Western Canada Commercial Arbitration Society: “New Act, New Rules, New World for BC Arbitrations”
On September 21st, 2020, the Western Canada Commercial Arbitration Society (WCCAS) presented a panel discussion entitled New Act, New Rules, New World for BC Arbitrations, as part of the inaugural Canadian Arbitration Week. The panel was composed of Joe McArthur (Blake, Cassels & Graydon LLP), Laura Cundari (Blake, Cassels & Graydon LLP), and Craig Chiasson (Borden Ladner Gervais LLP).
As of September 1st, 2020, all domestic arbitrations in British Columbia became subject to British Columbia’s dramatically revised Arbitration Act S.B.C 2020, c. 2 (the “BC Act”). On the same date, the British Columbia International Commercial Arbitration Centre’s (BCICAC) domestic arbitration rules came into force under its new name, Vancouver International Arbitration Centre (VanIAC). Together, the BC Act and VanIAC rules introduced new provisions for expedited proceedings, emergency arbitrators, and optional appeals.
Laura Cundari explained that the new amendments to both the BC Act and VanIAC Rules substantially modernized the previous arbitration framework. Based on the UNCITRAL Model Law, these provisions are expected to increase the compatibility of British Columbia’s arbitration legislation with international standards.
Next, Craig Chiasson summarized some of the provisions introduced by the new BC Act. Unlike the previous legislation, the BC Act allows arbitrators to summarily award costs (s.50 ) and award compound interest (s.51). Where the tribunal has not received full payment of its fees and expenses, arbitrators can withhold their awards (s.52). Furthermore, arbitrators are able to award equitable remedies even if the parties have not expressly contracted for them (s.25(4)).
Chiasson also introduced the changes to the appeal procedure introduced by the BC Act. When challenging an arbitral award on a question of law, the BC Court of Appeal has the sole jurisdiction to grant leave to appeal (s.59). However, the BC Supreme Court preserves its jurisdiction to set aside awards on specific grounds such as lack of procedural fairness. Moreover, parties must seek leave to appeal within 30 days of issuance of the award (s.60), which is half the period permitted by the old legislation.
Joe McArthur then introduced the VanIAC Domestic Arbitration Rules (formerly under the BCICAC). Prior to being amended, the domestic rules were separate from the previous BC Arbitration Act. As such, absent a party agreement to the contrary, the BCICAC administered all domestic arbitrations in British Columbia. From September 2020 onwards, the VanIAC domestic arbitration rules are to be read with the Arbitration Act. In particular, VanIAC has the power to appoint arbitrators and to make decisions regarding arbitrator fees (s.15).
Under the new BC Act, regardless of whether or not the arbitration is administered by VanIAC, the Vancouver International Arbitration Centre is the Designated Appointing Authority. However, domestic VanIAC rules create incentives for parties to rely on the Centre for administering the arbitration. For example, where an arbitration is administered by VanIAC, there is no additional cost for appointing an arbitrator. VanIAC also offers desirable flat fee arrangements for expedited arbitrations (s.24).
Next, Cundari expanded on the new VanIAC procedures surrounding appeals. Under the new VanIAC Domestic Arbitration Rules, parties can contract out of their right appeal to the Court of Appeal on questions of law (s.27). However, the VanIAC Domestic Arbitration Rules create an alternative appeal option, whereby the parties can expressly contract for an appeal tribunal process (s.31). This option brings flexibility to the parties, allowing them to specify particular grounds for appeal, and to contract for appeal on mixed questions of fact and law, not only on pure questions of law.
McArthur concluded the session by outlining the changes to VanIAC’s domestic arbitration rules as they pertain to emergency and early provisional relief. For example, where the tribunal has not yet been constituted, VanIAC will appoint an emergency arbitrator within two days of the Centre’s receipt of an application for an emergency interim measure (s.11(2)). Furthermore, under the powers granted by the BC Act, the parties can simultaneously apply for an ex parte preliminary order through VanIAC, which would restrain the party from frustrating the emergency relief order being sought in the application (s.10(a)).