In this the last issue of The Lawyers Weekly, it is appropriate to focus on the future of arbitration legislation in Canada. Any such discussion necessarily begins by acknowledging the tremendous contributions of the Uniform Law
Conference of Canada, both historically and in the very recent past, to the
development of uniform arbitration legislation.
In the last three years, the ULCC has adopted both a Uniform International
Commercial Arbitration Act (UICAA) and a domestic Uniform Arbitration Act
(UAA). The interest these uniform acts have generated is substantial. Ontario is
already well on its way to adopting the former and the Toronto Commercial
Arbitration Society has recently formed a committee to consider and make recommendations with respect to the latter.
Both acts are actively under consideration in British Columbia with the object
of overhauling arbitration legislation in that province.
The UICAA and the UAA differ in a number of important respects. The object
of the uniform international act was to implement changes to the UNCITRAL
Model Law which had come into effect in 2006. The consensus was that those
changes should be implemented with as little deviation as possible so as to
remain consistent with the international consensus that caused UNCITRAL to
adopt the amendments. The uniform domestic act has a different history and
The previous UAA was adopted by the ULCC in 1990. Its stated objective was
to use the UNCITRAL Model Law as a model. However, the drafters found the
model law to be somewhat spartan and decided to “amplify” it. If one reads the
discussion papers that led to the 1990 UAA, one finds that some members of the
task force felt that domestic arbitration represented a “different value proposition.” The result is that the 1990 UAA contained a great deal that was not in the
model law, and about which various provinces ultimately could not agree when
implementing the 1990 UAA. The result is considerable variation among Canadian jurisdictions, particularly on key issues such as appeals on the merits from
arbitration awards and stays of court proceedings in the face of an arbitration
clause. Only the federal government adopted legislation which actually used the
model law as a model for both international and non-international arbitration:
see the Canadian Commercial Arbitration Act.
The new UAA, which was formally adopted by the ULCC last November, represents a major accomplishment. It brought together almost 30 of the most
respected arbitration practitioners across Canada, reviewed the deficiencies in
existing legislation over a year and a half, proposed solutions and tested them
with the broader arbitration community across Canada and developed a uniform
act that documents the resulting consensus.
The new UAA, together with the commentary, serves as an encyclopedia of all
of the current dysfunctions, large and small, which serve as recurrent irritants.
For the most part, these relate to creative ways in which lower courts use the
“amplified” language in existing arbitration legislation to interfere inappropriately with arbitration as an independent form of dispute resolution — and in the
process to disregard very progressive directives from the Supreme Court of Canada and many provincial courts of appeal. As Stefan Chripounoff sets out in his
article in this issue of The Lawyers Weekly, the new UAA, taken as a whole, is a
superb reaffirmation of key arbitration values.
Conference, Page 12
The future of Canadian arbitration
Two new acts are an opportunity to fix problems or change standards
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THE LAWYERS WEEKLY MARCH 31, 2017 • 11