1995 Quebec, QC
Civil Section Documents - Judicial Interpretation of the Uniform Arbitration Act
By Peter J.M. Lown, Q.C., Alberta Law Reform Institute
JUDICIAL INTERPRETATION OF THE UNIFORM ARBITRATION ACT1
The purpose of this memo is to evaluate the implementation and interpretation of the Uniform Arbitration Act in four jurisdictions (Alberta, Ontario, Saskatchewan and New Brunswick) with respect to the granting of stays and appeals.
A. Underlying Philosophy of the Uniform Arbitration Act
The underlying philosophy of the Uniform Arbitration Act is as follows:
1) people who enter into valid arbitration agreements should be held to those agreements;
2) the parties should have broad freedom to design the arbitral process as they see fit;
3) that process should nevertheless be fair to both parties; and
4) the award resulting from the arbitration should be readily enforceable, subject only to review for a specific list of fatal flaws of form or procedure.2
This memo is concerned only with the court intervention with the arbitration process (specifically, the granting of stays and appeals) and will therefore focus on sections 6,7,45 and 46 of the Uniform Arbitration Act ( see Appendix III).
B. Corresponding Legislation in Alberta, Ontario, Saskatchewan and New Brunswick
Alberta - Arbitration Act, S.A. 1991, c.A-43.1
Section 6 of Alberta's legislation adds four exceptions for court intervention in the arbitration process, namely:
(a) to assist the arbitration process;
(b) to ensure that an arbitration is carried on in accordance with the arbitration agreement;
(c) to prevent manifestly unfair or unequal treatment of a party to an arbitration agreement;
(d) to enforce awards.
s. 44(3) is also different from the Uniform Arbitration Act:
s.44(3) Notwithstanding subsections (1) and (2), a party may not appeal an award to the court on a question of law which the parties expressly referred to the arbitral tribunal for decision.
Ontario - Arbitration Act, S.O. 1991, c.17.
The only difference in Ontario's legislation is the addition of the phrase "does not deal with" to s.45(1).
s.45(1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the Court shall grant only if it is satisfied that,....
s.3 Allows parties to waive the right to an appeal on a question of law.
Saskatchewan - Arbitration Act, S.S. 1992, c.A-24.1
The only difference between Saskatchewan's legislation and the Uniform Arbitration Act is s.7 (s.6 in Uniform Act):
s.7 No court shall intervene in matters governed by this Act, except for the following purposes, as provided by this Act:
(a) to assist the conducting of arbitrations;
(b) to ensure that arbitrations are conducted in accordance with arbitration agreements;
(c) to prevent unequal or unfair treatment of parties to arbitrationagreements;
(d) to enforce awards.
s.4 Allows the parties to waive the right to an appeal on a question of law.
New Brunswick - Arbitration Act, S.N.B. 1992, c.A-10.1
There are no differences between New Brunswick's legislation and the Uniform Arbitration Act.
STAYS (SECTIONS 6 AND 7)
Overall, judicial interpretation tends to be following the intent of the legislation with respect to the granting of stays. That is, judges are taking a "hands-off" approach to granting stays unless they fall within one of the enumerated circumstances in the legislation. For a more detailed analysis of the jurisprudence, see Appendix I.
APPEALS AND SETTING ASIDE (SECTIONS 45 AND 46 OF UNIFORM ACT)
Generally, interpretation has been in keeping with the intent of the Model Act. However, there appear to be a few problems with section 45 with respect to when parties may appeal an award of an arbitrator, either in situations where the arbitration agreement specifically addresses appeals or is silent on the issue. In Ontario, the addition of the phrase "does not deal with" to s.45 has caused problems with interpretation of arbitration agreements. See Appendix II for a more detailed analysis of the jurisprudence.
RECOMMENDATIONS FOR CHANGES TO THE UNIFORM ARBITRATION ACT
In general, the underlying philosophy of the Uniform Act seems to be respected by the courts in all four jurisdictions. Judges do not appear to be eager, in most cases, to wade into the arbitration fray in light of the new legislation. If judicial interference does occur, it is often in the context of very unusual facts (ie. Deluce Holdings Inc. v. Air Canada (infra)).
However, some changes to the wording of sections 6,7 and 45 of the Uniform Act may clarify any confusion that presently exists and could result in judicial interpretation which is in keeping with the underlying logic of the Act.
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