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RSNL1990 CHAPTER A-14

ARBITRATION ACT

Amended:

1995 c13 s2

CHAPTER A-14

AN ACT TO PROVIDE FOR ARBITRATIONS

Analysis



Short title

        1. This Act may be cited as the Arbitration Act.

1985 c8 s1

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Interpretation

        2. (1) In this Act

             (a)  "arbitrator" means the person who, under this Act or in an arbitration agreement, hears and decides an arbitration;

             (b)  "court" means the Trial Division or a judge of the Trial Division;

             (c)  "rules" means the Rules of the Supreme Court; and

             (d)  "submission" means

                      (i)  a written agreement to submit present or future differences to arbitration, whether an arbitrator is named in the agreement or not,

                     (ii)  a direction in an Act that a person appoint arbitrators or proceed to arbitration under this Act, or

                    (iii)  an order made by the court with respect to arbitration under this Act.

             (2)  This Act shall be read as one with the Judicature Act, and rules may be made under that Act relating to this Act.

1985 c8 s2; 1986 c42 Sch B

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Submission irrevocable

        3. Unless a submission expresses a contrary intention, the submission is irrevocable, except by leave of the court, and has the same effect as if it had been made an order of the court.

1985 c8 s3

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Staying proceedings

        4. (1) Where a party to a submission, or a person claiming through or under a party, begins legal proceedings against another party to the submission, or a person claiming through or under a party, in respect of a matter agreed to be referred, a party to the legal proceedings may, after appearance and before delivering pleadings or taking other steps in the proceedings, apply to the court for an order staying the proceedings.

             (2)  The court may make an order staying the proceedings under subsection (1), upon being satisfied,

             (a)  that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the submission; and

             (b)  that the applicant was, at the time the proceedings started, and still is ready and willing to do all things necessary for the proper conduct of the arbitration.

1985 c8 s4

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Appointment by court

        5. (1) A party to a submission may serve the other parties or the arbitrators with a written notice to appoint or concur in the appointment of an arbitrator, umpire or 3rd arbitrator

             (a)  where a submission provides that the reference must be to a single arbitrator and all the parties do not, after differences have arisen, concur in the appointment of the arbitrator;

             (b)  where an appointed arbitrator refuses to act, is incapable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be filled and the parties do not fill the vacancy;

             (c)  where the parties or 2 arbitrators may appoint an umpire or 3rd arbitrator and do not appoint that umpire or 3rd arbitrator; or

             (d)  where an appointed umpire or 3rd arbitrator refuses to act, is incapable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be filled and the parties or arbitrators do not fill the vacancy.

             (2)  Where in paragraph (1)(d) an appointed umpire or 3rd arbitrator refuses to act, is incapable of acting or dies, the appointed umpire or 3rd arbitrator is considered to have vacated the post.

             (3)  Where the appointment of the arbitrator, 3rd arbitrator or umpire is not made within 7 clear days after the service of the notice under subsection (1), the court may, on application of the party who gave the notice, appoint the arbitrator, 3rd arbitrator or umpire.

             (4)  An arbitrator, 3rd arbitrator or umpire appointed under subsection (3) has the same power to act in the reference and make an award as if the arbitrator, 3rd arbitrator or umpire had been appointed by consent of all the parties to the reference.

1985 c8 s5

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Appointment of substitute

        6. Unless a submission expresses a contrary intention, where a submission provides that a reference will be to 2 arbitrators, 1 to be appointed by either party, the party who appointed the arbitrator may appoint a new arbitrator to act in the place of the original arbitrator where the original arbitrator refuses to act, is incapable of acting, or dies.

1985 c8 s6

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Failure to appoint

        7. Unless a submission expresses a contrary intention,

             (a)  where a submission provides that a reference will be to 2 arbitrators, 1 to be appointed by either party; and

             (b)  where a party fails to appoint an arbitrator either originally, or by way of substitution under section 6 within 7 clear days after the other party has served the party in default with notice to make appointment,

the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator.

1985 c8 s7

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Award of sole arbitrator

        8. A sole arbitrator appointed under section 7 has the same power to act in the reference and make an award as if the sole arbitrator had been appointed by consent of all the parties to the reference and that arbitrator's award is as binding on both parties as if the sole arbitrator had been so appointed.

1985 c8 s8

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Setting aside appointment

        9. The court may set aside an appointment of an arbitrator made under section 6 or 7.

1985 c8 s9

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Ancillary powers

     10. The arbitrators or umpire acting under a submission, unless the submission expresses a contrary intention,

             (a)  may administer oaths or take the affirmations of the parties and witnesses appearing;

             (b)  may state an award as to the whole or part of the submission in the form of a special case for the opinion of the court; and

             (c)  may correct a clerical mistake or error in an award arising from an accidental error or omission.

1985 c8 s10

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Subpoenas

     11. (1) A party to a submission may take out a subpoena

             (a)  requiring witnesses to attend the arbitration and give evidence; and

             (b)  requiring witnesses to attend the arbitration, give evidence and also bring certain documents in their possession as specified in the subpoena.

             (2)  A person may not be compelled under a subpoena taken out under subsection (1) to produce a document that the person could not be compelled to produce on the trial of an action.

1985 c8 s11

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Remission to arbitrator

     12. (1) In all cases of reference to arbitration the court may remit all or any of the matters referred for the reconsideration of the arbitrators or umpire.

             (2)  When an award is remitted under subsection (1), the arbitrators or umpire shall, unless the order otherwise directs, make their award within 3 months after the date of the order.

1985 c8 s12

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Removal of arbitrator

     13. Where an arbitrator or umpire has misconducted himself or herself, the court may remove the arbitrator or umpire.

1985 c8 s13

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Setting aside of award

     14. (1) Where an arbitrator or umpire has misconducted himself or herself, or an arbitration or award has been improperly procured, the court may set the award aside.

             (2)  An application in respect of an arbitration or award referred to in subsection (1) may be made to the Trial Division within 60 days of the receipt of that arbitration or award by the parties to the application.

1985 c8 s14; 1995 c13 s2

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Enforcement of award

     15. (1) An award on a submission may, by leave of the court, be registered in the cause book of the court and enforced in the same manner as a judgment or order.

             (2)  Where leave of the court is given under subsection (1), the judgment or order may be entered in terms of the award.

1985 c8 s15

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Definition

     16. In sections 17 to 27 "referee" includes a judge, a master of the court or a special referee or arbitrator agreed upon by the parties or appointed by the court.

1985 c8 s16

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Reference to referee

     17. The court may, with the consent of the parties, refer a question arising in a cause or matter, other than a criminal proceeding by the Crown, for inquiry or report to a referee.

1985 c8 s17

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Report adopted by court

     18. The report of a referee may be adopted wholly or in part by the court and where adopted may be enforced as a judgment or order.

1985 c8 s18

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Reference by court

     19. In a cause or matter, other than a criminal proceeding by the Crown,

             (a)  where all the parties who are not under a disability consent;

             (b)  where the cause or matter requires a prolonged examination of documents or a scientific or local investigation that cannot, in the opinion of the court, be conveniently made before a jury or conducted by the court through its ordinary officers; or

             (c)  where the matter in dispute consists wholly or in part of matters of account,

the court may order the cause or matter, or a question or issue of fact arising in the cause or matter, to be tried before an arbitrator agreed on by the parties.

1985 c8 s19

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Referee officer of court

     20. Where a reference is made to a referee or arbitrator under an order of the court, the referee or arbitrator is considered to be an officer of the court and has the authority and shall conduct the reference in the manner prescribed by the rules, and subject to those rules, as the court may direct.

1985 c8 s20

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Effect of report

     21. The report or award of a referee or arbitrator on a reference ordered by the court is equivalent to the verdict of a jury, unless set aside by the court.

1985 c8 s21

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Remuneration

     22. The remuneration to be paid to a referee or arbitrator to whom a matter is referred by the court may be determined by the court.

1985 c8 s22

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Powers of court

     23. The court has, with respect to references made under order of the court, the same powers conferred upon the court with respect to references made by consent out of court.

1985 c8 s23

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Subpoenas

     24. (1) The court may order that a subpoena be issued to compel the attendance of a witness and production of documents before a referee, arbitrator or umpire.

             (2)  The court may order that an order be issued to bring up a prisoner for examination before a referee, arbitrator or umpire.

1985 c8 s24

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Special case

     25. A referee, arbitrator or umpire may, at any stage of a reference, and shall, where directed by the court, state in the form of a special case for the opinion of the court a question of law arising in the course of the reference.

1985 c8 s25

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Terms of order

     26. An order made under this Act may be made on the terms as to costs or otherwise as the authority making the order thinks just.

1985 c8 s26

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Prohibition

     27. An arbitrator, umpire or referee shall not have a monetary interest in the matter upon which the arbitrator, umpire or referee is appointed to decide.

1985 c8 s27

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Single arbitrator

     28. Where no other method of reference is provided, the reference is to a single arbitrator.

1985 c8 s28

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Appointment of umpire

     29. Where a reference is to 2 arbitrators, they may appoint an umpire within the period during which they may make an award.

1985 c8 s29

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Making of award

     30. Arbitrators shall make an award in writing

             (a)  within 3 months after entering on the reference or after having been called on to act by written notice from a party to the submission; or

             (b)  on or before a later day to which the arbitrators by a writing signed by them may enlarge the time for making the award.

1985 c8 s30

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Enlargement of time

     31. The time for making an award may be extended by order of the court, whether or not the time for making the award has expired.

1985 c8 s31

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Umpire may act

     32. Where the arbitrators

             (a)  have allowed their time or extended time to expire without making an award; or

             (b)  have delivered to a party to the submission or to the umpire a written notice stating that they cannot agree,

the umpire may immediately enter on the reference instead of the arbitrators.

1985 c8 s32

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Award of umpire

     33. An umpire shall make an award

             (a)  within 1 month after the original or extended time for making the award by the arbitrators has expired; or

             (b)  on or before a later day to which the umpire by a writing signed by the umpire enlarges the time for making the award.

1985 c8 s33

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Examination of parties

     34. The parties to the reference and parties claiming through them

             (a)  shall, subject to a legal objection, submit to be examined by the arbitrators or umpire on oath or affirmation in relation to the matters in dispute;

             (b)  shall, subject to a legal objection, produce before the arbitrators or umpire books, deeds, papers, accounts, writings and documents within their power or possession that may be required or called for; and

             (c)  shall do those other things that during the proceedings on the reference the arbitrators or umpire may require.

1985 c8 s34

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Examination under oath or affirmation

     35. The witnesses on a reference may be examined on oath or affirmation.

1985 c8 s35

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Award final

     36. The award made by arbitrators or an umpire is final and binding on the parties and persons claiming under them.

1985 c8 s36

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Costs

     37. (1) The costs of the reference and award are in the discretion of the arbitrators or umpire who

             (a)  may direct to, by whom and in what manner the costs or a part of them shall be paid;

             (b)  may tax or settle the amount of costs to be paid; and

             (c)  may award costs to be paid as between solicitor and client.

             (2)  Until rules are made under the Judicature Act, for the purpose of this Act, the prevailing cost structure of the court applies with the necessary changes.

1985 c8 s37; 1986 c42 Sch B