ADR Institute of Canada, Inc. Institut d‘Arbitrage et de Médiation...

ADR Institute of Canada, Inc.Institut d‘Arbitrage et de Médiation du Canada Inc.

ADR Institute of Canada, Inc. © 2008/10/1 1

I. MODEL DISPUTE RESOLUTION CLAUSE

Parties who agree to arbitrate under these NationalArbitration Rules may use the following clause intheir agreement:

All disputes arising out of or in connection withthis agreement, or in respect of any legal rela-tionship associated with or derived from thisagreement, shall be finally resolved by arbitra-tion pursuant to the National Arbitration Rulesof the ADR Institute of Canada, Inc. [the Sim-plified Arbitration Rules of the ADR Institute ofCanada, Inc.]. The place of arbitration shallbe [specify City and Province of Canada].The language of the arbitration shall beEnglish or French [specify language].

II. VARIATION OF RULES

Parties should examine the National ArbitrationRules to ensure that all the provisions are suitableand appropriate in the circumstances and conformto the law governing the arbitration. With certainspecified exceptions, the Rules may be varied, byagreement.

ADR Institute of Canada, Inc.© 2008/10/12

1. Purpose .......................................................................... 32. Interpretation ................................................................. 33. Application .................................................................... 44. Time ............................................................................... 45. Administrative Fees Schedule ...................................... 46. Delivery of Documents ................................................. 57. Communications with Tribunal .................................... 58. Communications between Parties ................................ 59. Address for Delivery of Documents ............................. 510. Waiver of Right to Object ............................................. 511. Arbitration under Agreement ........................................ 612. Arbitration by Submission ............................................ 613. Commencement Date .................................................... 714. Appointment of Tribunal .............................................. 715. Appointment by Institute .............................................. 816. Independence and Impartiality ..................................... 817. Substitution ................................................................... 918. Challenges ..................................................................... 919. Representation ............................................................ 1020. Place of Arbitration ..................................................... 1021. Language of Arbitration .............................................. 1022. Pre-arbitration Meeting ............................................... 1023. Conduct of the Arbitration .......................................... 1124. Jurisdiction .................................................................. 1125. No Waiver of Right to Object ..................................... 1126. General Powers of Tribunal ........................................ 1227. Exchange of Statements .............................................. 1228. Amendment of Statements .......................................... 1329. Production of Documents ........................................... 1430. Pre-hearing Examinations and Interrogatories ........... 1431. Agreed Statement of Facts .......................................... 1432. Arbitration Hearings ................................................... 1433. Confidentiality ............................................................ 1534. Evidence ...................................................................... 1535. Witnesses ..................................................................... 1536. Tribunal’s Experts ....................................................... 1637. Default of a Party ........................................................ 1638. Formal Without Prejudice Offers of Settlement ........ 1739. With Prejudice Offers ................................................. 1740. Deposits Against Costs ............................................... 1741. Payment out of Deposits ............................................. 1742. Closure of Hearings .................................................... 1843. Settlement .................................................................... 1844. Award .......................................................................... 1845. Interest ......................................................................... 1946. Costs ............................................................................ 1947. Amendments and Corrections to the Award ............... 1948. Immunity ..................................................................... 2049. Simplified Arbitration Procedure ............................... 20SCHEDULE “A” ................................................................ 22SCHEDULE “B” ................................................................. 22


1. PURPOSE

The purpose of the Rules is to enable the parties to adispute to achieve a just, speedy and cost effectivedetermination of matters in dispute, taking into ac-count the values that distinguish arbitration from liti-gation.

2. INTERPRETATION

In the Rules:

“Act” means any applicable arbitration legislationof the place of arbitration unless otherwiseagreed by the parties.

“Arbitrator” means a person appointed to serve asan arbitrator of a dispute pursuant to the Rules.

“Chair” means the person elected or appointed tochair the Tribunal.

“Commencement Date” means the date the arbitra-tion is deemed to commence under Rule 13.

“Counterclaim” means the Counterclaim referred toin Rule 27.

“Document” has an extended meaning and includesa photograph, film, recording of sound, any recordof a permanent or semi-permanent character andany information recorded or stored by means ofany device, including data and information in an elec-tronic form.

“Institute” means the ADR Institute of Canada, Inc.

“Rules” means the National Arbitration Rules andamendments made by the ADR Institute of Canada,Inc. from time to time.

“Statement of Claim” means the Statement of Claimreferred to in Rule 27.

“Statement of Defence” means the Statement ofDefence referred to in Rule 27.

“Statement of Defence to Counterclaim” means theStatement of Defence to Counterclaim referred to inRule 27.

“Tribunal” means either a sole Arbitrator or a panelof Arbitrators, as the case may be, appointed toserve as the arbitrator or arbitrators of a dispute

NATIONAL ARBITRATION RULES


pursuant to the Rules.

3. APPLICATION

(a) The Rules shall apply where the parties haveagreed that the National Arbitration Rules of theADR Institute of Canada apply. If the Rules areamended by the Institute, the Rules applicableto any dispute shall be the Rules as amended asof the Commencement Date. To the extent thatthe Rules conflict with the Act, the provisionsof the Rules shall apply except to the extent thatthe parties may not lawfully contract out of theprovision of the Act. The parties may agree inwriting to vary or exclude any of the Rules ex-cept Rules 3, 5, 7(a), 10, 11, 12, 16(b), 23(b),40, 41, 46, 48 and Schedule A.

(b) A reference in an arbitration agreement to thearbitration rules of the Canadian Foundation forDispute Resolution, Inc., The Arbitrators In-stitute of Canada, The Arbitration and Me-diation Institute of Canada, The Arbitratorand Mediators Institute of Ontario, or The Ca-nadian Arbitration Association shall be deemedto be a reference to the Rules.

(c) A failure to comply with the Rules is an irregu-larity and does not render an arbitration or a step,document or award in the arbitration a nullity.

4. TIME

(a) In the Rules, where the time for doing an actfalls or expires on a holiday, the time is extendedto the next day that is not a holiday. In the cal-culation of time, the first day shall be excludedand the last day included.

(b) The parties may modify any period of time byagreement.

5. ADMINISTRATIVE FEES SCHEDULE

By agreeing to the Rules, the parties agree that thearbitration shall be administered by the Institute. TheInstitute shall prescribe from time to time fees tocompensate it for its administrative services. The feesin effect when the fee or charge is incurred shall beapplicable. The current administrative fees are setout in Schedule “A”. All such fees are payable at thetime specified for payment in Schedule “A”.


6. DELIVERY OF DOCUMENTS

Any document required by the Rules to be deliveredmay be delivered either by personal delivery, mail,e-mail or facsimile to the address provided underRule 9. If delivered by personal delivery, deliveryshall be deemed to have been effected on the day ofsuch delivery to a party at its regular place of busi-ness or mailing address or that of its legal coun-sel where applicable. If delivered by mail, exceptfor confirmation copies of documents delivered bye-mail or facsimile, delivery shall be deemed to havebeen effected 2 days following the date of mailing.If by e-mail or facsimile, delivery shall be deemedto have been effected when sent. A confirmation copyof any such document shall be delivered by mail inthe case of any electronic transmission.

7. COMMUNICATIONS WITH TRIBUNAL

(a) A copy of any communication between the Tri-bunal and the parties or other representativesshall be delivered to the Institute.

(b) No party or person acting on behalf of a partyshall have a communication with the Tribunalin the absence of any other party concerning thesubstance of the dispute or any contentiousmatter relating to the proceeding.

8. COMMUNICATIONS BETWEEN PARTIES

Parties to an arbitration under the Rules may deliverany written communications required or permittedunder the Rules by personal delivery, by mail, e-mailor by facsimile to a party at its regular place of busi-ness or mailing address. A confirmation copy of suchcommunications shall be sent by mail in the case ofany electronic transmission, unless otherwise agreedby the parties or directed by the Tribunal.

9. ADDRESS FOR DELIVERY OF DOCUMENTS

The parties shall provide to one another and to theInstitute a full mailing address, telephone number,facsimile number and e-mail address, as may be ap-plicable.

10. WAIVER OF RIGHT TO OBJECT

A party that knows that any provision of, or require-ment under, the Rules has not been complied withand yet proceeds with the arbitration withoutpromptly stating an objection shall, unless the Tri-


bunal otherwise orders, be deemed to have waivedits right to object.

11. ARBITRATION UNDER AGREEMENT

Where a dispute falls under an arbitration clause oragreement, a party, as claimant, may submit that dis-pute to arbitration by delivering a written Notice ofRequest to Arbitrate to each respondent at the ad-dress specified by each respondent under the agree-ment or the last known mailing address or place ofbusiness of each respondent and to the Institute. TheNotice of Request to Arbitrate shall contain:

(a) the names, place of business or mailing ad-dresses, telephone numbers, fax numbers ande-mail addresses of the parties to the dispute, ifknown;

(b) a concise statement of the matters in dispute ora Statement of Claim;

(c) a request that the described dispute be referredto arbitration;

(d) an estimate of the amount claimed, or failingthat, of the value of what is in issue in thedispute, unless the claimant cannot make an es-timate of such value in which case the reasonfor this must be set out in detail;

(e) the remedy sought;

(f) the number and names of Arbitrators agreedupon, if any;

(g) the required qualifications of the Arbitrators, asagreed by the parties, if any; and

(h) any variation of the Rules that has been agreedin writing.

Appended to the Notice of Request to Arbitrate shallbe a copy of the arbitration clause or agreement re-lied upon and a copy of the contract, if any, in rela-tion to which the dispute has arisen.

12. ARBITRATION BY SUBMISSION

(a) Parties to a dispute may submit that dispute toarbitration by filing a Notice of Submission toArbitration with the Institute. The Notice ofSubmission to Arbitration shall contain the in-formation described in Rule 11(a) to 11(h).

(b) The Notice of Submission to Arbitration shallbe signed by the parties to the dispute. Appended


to the Notice of Submission to Arbitration shallbe a copy of the contract, if any, in relation towhich the dispute has arisen.

13. COMMENCEMENT DATE

The arbitration is deemed to have commenced whena Notice of Request to Arbitrate or a Notice ofSubmission to Arbitration has been filed withthe Institute and the initial filing fee has been paid.The Institute shall notify the parties when an arbi-tration has been commenced and shall deliver to thema Notice of Commencement of Arbitration.

14. APPOINTMENT OF TRIBUNAL

(a) If the parties have not agreed on the number ofArbitrators within 10 days after the Commence-ment Date, the dispute shall be determined by asingle Arbitrator;

(b) Any party may at any time request the Instituteto provide to all parties a list of not fewer than 3individuals from which the parties may agreeto select an Arbitrator.

(c) Where a single Arbitrator is to be appointed, ifthe parties cannot agree on the single Arbitratorwithin 14 days after the Commencement Date,either party may then request the Institute tomake such appointment.

(d) Where the parties have agreed to appoint threeArbitrators:

(i) unless otherwise agreed by the parties,each party shall appoint one Arbitratorand the two Arbitrators shall jointly ap-point the third Arbitrator who shall actas the Chair of the Tribunal;

(ii) if a party fails to make a required ap-pointment within the time agreed uponbetween the parties or, if no time isagreed, 21 days from the Commence-ment Date, then a party may request theInstitute to make the required appoint-ment;

(iii) if the parties or Arbitrators appointedby the parties, as the case may be, areunable to agree on the appointmentof a third Arbitrator within the timeagreed by the parties or, if no time is


agreed within 30 days from the Com-mencement Date, then a party mayrequest the Institute to make the re-quired appointment.

15. APPOINTMENT BY INSTITUTE

Where the Institute is asked to appoint an Arbitra-tor, unless it determines otherwise, the followingprocedure shall apply:

(a) the Institute shall deliver to the parties an iden-tical list containing at least 3 names;

(b) within a period of 10 days following receipt ofthe list referred to in paragraph (a), each partyshall deliver the list to the Institute after havingdeleted any name to which it objects and num-bered the remaining names on the list in the or-der of its preference;

(c) if a party has not advised the Institute within 10days that it objects to any of the names sug-gested, it shall be deemed conclusively to haveaccepted those names;

(d) after the 10-day period referred to in paragraph(b), the Institute shall appoint the Arbitrator fromthe remaining names on the lists returned to it,taking into account the order of preference in-dicated by the parties. Notwithstanding Rule15(a) the Institute may, in its discretion, deliverto the parties one further list containing at least3 names, and the procedure set out in Rules15(b) (c) (d) shall then apply in respect of thatfurther list.

In appointing an Arbitrator, the Institute shall havedue regard to the qualifications requested by theparties, the nature of the contract, the nature andcircumstances of the dispute and any other consid-erations likely to secure the appointment of a quali-fied, independent and impartial Arbitrator.

16. INDEPENDENCE AND IMPARTIALITY

(a) Unless otherwise agreed by the parties an Arbi-trator shall be and remain at all times whollyindependent.

(b) An Arbitrator shall be and remain wholly im-partial and shall not act as an advocate for anyparty to the arbitration.


(c) Every person must, before accepting an appoint-ment as Arbitrator, sign and deliver to the par-ties a statement declaring that he or she knowsof no circumstances likely to give rise to justi-fiable doubts as to his or her independence orimpartiality and that he or she will disclose anysuch circumstances to the parties if they shouldarise after that time and before the arbitration isconcluded. No Arbitrator shall be disqualifiedor subject to challenge by reason of one or moreof the Arbitrator, counsel, party or representa-tive of a party being a member, officer or direc-tor of the Institute.

17. SUBSTITUTION

If an Arbitrator refuses to act, is incapable of acting,withdraws from office, is removed from office byorder of the court or dies, the Institute may, onsubmission of satisfactory evidence, declare the of-fice vacant. A substitute Arbitrator shall be appointedaccording to the provisions of the Rules, or the agree-ment of the parties, that were applicable to the ap-pointment of the Arbitrator being replaced.

Where a single Arbitrator or Chair is replaced, anyhearings previously held shall be repeated. Whereany other Arbitrator is replaced, any hearings previ-ously held may be repeated at the discretion of theArbitrators.

18. CHALLENGES

An Arbitrator may be challenged if circumstancesexist that give rise to justifiable doubts as to his orher independence or impartiality, or if he or she doesnot possess the qualifications agreed upon by theparties.

A party who intends to challenge an Arbitrator shall,within 7 days after becoming aware of the appoint-ment, or after becoming aware of any circumstancesreferred to in this Rule, send a written statement ofthe challenge and the reasons for the challenge tothe Tribunal, if it has been fully constituted, and tothe Institute. If the challenged Arbitrator withdrawsor the other party agrees to the challenge, the man-date of the Arbitrator terminates.

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, thesingle Arbitrator shall decide on the challenge. Ifthere is a three-person panel the Chair, if he or she isnot challenged, shall decide the challenge. If theChair is challenged, all the Arbitrators may decidethe challenge.

19. REPRESENTATION

Where a party intends to be represented or assistedby a lawyer, that party shall, in writing, advise theother party and the Institute of the lawyer’s name,address, telephone number, facsimile number, e-mailaddress and the capacity in which he or she is actingat least 5 days before any scheduled hearing or meet-ing.

20. PLACE OF ARBITRATION

The parties may agree in writing on the place of ar-bitration. If no place is agreed upon, the place ofarbitration shall be at the discretion of the Tribunal.The Tribunal may meet at any other place it consid-ers convenient or necessary for consultation, to hearwitnesses, experts or the parties or for the inspec-tion of documents, goods or other property. Part orall of the arbitration may be conducted by telephone,e-mail, internet or electronic communication ifagreed to by the parties or directed by the Tribunal.

21. LANGUAGE OF ARBITRATION

The parties may agree, in writing, on the languageof the arbitration. If no such language of the arbitra-tion is agreed upon, the Tribunal may specify thelanguage of the arbitration.

22. PRE-ARBITRATION MEETING

Within 14 days of its appointment, the Tribunal shallconvene a pre-arbitration meeting, unless the par-ties deliver to the Institute a notice, in writing, thatthey do not wish a pre-arbitration meeting.

At the pre-arbitration meeting the parties shall:

(a) identify the issues in dispute;

(b) set the procedure to be followed in the arbitra-tion; and

(c) establish time periods for taking steps to dealwith any matter that will assist the parties tosettle their differences or to assist the arbi-tration to proceed in an efficient and expedi-tious manner.


The pre-arbitration meeting may take place by con-ference telephone call, video conferencing or othermeans directed by the Tribunal.

The Tribunal shall record any agreements or ordersmade at the pre-arbitration meeting and shall, within7 days of that meeting, deliver a written record ofsuch agreements or orders to each of the parties andfile a copy with the Institute.

23. CONDUCT OF THE ARBITRATION

(a) Subject to the Rules, the Tribunal may conductthe arbitration in the manner it considers appro-priate.

(b) Each party shall be treated fairly and shall begiven a fair opportunity to present its case.

(c) The Tribunal shall strive to achieve a just,speedy and cost effective determination of ev-ery proceeding on its merits, taking into accountRule 1.

(d) A transcript or videotape of the proceedings shallbe prepared if requested by either party in writ-ing at least 5 days before the commencement ofthe hearing. Any such transcript or videotapeshall be at the expense of the party requestingit. If a transcript or video tape has been requestedby a party pursuant to this Rule, every otherparty and the Tribunal shall be entitled to ob-tain a copy of the transcript or videotape uponpayment of the costs of reproduction of the tran-script or videotape.

24. JURISDICTION

The Tribunal may rule on its own jurisdiction, in-cluding ruling on any objections with respect to theexistence or validity of the arbitration agreement,and for that purpose,

(a) an arbitration clause that forms part of a con-tract shall be treated as an agreement indepen-dent of the other terms of the contract, and

(b) a decision by the Tribunal that the contract isnull and void shall not entail the invalidity ofthe arbitration clause unless specificallyfound by the Tribunal.

25. NO WAIVER OF RIGHT TO OBJECT

A party is not precluded from raising a jurisdictional


issue by the fact that it has appointed, or participatedin the appointment of, an Arbitrator.

26. GENERAL POWERS OF TRIBUNAL

The Tribunal may:

(a) order an adjournment of the proceedings fromtime to time;

(b) make an interim award on any matter with re-spect to which it may make a final award;

(c) grant such interim measures of protection as itdeems appropriate, including an order for secu-rity for costs, for the posting of security for theamount claimed or for preservation of propertythat is the subject matter of the dispute;

(d) make an award or interim award granting equi-table relief, injunctions or specific performanceon such terms as may be just;

(e) order inspection of documents, exhibits or otherproperty;

(f) order the taking down and recording of a tran-script of any oral hearing;

(g) at any time extend or abridge a period of timefixed or determined by it, or any period of timerequired in the Rules, except the time withinwhich the award is to be made, where it consid-ers it just and appropriate in the circumstances;

(h) empower one member of the Tribunal to hearmotions and make procedural orders, includingthe settling of matters at the pre-arbitration hear-ing, that do not deal with the substance of thedispute;

(i) request further statements clarifying issues indispute;

(j) give such direction with respect to proceduralmatters having regard to Rule 1; and

(k) request from a court of competent jurisdictionassistance in taking evidence.

27. EXCHANGE OF STATEMENTS

On the Commencement Date, or within 14 daysthereafter, the claimant must deliver a written state-ment (Statement of Claim) to each respondent, theTribunal and the Institute setting out the materialfacts supporting its claim, the points in issue and the


relief or remedy sought, provided however that ifno Tribunal has been appointed within 14 days ofthe Commencement Date, then a copy of the State-ment of Claim must be delivered to the Tribunalforthwith upon its appointment.

Within 14 days after each respondent receives theStatement of Claim, that respondent shall deliver awritten statement outlining its defence (Statementof Defence) and a written statement of any counter-claim (Counterclaim), to the claimant, the Tribunaland the Institute. The Statement of Defence or Coun-terclaim shall set out the material facts supportingthe defence or counterclaim, the points in issue andthe relief or remedy sought. Any Statement of De-fence or Counterclaim shall be accompanied by pay-ment to the Institute of the required case service feecalculated in accordance with Schedule “A”. Theclaimant shall deliver to the Tribunal and theInstitute its Statement of Defence to Counter-claim within 14 days after receiving the Counter-claim. The Statement of Defence to Counterclaimshall set out the material facts supporting the de-fence, the points in issue and the relief or remedysought.

If a respondent, or a claimant, fails to deliver a State-ment of Defence or a Statement of Defence to Coun-terclaim, as the case may be, it shall be deemed todeny the allegations in the Statement of Claim orCounterclaim as the case may be.

Each party shall submit with its statement a prelimi-nary list of relevant documents in accordance withRule 29 taking into account Rule 1. The type,date, author, recipient and subject matter of eachdocument must be specified. Documents not so iden-tified may be subject to exclusion from the proceed-ings at the Tribunal’s discretion.

28. AMENDMENT OF STATEMENTS

The Tribunal, upon such terms as it deems appropri-ate, may allow a party to amend or supplement itsStatement of Claim, Statement of Defence, Coun-terclaim, or Statement of Defence to Counterclaimduring the course of the arbitration unless the Tribu-nal considers the delay in amending or supplement-ing the claim to be prejudicial to a party or unless itconsiders that the amendment or supplement goes


beyond the terms of the arbitration agreement orsubmission to arbitrate.

29. PRODUCTION OF DOCUMENTS

Each party shall disclose all documents relating tothe matters in issue in the arbitration that are or havebeen in the party’s possession, control or power,within 15 days after the date of delivery of the State-ment of Defence or the Statement of Defence toCounterclaim, whichever is later, unless the Tribu-nal orders otherwise. Where the Tribunal considersthat the disclosure of all such documents is unnec-essary, unduly costly or burdensome or for other rea-son is inconsistent with Rule 1, the Tribunal maygive directions to limit the scope of disclosure ofdocuments.

The Tribunal may, on application, order a party toproduce any documents the Tribunal considers rel-evant to the arbitration within a time it specifies,and where such order is made the other party mayinspect those documents and take copies of them.

30. PRE-HEARING EXAMINATIONS

AND INTERROGATORIES

The Tribunal may, on such terms as it deems justand appropriate, order a party or a representative ofa party to submit to an oral examination under oathor to respond by sworn statement to written inter-rogatories, on such issues as may be ordered by theTribunal taking into account Rule 1. The Tribunalshall, at the time of making any such order, deter-mine the use that may be made of the evidence takenon any such examination or in responses.

31. AGREED STATEMENT OF FACTS

The parties shall, within a period of time specifiedby the Tribunal, identify those facts that are not indispute and submit to the Tribunal and file with theInstitute an agreed statement of facts.

32. ARBITRATION HEARINGS

The Tribunal shall set the dates for any interim hear-ings or meetings, whether oral or not, and shall, ex-cept in cases of urgency, give at least 4 days writtennotice thereof to the parties and the Institute. TheTribunal may direct that all evidence and argumentbe given in writing and may dispense with an oralhearing.


33. CONFIDENTIALITY

The parties, the witnesses and the Arbitrators shalltreat all meetings and communications, the proceed-ings, documents disclosed in the proceeding, discov-ery and the awards of the Tribunal as confidential,except in connection with a judicial challenge to, orenforcement of, an award, and unless otherwise re-quired by law. Nothing in this Rule shall precludedisclosure of such information to a party’s insurer,auditor, lawyer or other person with a direct finan-cial interest in the arbitration. The parties shall usesuch information solely for the purposes of the arbi-tration, and shall not use or allow it to be used forany other purpose unless the parties agree otherwiseor unless otherwise required by law.

After the delivery of an award the Institute may makea written request to the parties for their consent tothe publication by the Institute of the award or ex-tracts from it. Should a party fail to respond to sucha request within 45 days of the date of request thenit shall be deemed to have consented to the request.

34. EVIDENCE

The parties may offer such evidence as is relevantand material to the dispute and shall produce suchevidence under oath as the Tribunal may deem nec-essary to an understanding and determination of thedispute. The Tribunal may be guided by the rules ofevidence applicable in court proceedings, but con-formity with the rules of evidence is not required.All evidence shall be taken in the presence of theTribunal and all of the parties, except where any ofthe parties is voluntarily absent, in default or haswaived the right to be present.

The Tribunal shall determine the admissibility, rel-evance, materiality and weight of the evidence of-fered and may exclude evidence that the Tribunaldeems to be repetitive.

35. WITNESSES

The Tribunal may determine the manner in whichwitnesses are to be examined, and save for a partyor the person nominated as that party’s representa-tive for the purpose of the arbitration, may requirewitnesses to absent themselves from an oral hearingduring the testimony of other witnesses.

Where the evidence of a witness is presented by


written statement or sworn declaration, the Tribunalmay order that the witness be present at an oral hear-ing for cross examination.

36. TRIBUNAL’S EXPERTS

The Tribunal may appoint one or more independentexperts to report on specific issues to be determinedby the Tribunal and may require a party to give theexpert any relevant information or to produce, or toprovide access to, any relevant documents, goods orother property for its inspection.

The Tribunal shall communicate the expert’s termsof reference to the parties. Any dispute as to the termsof reference or the relevance of the required infor-mation, or production of it, shall be referred to theTribunal for decision. The cost of any such expertshall be borne by the parties on a basis determinedby the Tribunal.

Upon receipt of the expert’s report in writing, theTribunal shall deliver a copy of it to the parties whoshall be given the opportunity to challenge all or anypart of it in a manner determined by the Tribunal.

The expert shall, on the request of a party, makeavailable to that party for examination all documents,goods or other property in the expert’s possessionthat the expert has used to prepare the report andshall provide that party with a list of all documents,goods or other property not in the expert’s posses-sion, but that were provided to prepare the report,and a description of the location of those documents,goods or other property.

An expert shall, after delivery of the report, be re-quired to attend for the purpose of cross examina-tion on some or all of the contents of that report,unless the parties agree that such cross-examinationis not required.

37. DEFAULT OF A PARTY

Where a party, without sufficient cause, fails to ap-pear at a hearing, pay the fees of the Institute, or toproduce evidence, the Tribunal may continue thearbitration on such terms as the Tribunal deemsappropriate after satisfying itself that a reason-able attempt has been made to communicate withthe defaulting party. The Tribunal shall make anaward based upon the evidence before it.


38. FORMAL WITHOUT PREJUDICE

OFFERS OF SETTLEMENT

At any time before the hearing on the merits, a partymay deliver to the other party an offer marked “with-out prejudice” to settle one or more of the issuesbetween it and any other party on the terms speci-fied in the offer. An offer to settle may specify atime within which it may be accepted and it willexpire if not accepted within that time.

The Tribunal shall take into consideration the offer,the time at which the offer was made and the extentto which it was accepted when dealing with ques-tions of costs and interest.

No party shall inform the Tribunal of the fact that anoffer had been made under this Rule until after allissues in the arbitration other than costs have beendetermined.

39. WITH PREJUDICE OFFERS

The parties may deliver written offers marked “withprejudice” at any time, and all such offers may beput in evidence at the arbitration hearing.

40. DEPOSITS AGAINST COSTS

The Tribunal may, directly or through the Institute,from time to time, require the parties to deposit bycash, certified cheque, or irrevocable letter of credit,to the Institute in trust, equal amounts as an advancefor the anticipated costs and expenses of the arbitra-tion including the Tribunal’s fees and expenses.

If the required deposits are not made within 15 daysafter receipt of the request, the Tribunal or the Insti-tute shall inform the parties so that another partymay make the required payment.

If the required deposits are not made within 30 daysafter receipt of the request, the Tribunal may con-tinue the arbitration under Rule 37 or order the sus-pension or termination of the proceeding.

41. PAYMENT OUT OF DEPOSITS

The Institute may, from time to time, pay to the Tri-bunal from any deposit it holds, any amount it con-siders reasonable and appropriate for fees earned orexpenses incurred by the Tribunal.

After the final award has been made, a settlementhas been reached or the arbitration abandoned or


otherwise finally disposed of, the Institute shallapply any deposits it holds to the costs of thearbitration, including any unpaid Tribunal fees andadministrative fees, render an accounting to the par-ties of the deposits received and applied and returnany unexpended balance to the parties in proportionto their contributions or as may be directed by theTribunal in the final award.

42. CLOSURE OF HEARINGS

Where the parties have, on inquiry, advised they haveno further evidence to give or submissions to make,or the Tribunal considers further hearings to be un-necessary or inappropriate, the Tribunal may closethe hearings.

On its own motion or on the application of a party,the Tribunal may, in exceptional circumstances, re-open the hearings to receive evidence or submissionsconcerning a matter at any time before the issuanceof a partial final award or final award concerningthat matter.

43. SETTLEMENT

The Tribunal may encourage settlement of the dis-pute and, with the written agreement of the parties,may order that mediation, conciliation or other pro-cedures be used by the parties at any time during thearbitration proceedings to encourage settlement.

If, during the arbitration proceedings, the partiessettle the dispute, the Tribunal shall, upon receivingconfirmation of the settlement or determining thatthere is a settlement, terminate the proceedings and,if requested by the parties, record the settlement inthe form of an arbitration award on agreed terms.

44. AWARD

The Tribunal may make a partial final award finallydetermining an issue or part of a dispute.

The Tribunal may make an interim award that shallsubsequently be incorporated into and become partof a final award.

The Tribunal shall make its final award with respectto the matters determined in the award within 60days after the hearings have been closed or such fur-ther period as may:

(a) be agreed to in writing by the parties, or


(b) be directed by a court of competent jurisdiction.

Awards of the Tribunal shall be in writing and shall,unless the parties otherwise agree, state the reasonsupon which they are based. The Tribunal shall de-liver to the Institute sufficient originally signed cop-ies of any award for each party. Upon payment ofall outstanding Institute and Tribunal fees and ex-penses, copies of the award will be delivered to theparties by the Institute.

Where the Tribunal consists of more than two Arbi-trators, the award shall be made by a majority of theTribunal. Where there is no majority decision, thedecision of the Chair of the Tribunal shall be theaward.

45. INTEREST

The Tribunal may order interest to be paid in anaward for such time and in such amount as it con-siders just and reasonable.

46. COSTS

The Tribunal shall be entitled to fix the costs andexpenses of the arbitration, including reasonable le-gal fees, the costs and expenses of the arbitrationand the Tribunal, and the fees of the Institute. If costsand expenses are awarded, such costs and expensesshall be made part of the award. The Tribunal shallbe entitled to make separate awards for legal costsand the fees and expenses of the arbitration and shallbe entitled to apportion costs and expenses betweenthe parties.

47. AMENDMENTS AND CORRECTIONS

TO THE AWARD

A Tribunal may, on the application of a party or onits own initiative, amend or vary an award or in-terim award to correct:

(a) a clerical or typographical error;

(b) an accidental error, slip, omission or other simi-lar mistake; or

(c) an arithmetical error made in a computation.

An application by a party to amend or vary shall bemade within 15 days after that party is notified ofthe award.

An amendment or variation shall not, without theconsent of the parties, be made more than 30 days


after the parties have been notified of the award.

A party may, within 15 days after being notified ofthe award, apply to the Tribunal for clarification ofthe award, and the Tribunal may clarify the awardwhere it considers it appropriate, in which case theclarification becomes part of the award.

A party may, within 30 days after receiving theaward, apply to the Tribunal to make an additionalaward with respect to claims presented in the pro-ceedings but omitted from the award.

An amended, varied or additional award shall be filedby the Tribunal with the Institute.

Unless otherwise agreed, the award of the Tribunalshall be final and binding and there shall be no ap-peal.

48. IMMUNITY

Neither the Institute nor the Tribunal shall be liableto any party for any act or omission in connectionwith any arbitration conducted under the Rules. TheTribunal and the Institute shall have the same pro-tections and immunity as a Judge of the SuperiorCourt in the province or territory in which the arbi-tration takes place.

49. SIMPLIFIED ARBITRATION PROCEDURE

(a) Where the parties agree in writing the arbitra-tion shall be conducted in accordance with thissimplified procedure section and Schedule “B”to the Rules.

(b) The time periods for a simplified procedure ar-bitration, other than those time periods specifi-cally provided for under sub-rules (c), (d) and(j) of this Rule, shall be those set out in Sched-ule “B”.

(c) The simplified arbitration shall be conducted bya single Arbitrator appointed by the Institutewithin 14 days after the filing of the Submis-sion to Arbitration or Notice of Request to Ar-bitrate.

(d) Within 14 days of the appointment of the Arbi-trator, the Arbitrator shall convene a pre-ar-bitration meeting of the parties which maybe held by conference telephone call, videoconferencing or other means as the Arbitratormay direct to determine:


i. a timetable for the conduct and comple-tion of all pre-hearing and preliminarymatters in a period not to exceed 90 daysfrom the date of the commencement ofthe arbitration;

ii. the time and place of the hearing; and

iii. such other directions as may be neces-sary.

(e) Rules 14, 15, 22, 26(h), and 30 shall not applyto the conduct of the arbitration.

(f) Unless agreed by the parties or ordered by theArbitrator, there shall be no oral discovery.

(g) No transcript of the proceedings shall be re-quired.

(h) Sworn statements of evidence shall be filed atthe hearing in lieu of examination in chief andshall be subject to cross-examination and re-examination only.

(i) The record of the arbitration shall consist of thedocuments and exhibits produced and filed bythe parties.

(j) The Arbitrator shall deliver the award and rea-sons for the award within 14 days from thecompletion of the hearing.


SCHEDULE “A”

ARBITRATION ADMINISTRATIVE FEE SCHEDULE

Under the fee schedule, an Initial Filing Fee, pay-able by the filing party, and a Case Service Fee,payable by each party filing a defence or coun-terclaim, will cover all ADR Institute servicesfrom the time a case is filed until it is awarded orsettled. This fee schedule eliminates hearing andpostponement fees and miscellaneous expenses.

SCHEDULE “B”

SIMPLIFIED RULE TIME PERIOD


NOTES

ADR Institute of Canada, Inc.

Suite 500, 234 Eglinton

Avenue East

Toronto, Ontario M4P 1K5

Toll-free: 1-877-475-4353

Tel: 416-487-4733

Fax: 416-487-4429

Email: [email protected]

Internet: www.adrcanada.ca

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