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Toronto Commercial Arbitration Society Releases Final Report on Recommendations for Streamlining Arbitration in Ontario

The Arbitration Act Reform Committee (“AARC”) of the Toronto Commercial Arbitration Society recently released its final report with recommendations for streamlining arbitration in Ontario. The AARC’s mandate was to consider reform of Ontario’s Arbitration Act, 1991, as it relates to commercial arbitration. The final report includes a thorough set of recommendations for reforming the statutory framework, and, as a result, the conduct of commercial arbitrations in Ontario.

The AARC employed a three-stage process for considering, studying, and debating potential reforms to Ontario commercial arbitration. The Committee’s work in all three stages suggests that a single Act for all commercial arbitration in Ontario, whether domestic or international, is a viable possibility and would bring much-needed consistency to the conduct of commercial arbitrations.

Under Ontario’s current statutory framework, the Arbitration Act, 1991 treats domestic commercial arbitration the same as other types of arbitration, such as family, consumer, employment, statutory, and religious arbitration. International commercial arbitration is addressed separately in the International Commercial Arbitration Act, 2017. The separation of domestic and international commercial arbitrations introduces some incongruences, such as default rights of appeal in domestic commercial arbitrations compared to opt-in rights of appeal in international commercial arbitration. The Committee observed that opt-in rights of appeal are more easily justified in commercial arbitration than in other types of arbitration where party autonomy is less of a reality, such as family or statutory arbitrations. This is only one reason it would make sense to treat all commercial arbitrations in Ontario similarly.

The AARC’s recommendations are practical and focused on streamlining the conduct of arbitration in Ontario. For example, the AARC suggests a straightforward procedure for enforcing arbitral awards through court application. The AARC also recommends that appeals of all commercial arbitrations seated in Ontario be limited to questions of law, and only if the arbitration agreement so provides. Furthermore, any such right of appeal should be without leave to the Court of Appeal for Ontario. The AARC report contains proposed statutory language for these and other recommendations in Appendix D to the report.

The full report and recommendations are worth reading for those conducting arbitrations seated in the Province of Ontario. While it remains to be seen whether the Ontario legislature will adopt any of the AARC’s recommendations, the Committee is to be commended on the significant time and effort devoted to preparing such a comprehensive report. Adopting these recommendations would be worthwhile, as doing so would simplify the conduct of commercial arbitrations upfront and limit disputes over appeals, resulting in increased certainty for which commercial arbitration is frequently chosen in the first place.

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