Yechiel (Gene C.) Colman
ADDEDNUM
MANDATORY PROVISIONS OF THE ARBITRATION ACT TO BE ADOPTED BY THE PARTIES IN THE CONDUCT OF THE ARBITRATION:
Section 5(4): An agreement requiring or having the effect of requiring that a matter be adjudicated by arbitration before it may be dealt with by a court has the same effect as an arbitration agreement.
Section 19: 1. In an arbitration, the parties shall be treated equally and fairly.
(2) Each party shall be given an opportunity to present a case and to respond to the other parties' cases.
Section 39: The court may extend the time within which the arbitral tribunal is required to make an award, even if the time has expired.
Section 46: (1) On a party's application, the court may set aside an award on any of the following grounds:
1. A party entered into the arbitration agreement while under a legal incapacity.
2. The arbitration agreement is invalid or has ceased to exist.
3. The award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.
4. The composition of the tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with this Act.
5. The subject matter of the dispute is not capable of being the subject of arbitration under Ontario law.
6. The applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party's case, or was not given proper notice of the arbitration or of the appointment of an arbitrator.
7. The procedures followed in the arbitration did not comply with this Act.
8. An arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias.
9. The award was obtained by fraud.
(2) If paragraph 3 of subsection (1) applies and it is reasonable to separate the decisions on matters covered by the arbitration agreement from the impugned ones, the court shall set aside the impugned decisions and allow the others to stand.
(3) The court shall not set aside an award on grounds referred to in paragraph 3 of subsection (1) if the party has agreed to the inclusion of the dispute or matter, waived the right to object to its inclusion, or agreed that the arbitral tribunal has power to decide what disputes have been referred to it.
(4) The court shall not set aside an award on grounds referred to in paragraph 8 of subsection (1) if the party had an opportunity to challenge the arbitrator on those grounds under section 13 before the award was made and did not do so, or if those grounds were the subject of an unsuccessful challenge.
(5) The court shall not set aside an award on a ground to which the applicant is deemed under section 4 to have waived the right to object.
(6) If the ground alleged for setting aside the award could have been raised as an objection to the arbitral tribunal's jurisdiction to conduct the arbitration or as an objection that the arbitral tribunal was exceeding its authority, the court may set the award aside on that ground if it considers the applicant's failure to make an objection in accordance with Section 17 justified.
(7) When the court sets aside an award, it may remove the arbitral tribunal or an arbitrator and may give directions about the conduct of the arbitration.
(8) Instead of setting aside an award, the court may remit it to the arbitral tribunal and give directions about the conduct of the arbitration.
Section 48: (1) At any stage during or after an arbitration, on the application of a party who has not participated in the arbitration, the court may grant a declaration that the arbitration is invalid because,
(a) a party entered into the arbitration agreement while under a legal incapacity;
(b) the arbitration agreement is invalid or has ceased to exist;
(c) the subject matter of the dispute is not capable of being the subject of arbitration under Ontario law; or
(d) the arbitration agreement does not apply to the dispute.
(2) When the court grants the declaration, it may also grant an injunction against the commencement or continuation of the arbitration.
Section 50: (1) A person who is entitled to enforcement of an award made in Ontario or elsewhere in Canada may make an application to the court to that effect.
(2) The application shall be made on notice to the person against whom enforcement is sought, in accordance with the rules of court, and shall be supported by the original award or a certified copy.
(3) The court shall give a judgment enforcing an award made in Ontario unless,
(a) the thirty day period for commencing an appeal or an application to set the award aside has not yet elapsed;
(b) there is a pending appeal, application to set the award aside, or application for a declaration of invalidity; or
(c) the award has been set aside or the arbitration is the subject of a declaration of invalidity.
(4) The court shall give a judgment enforcing an award made elsewhere in Canada, unless,
(a) the period for commencing an appeal or an application to set the award aside provided by the laws of the province or territory where the award was made has not yet elapsed;
(b) there is a pending appeal, application to set the award aside or application for a declaration of invalidity in the province or territory where the award was made;
(c) the award has been set aside in the province or territory where it was made or the arbitration is the subject of a declaration of invalidity granted there; or
(d) the subject matter of the award is not capable of being the subject of arbitration under Ontario law.
(5) If the period for commencing an appeal, application to set the award aside, or application for a declaration of invalidity has not yet elapsed, or if such a proceeding is pending, the court may,
(a) enforce the award; or
(b) order, on such conditions as are just, that enforcement of the award is stayed until the period has elapsed without such a proceeding being commenced, or until the pending proceeding is finally disposed of.
(6) If the court stays the enforcement of an award made in Ontario until a pending proceeding is finally disposed of, it may give directions for the speedy disposition of the proceeding.
(7) If the award gives a remedy that the court does not have jurisdiction to grant or would not grant in a proceeding based on similar circumstances, the court may,
(a) grant a different remedy requested by the applicant; or
(b) in the case of an award made in Ontario, remit it to the arbitral tribunal with the court's opinion, in which case the arbitral tribunal may award a different remedy.
(8) The court has the same powers with respect to the enforcement of awards as with respect to the enforcement of its own judgments.
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