed in an arbitration, the Executive Director may review the documents initiating the arbitration and advise the Parties whether or not he or she considers the matter in dispute to be arbitrable, but the Parties are not bound by that advice.

  1. Commencement date

The arbitration is deemed to have commenced when a Notice of Request to Arbitrate or a Notice of Submission to Arbitration has been filed with the Foundation and the requisite administrative fee has been paid. The Foundation shall notify the Parties when an arbitration has been commenced and shall furnish them with a Notice of Commencement of Arbitration.


APPOINTMENT OF ARBITRATION TRIBUNAL
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  1. Number

Unless the Parties have agreed on the number of Arbitrators before or within 15 days after the arbitration has commenced, the arbitration shall be before a single Arbitrator. The Foundation may, after reviewing the documents initiating the arbitration, recommend that the matter be heard before more than one Arbitrator, but the Parties are not bound by that recommendation.

  1. Appointment of Arbitrator
  1. If the Parties cannot agree on the single Arbitrator within 21 days after the arbitration has commenced, a Party may request the Foundation to provide a list of suitable Arbitrators from which the Parties may select an Arbitrator. If, within 21 days of such list being provided the Parties cannot agree on the selection of a single Arbitrator, either Party may then request the Executive Director to make such appointment.
  2. Where the Parties have agreed to appoint more than one Arbitrator then each Party shall appoint one Arbitrator and the Parties shall jointly appoint the third Arbitrator.
  3. In the event that,
    1. a Party fails to make a required appointment within the time agreed upon between the Parties or, if no time is specified, 30 days from the commencement of the arbitration; or
    2. the Parties are unable to agree on the appointment of a third Arbitrator within 40 days from the commencement of the arbitration;

then a Party may request the Foundation to make the required appointment.

  1. A Party who appoints an Arbitrator must notify the Foundation in writing, forthwith, of the appointment.
  2. A Party may, at any time, request the Foundation to appoint an Arbitrator.
  3. The Parties acknowledge that all Arbitrators, howsoever appointed, are independent contractors and not agents of the Foundation. The Parties further acknowledge that the Foundation will have no responsibility for the acts, omissions or liability or decisions of the Arbitrators.
  1. Appointment by Foundation
  1. Where the Foundation is asked to make the appointment of an Arbitrator, unless it determines that the following procedure is not appropriate in a particular case, it shall use this procedure:
  1. the Foundation shall communicate to both Parties an identical list containing at least 4 names;
  2. within a period of 10 days following receipt of the list referred to in paragraph (a), each Party may return the list to the Foundation after having deleted any name to which it objects and numbered the remaining names on the list in the order of its preference;
  3. if a Party has not advised the Foundation with 10 days that it objects to any of the names suggested, it shall be deemed conclusively to have accepted those names;
  4. after the 10-day period referred to in paragraph (b), the Executive Director shall either appoint the Arbitrator from the remaining names on the lists returned to it, taking into account the order of preference indicated by the Parties; or failing any apparent consensus by the Parties in the choice of an Arbitrator the Executive Director may, in his discretion, send out one further list containing at least 4 names, and shall 10 days thereafter appoint the Arbitrator, taking into account the order of preference indicated by the Parties.
  1. In appointing an Arbitrator, the Executive Director will have due regard to the qualifications requested by the Parties, the nature of the contract, the nature and circumstances of the dispute and any other considerations likely to secure the appointment of a qualified, independent and impartial Arbitrator.
  2. If any Party wishes to know more about a potential Arbitrator whose name is put forward by the Foundation, that Party must not communicate directly with the potential Arbitrator for that purpose, but rather must make the request through the Foundation.
  1. Independence and Impartiality
  1. An Arbitrator shall be and remain at all times wholly independent and impartial and shall not act as an advocate for any Party to the arbitration.
  2. Every person must, before accepting an appointment as Arbitrator, sign 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. A copy of the statement shall be filed with the Foundation if the person is appointed Arbitrator and a copy provided to the Parties.
  1. Description

Where a person is proposed for appointment as Arbitrator, his or her full name and address and a description of his or her past and present known professional positions, qualifications and arbitration experience shall be given by the proposer to the Foundation and any other Party and, if the Foundation is the proposer, to the Parties.

  1. Substitution
  1. If an Arbitrator refuses to act, is found by a court of competent jurisdiction to be incapable of acting, withdraws from office, is removed from office by order of the court or dies, the Foundation may, on submission of satisfactory evidence, declare the office vacant. A substitute Arbitrator shall be appointed according to the provisions of these Rules that were applicable to the appointment of the Arbitrator being replaced.
  2. 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.
  1. Challenges
  1. 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.
  2. A Party who intends to challenge an Arbitrator shall, within 7 days after becoming aware of the appointment of a single Arbitrator, or of the constitution of the Arbitration Tribunal, or after becoming aware of any circumstances referred to in sub-rule (1) above, send a written statement of the challenge and the reasons for the challenge to the Arbitration Tribunal and to the Foundation.
  3. If the Arbitrator challenged withdraws or the other Party agrees to the challenge, the mandate of the Arbitrator terminates.
  4. 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

CONDUCT OF PROCEEDING
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  1. Representation

Where a Party intends to be represented or assisted by a lawyer, that Party shall, in writing, advise the other Party and the Foundation of the lawyer’s name and the capacity in which he or she is acting at least 5 days before any scheduled hearing or meeting.

  1. Place of arbitration
  1. The Parties may agree in writing that the place of arbitration be anywhere.
  2. If no place is agreed upon, the place of arbitration shall be at the discretion of the Arbitration Tribunal.
  3. The Arbitration Tribunal may meet at any other place it considers necessary for consultation, to hear witnesses, experts or the Parties or for the inspection of documents, goods, or other property.
  1. Pre-arbitration meeting
  1. Within 14 days of its appointment, the Arbitration Tribunal shall convene a pre-arbitration meeting, unless the Parties notify the Foundation in writing that they do not wish a pre-arbitration meeting.
  2. The Parties should be prepared at the pre-arbitration meeting to
  1. identify the issues in dispute,
  2. discuss the procedure to be followed in the arbitration, and
  3. 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.
  1. The pre-arbitration meeting may take place by conference telephone call, video conferencing or other electronic means.
  2. The Arbitration Tribunal shall record any agreements or orders made at the pre-arbitration meeting and shall, within 7 days of that meeting, send a copy of that document to each of the Parties and file a copy with the Foundation.
  1. Conduct of the arbitration
  1. Subject to these Rules, the Arbitration Tribunal may conduct the arbitration in the manner it considers appropriate but each Party shall be treated fairly and shall be given full opportunity to present its case.
  2. The Arbitration Tribunal shall strive to achieve a just, speedy and inexpensive determination of every proceeding on its merits, taking into account the values which distinguish arbitration from litigation.
  3. 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 Arbitration 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.
  1. Jurisdiction
  1. The Arbitration 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,
  1. an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract, and
  2. a decision by the Arbitration Tribunal that the contract is null and void shall not entail the invalidity of the arbitration clause unless specifically found by the Arbitration Tribunal.
  1. A Party is not precluded from raising a jurisdictional plea by the fact that it has appointed, or participated in the appointment of an Arbitrator.
  1. Exchange of statements
  1. Within 21 days of the commencement of the arbitration the claimant must send a written statement to the respondent, the Arbitration Tribunal and to the Foundation outlining the facts supporting its claim, the points in issue, and the relief or remedy sought, provided however that if no Arbitration Tribunal is in place, then a copy of the written statement served pursuant to this rule must be served upon the Arbitration Tribunal forthwith upon its appointment.
  2. Within 15 days after the respondent receives the claimant’s statement, the respondent shall send a written statement outlining its defense to the particulars contained in the statement of claim and a written statement of its counterclaim, if any, to the claimant, the Arbitration Tribunal and the Foundation together with the required administrative fee calculated in accordance with Schedule "A". The respondent by counterclaim shall send a written statement to the claimant by counterclaim, the Arbitrator and the Foundation outlining its defense to the counterclaim within 15 days after receiving the counterclaim.
  3. Each Party shall submit with its statement a list of the documents upon which it intends to rely. 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 Arbitration Tribunal.
  1. Amendment of or supplement to claim

The Arbitration 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 defense during the course of the arbitration unless the Arbitration 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.

  1. Production of documents
  1. Each Party shall make available to the other Party for inspection and taking copies, any documents upon which the former Party intends to rely.
  2. The Arbitration 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 an order is made the other Party may inspect those documents and take copies of them. In deciding an application under this Rule the Arbitration Tribunal shall have regard to the provisions of Rule 24(2).
  1. Discovery
  1. The Arbitration Tribunal, on such terms as are deemed by it to be appropriate, may, on application, order a Party to submit to an examination for discovery if it considers discovery necessary to ensure that a just result can be achieved, however in making such order the Arbitration Tribunal shall have due regard for the provisions of Rule 24(2).
  2. If a Party is a corporation, the Party shall submit to examination for discovery by means of a representative of the corporation, provided however that if no representative is nominated by the Party then the Arbitration Tribunal may designate a representative. If a representative, whether nominated by the Party or the Arbitration Tribunal, fails to appear at any scheduled hearing or meeting, or to submit to examination for discovery pursuant to Rule 28(2), then the Arbitration Tribunal may make an order declaring the Party to be in default and the provisions of Rule 36 shall apply. It shall be a requirement of the representative to inform himself or herself by appropriate inquiries from the Party, its directors, officers and employees, and upon failure to do so, the Arbitration Tribunal may order the representative to do so, and upon failure to comply with the order of the Arbitration Tribunal, the Arbitration Tribunal may make an order declaring the Party to be in default and the provisions of Rule 36 shall apply.
  1. Agreed Statement of Facts

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

  1. Arbitration hearings
  1. The Arbitration Tribunal shall set the dates for any interim hearings or meetings, whether oral or not, and shall give at least 7 days’ written notice thereof to the Parties and the Foundation.
  2. In the case of hearings, oral or not, on the merits of the dispute, notice to the Parties and to the Foundation must be given in writing at least 21 days prior thereto.
  1. Confidentiality

The Parties and the Arbitrators shall treat all meetings and communications, the proceedings, any related discovery and the decisions of the Arbitration Tribunal as confidential, except in connection with a judicial challenge to, or enforcement of, an award, and unless otherwise required by law.

  1. Evidence
  1. Each Party shall prove the facts relied upon to support its claim or defense.
  2. If a Party is presenting evidence through a witness or witnesses, that Party shall, no later than 14 days before the commencement of the oral hearing, advise the Arbitration Tribunal and the other Party of the name and address of the witness or witnesses and shall provide a written statement containing the substance of such evidence.
  3. Not less than 7 days before a hearing commences at which the evidence of a witness is to be tendered a Party may request the personal attendance of that witness for oral examination before the Arbitration Tribunal. In the absence of such a request by a Party, or by the Arbitration Tribunal, the written statement may be taken as the evidence given by a witness, subject to any rulings as to admissibility by the Arbitration Tribunal.
  4. The written statement of an expert should be provided as soon as possible and in any event at least 14 days before the commencement of a hearing.
  5. The Arbitration Tribunal shall be the judge of the relevance and materiality of the evidence offered and it is not required to apply the legal rules of evidence.
  6. All oral evidence must be taken in the presence of the Arbitration Tribunal and all the Parties except where a Party is absent in default or has otherwise waived the right to be present.
  7. The Parties must each prepare an assembly of all relevant documents to be introduced at the hearing, and must submit their documents to the other Party and to the Arbitration Tribunal no later than 5 days before the commencement of the hearing. The Parties’ documents shall be admitted by the Arbitration Tribunal as prima facie evidence of proof of their existence and their authenticity, without further proof.
  8. A Party must give written notice to the other Party and to the Arbitration Tribunal no later than 5 days before the hearing of any questions it intends to raise as to the admissibility of any of the other Party’s documents. The notice shall identify the documents in respect of which the questions are raised and the grounds upon which the objections are made.
  9. The Arbitration Tribunal has discretion as to whether or not to allow a Party to introduce into evidence at the hearing a document which was not disclosed under Rule 26 or submitted 5 days before the commencement of the hearing under this Rule.
  1. Witnesses
  1. The Arbitration Tribunal may determine the manner in which witnesses are to be examined, and save for a Party or the person nominated by a Party 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 another witness.
  2. Where the evidence of a witness is presented by written statement, the Arbitration Tribunal may order that the witness be present at an oral hearing for cross examination.
  3. The Arbitration Tribunal may call additional witnesses on its own motion, in which event the Parties shall have the right to challenge such evidence, by cross examination or otherwise, and to call evidence in rebuttal.
  1. Tribunal’s Experts
  1. The Arbitration Tribunal may appoint one or more experts to report on specific issues to be determined by the Arbitration 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.
  2. The Arbitration Tribunal shall communicate the expert’s terms of reference to the Parties. Any dispute between a Party and an expert as to the terms of reference, the relevance of the required information, or production of it, shall be referred to the Arbitration Tribunal for decision. The cost of any such expert shall be borne by the Parties on a basis determined by the Arbitration Tribunal.
  3. Upon receipt of the expert’s report in writing, the Arbitration Tribunal shall communicate 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 Arbitration Tribunal.
  4. 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.
  5. If the Arbitration Tribunal considers it necessary, 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.
  1. Default of a Party
  1. Where a claimant withdraws its claim or, after not less than 14 days’ notice from an Arbitration Tribunal, fails to comply with a requirement under these Rules or a previously given order of the Arbitration Tribunal, or without sufficient cause continues to be in breach, and the Arbitration Tribunal finds that the continuation of the proceedings have become unnecessary or impossible, it may issue an order dismissing the claimant’s claim, and subject to the proviso in this Rule 36, terminate the arbitral proceedings. Provided however that if a Party has served a counterclaim pursuant to Rule 26(2) above, the Arbitration Tribunal may dismiss the claimant’s claim and continue the arbitration with notice to the claimant and to the Foundation. An award shall not be made solely on the default of the claimant and in such event the Arbitration Tribunal shall require the respondent to submit such evidence as the Arbitration Tribunal may require for the making of an award with respect to the counterclaim.
  2. Where an order is issued pursuant to sub-rule (1), the Foundation and the Parties must be notified in writing within 7 days, at which time the mandate of the Arbitration Tribunal terminates.
  3. Where the respondent, without sufficient cause and after not less than 10 days’ notice from the Arbitration Tribunal, fails to communicate its statement of defense or any other process ordered within the required time, the Arbitration Tribunal may continue the arbitration with notice to the respondent and to the Foundation. An award shall not be made solely on the default of the respondent and the Arbitration Tribunal shall require the claimant to submit such evidence as the Arbitration Tribunal may require for the making of an award.
  4. Where a Party, without sufficient cause, fails to appear at a hearing or to produce evidence, the Arbitration Tribunal may continue the arbitration after satisfying itself that a reasonable attempt has been made to communicate with the defaulting Party. The Arbitration Tribunal shall make an award based upon the evidence before it.
  1. General powers of Arbitration Tribunal

The Arbitration Tribunal may

  1. order an adjournment of the proceedings from time to time,
  2. make an interim order on any matter with respect to which it may make a final award, including an order for costs, or any other protection, or for preservation of property that is the subject matter of the dispute,
  3. order inspection of documents, exhibits or other property,
  4. order the taking down and recording of a transcription of any oral hearing,
  5. at any time extend or abridge a period of time fixed or determined by it, or any period of time required in these Rules except the time within which the award is to be made according to Rule 44, where it considers it just and appropriate in the circumstances, and
  6. empower one member of the Arbitration Tribunal to make interim and other orders, including the settling of matters at the pre-arbitration hearing, that do not deal with the substance of the dispute.
  1. Formal offers of settlement
  1. At any time before the hearing on the merits, a Party may deliver to the other Party a signed unconditional Offer to Settle one or more of the issues between it and any other Party on the terms specified in the offer.
  2. An Offer to Settle may specify a time within which it may be accepted and it will expire if not accepted within that time.
  3. Any offeree notified of an Offer to Settle may convey notice of its signed acceptance of all or part of the Offer to Settle to the offering Party and to the Foundation.
  4. The Arbitration Tribunal shall take into consideration the offer and the extent to which it was accepted when dealing with questions of costs and interest.
  5. The Arbitration 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. The Arbitration Tribunal may then require production of the offer, and shall take it into account when determining the responsibility for costs.
  6. The offeree may, any time up to the filing of the award with the Foundation, agree in writing directed to the Executive Director to consent to an award in the terms of the offer, or upon such varied terms as the Parties may in writing agree. The offer and acceptance, or such varied terms of agreement as the Parties have agreed, shall be reviewed by the Executive Director, for the purpose of determining whether all matters before the Arbitration Tribunal have been disposed of, except the questions of costs and interest. If it is thought that they would do so and that it would be advisable to so advise the Arbitration Tribunal, the Executive Director will do so. In such a case the Arbitration Tribunal shall make an award in the terms agreed upon. It shall also determine the question of how the costs of the arbitration and any interest to be paid shall be allocated under the circumstances.
  7. If all matters have not been disposed of pursuant to Rule 38(6) the hearing on the merits shall proceed with respect to the outstanding issues. The Arbitration Tribunal shall determine how the costs of the arbitration and any interest to be paid shall be allocated under the circumstances.
  1. Deposits against costs
  1. The Arbitration Tribunal may, from time to time, require the Parties to deposit by cash or certified cheque to the Foundation in trust, an equal amount as an advance for the anticipated costs of the arbitration including the Arbitration Tribunal’s fees.
  2. If the required deposits are not made to the Foundation in trust within 15 days after receipt of the request from the Arbitration Tribunal, the Arbitration Tribunal shall inform the Parties in order that the other Party may make the required payment.
  3. If the required deposits are not made, the Arbitration Tribunal may order the suspension or termination of the proceeding.
  1. Payment out of deposits
  1. The Foundation may, from time to time, pay to the Arbitration Tribunal from any deposit it holds under Rule 39 any amount it considers reasonable and appropriate for fees earned or expenses incurred by the Arbitration Tribunal in the arbitration.
  2. After the final award has been made, a settlement has been reached or the arbitration abandoned or otherwise finally disposed of, the Foundation shall apply any deposits it holds to the costs of the arbitration, including any unpaid Arbitration Tribunal fees and administrative fees, render an accounting to the Parties of the deposits received and applied and return any unexpended balance to the Parties.
  3. Nothing in this Rule 40 shall preclude the Parties exercising any right of taxation of costs of the arbitration.

MAKING THE AWARD AND TERMINATING THE PROCEEDINGS
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  1. Legal and Equitable principles apply

Subject to Rule 33(5), an Arbitration Tribunal shall decide the dispute in accordance with the law of the jurisdiction whose arbitration statute is chosen pursuant to Rule 2(1) above, including the laws of equity.

  1. Closure of hearings
  1. Where the Parties have, on inquiry, advised they have no further evidence to give or submissions to make, or the Arbitration Tribunal considers further hearings to be unnecessary or inappropriate, the Arbitration Tribunal may close the hearings.
  2. On its own motion or on the application of a Party, the Arbitration Tribunal may, in exceptional circumstances, reopen the hearings at any time before the final award is made.
  1. Settlement
  1. The Arbitration 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.
  2. If, during the arbitration proceedings, the Parties settle the dispute, the Arbitration Tribunal shall terminate the proceedings and, if requested by the Parties record the settlement in the form of an arbitration award on agreed terms.
  1. Award
  1. The Arbitration Tribunal may make a partial award that shall be incorporated into and become part of the final award when all issues, including costs, have been determined.
  2. The Arbitration Tribunal shall make its final award within 60 days after the hearings have been closed or such further period as may:
  1. be agreed to in writing by the parties; or
  2. be directed by a court of competent jurisdiction.
  1. Awards of the Arbitration Tribunal shall be in writing and state the reasons upon which they are based. The Arbitration Tribunal shall file the original copy of awards with the Foundation which the Foundation shall maintain in confidence. Upon payment of all outstanding administrative and Arbitration Tribunal fees, copies of the final award will be provided to the Parties by the Foundation.
  2. Where an award is made by more than two Arbitrators, the award shall be made by a majority of the Arbitration Tribunal. Where there is no majority decision, the decision of the chair of the Arbitration Tribunal shall be the award.
  1. Interest

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

  1. Costs
  1. The Arbitration Tribunal shall be entitled to fix the costs of arbitration.
  2. If costs are awarded, such costs shall be made part of the award.
  1. Amendments and corrections to the award
  1. An Arbitration Tribunal may, whether on the application of a Party or on its own initiative, amend or vary an award to correct:
  1. a clerical or typographical error,
  2. an accidental error, slip, omission or other similar mistake, or
  3. an arithmetical error made in a computation.
  1. An application by a Party to amend or vary shall be made within 15 days after that Party is notified of the award.
  2. 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.
  3. A Party may, within 15 days after being notified of the award, apply to the Arbitration Tribunal for clarification of the award, and the Arbitration Tribunal may clarify the award where it considers it appropriate, in which case the clarification becomes part of the award.
  4. A Party may, within 30 days after receiving the award, apply to the Arbitration Tribunal to make an additional award with respect to claims presented in the proceedings but omitted from the award.
  5. An amended, varied or additional award shall be filed by the Arbitration Tribunal with the Foundation.
  1. Liability of Foundation

The Foundation shall have no liability to the Parties for the acts or omissions of the Foundation, its Directors, Executive Director, officers, employees or agents for any loss or damages suffered by a Party; except those caused directly by the wilful misconduct, wilful act or wilful omission of the Foundation.

  1. Service of Documents

Any document required by these Rules to be served may be served either by delivery, post, E-mail or facsimile. If by delivery service shall be deemed to have accrued on the day of such delivery to a Party at its regular place of business or its Counsel where applicable. If by post, except for confirmation copies of documents sent by E-mail or facsimile, service shall be deemed to have been effected 2 days following the date of posting by single registered mail. If by E-Mail or facsimile, service shall be deemed to have been effected when sent. A confirmation copy of any such document shall be sent by post in the case of any electronic transmission.

  1. Address for Service of Documents

When these Rules apply to any arbitration, the Parties shall provide to one another and to the Foundation, at the time of notice pursuant to Rule 3(3) above, a full postal address, telephone number, facsimile number and E-mail address, as may be applicable.


These Commercial Arbitration Rules have been produced by The Canadian Foundation for Dispute Resolution. Any feedback or concerns on the content of this document please contact CFDR at the addresses below.

The Canadian Foundation for Dispute Resolution
234 Eglinton Avenue East, Suite 500, Toronto, Ontario, M4P 1K5
Tel. (416) 487-4733 Fax. (416) 487-4429

As at 2005

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