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The Arbitration Act
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This version is current as of May 19, 2017.
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C.C.S.M. c. A120

The Arbitration Act

(Assented to June 28, 1997)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

INTRODUCTORY MATTERS

Definitions

1(1)        In this Act,

"arbitration agreement" means, subject to subsections (2) and (3), an agreement or part of an agreement by which two or more persons agree to submit a matter in dispute to arbitration; (« convention d'arbitrage »)

"arbitrator" includes an umpire; (« arbitre »)

"court" means the Court of Queen's Bench. (« tribunal judiciaire »)

Further agreement

1(2)        If the parties to an arbitration agreement make a further agreement in connection with the arbitration, it is deemed to form part of the arbitration agreement.

Effect of enactment

1(3)        Where a matter is authorized or required under an enactment to be submitted to arbitration, a reference in this Act to an arbitration agreement is a reference to the enactment, unless the context otherwise requires.

Application of Act

2(1)        This Act applies to an arbitration conducted under an arbitration agreement or authorized or required under an enactment unless

(a) the application of this Act is excluded by law; or

(b) Part II of the International Commercial Arbitration Act applies to the arbitration.

Conflict between enactments

2(2)        If there is a conflict between this Act and another enactment that authorizes or requires an arbitration, the other enactment prevails.

Exemption of Act by regulation

2(3)        The Lieutenant Governor in Council may by regulation exempt an Act from the application of this Act.

Contracting out

3           The parties to an arbitration agreement may agree, expressly or by implication, to vary or exclude any provision of this Act except the following:

(a) subsection 5(2) (equivalent agreement);

(b) section 19 (equality and fairness);

(c) section 39 (extension of time limit);

(d) subsection 44(2) (appeal on question of law with leave);

(e) section 45 (grounds for setting aside award);

(f) section 47 (declaration of invalidity of arbitration);

(g) section 49 (enforcement of award).

Waiver of right to object

4           A party to an arbitration who is aware of a non-compliance with a provision of this Act, except a provision referred to in section 3, or with the arbitration agreement, and who does not object to the non-compliance within the time limit provided or, if none is provided, within a reasonable time, is deemed to have waived the right to object.

Writing unnecessary

5(1)        An arbitration agreement need not be in writing.

Equivalent agreement

5(2)        An agreement requiring or having the effect of requiring that a matter be adjudicated by arbitration before it may be dealt with by a court has the same effect as an arbitration agreement.

Recission

5(3)        An arbitration agreement may be rescinded only in accordance with the law of contract.

COURT INTERVENTION

Court intervention limited

6           No court may intervene in matters governed by this Act, except for the following purposes, as provided by this Act:

(a) to assist the arbitration process;

(b) to ensure that an arbitration is carried on in accordance with the arbitration agreement;

(c) to prevent unfair or unequal treatment of a party to an arbitration agreement;

(d) to enforce awards.

Stay

7(1)        Subject to subsection (2), if a party to an arbitration agreement commences a proceeding in a court in respect of a matter in dispute to be submitted to arbitration under the agreement, the court shall, on the motion of another party to the arbitration agreement, stay the proceeding.

Refusal to stay

7(2)        The court may refuse to stay the proceeding in only the following cases:

(a) a party entered into the arbitration agreement while under a legal incapacity;

(b) the arbitration agreement is invalid;

(c) the subject-matter of the dispute is not capable of being the subject of arbitration under Manitoba law;

(d) the motion was brought with undue delay;

(e) the matter in dispute is a proper one for default or summary judgment.

Arbitration during motion

7(3)        An arbitration of the matter in dispute may be commenced and continued while the motion is before the court.

No arbitration if stay refused

7(4)        If the court refuses to stay the proceeding,

(a) no arbitration of the matter in dispute shall be commenced; and

(b) an arbitration that has been commenced shall not be continued, and anything done in connection with the arbitration before the court's refusal is without effect.

Partial stay

7(5)        The court may stay the proceeding with respect to the matters in dispute dealt with in the arbitration agreement and allow the proceeding to continue with respect to other matters if it finds that,

(a) the agreement deals with only some of the matters in dispute in respect of which the proceeding was commenced; and

(b) it is reasonable to separate the matters in dispute dealt with in the agreement from the other matters.

No appeal

7(6)        There is no appeal from the court's decision under this section.

Powers of court

8(1)        The court's powers with respect to the detention, preservation and inspection of property, interim injunctions and the appointment of receivers are the same in arbitrations as in court actions.

Determination of question of law

8(2)        The court may determine any question of law that arises during the arbitration on the application of the arbitral tribunal, or on a party's application if the other parties or the arbitral tribunal consent.

Appeal on question of law

8(3)        The court's determination of a question of law may be appealed to The Court of Appeal, with leave of that court.

Multiple arbitrations

8(4)        On the application of all the parties to more than one arbitration the court may order, on terms that it considers just,

(a) that the arbitrations be consolidated;

(b) that the arbitrations be conducted simultaneously or consecutively; or

(c) that any of the arbitrations be stayed until any of the others are completed.

Consolidation by order

8(5)        When the court orders that arbitrations be consolidated, it may appoint an arbitral tribunal for the consolidated arbitration, and if all the parties agree as to the choice of arbitral tribunal, the court shall appoint that arbitral tribunal

Consolidation by agreement

8(6)        Subsection (4) does not prevent the parties to more than one arbitration from agreeing to consolidate the arbitrations and doing everything necessary to effect the consolidation.

ARBITRAL TRIBUNAL

Number of arbitrators

9           If the arbitration agreement does not specify the number of arbitrators who are to form the arbitral tribunal, it shall be composed of one arbitrator.

Appointment of arbitral tribunal

10(1)       The court may appoint the arbitral tribunal, on a party's application, if

(a) the arbitration agreement provides no procedure for appointing the arbitral tribunal; or

(b) a person with power to appoint the arbitral tribunal has not done so within the time provided in the agreement or after a party has given the person seven days notice to do so, whichever is later.

No appeal

10(2)       There is no appeal from the court's appointment of the arbitral tribunal.

Appointment of individual members

10(3)       Subsections (1) and (2) apply, with necessary modifications, to the appointment of individual members of arbitral tribunals that are composed of more than one arbitrator.

Chairperson

10(4)       An arbitral tribunal composed of three or more arbitrators shall, and an arbitral tribunal composed of two arbitrators may, elect a chairperson from among themselves.

S.M. 2013, c. 54, s. 5.

Independence and impartiality of  arbitrator

11(1)       An arbitrator shall be independent of the parties and shall act impartially.

Disclosure before appointment

11(2)       Before accepting an appointment as arbitrator, a person shall disclose to all parties to the arbitration any circumstances of which that person is aware that may give rise to a reasonable apprehension of bias.

Disclosure during proceedings

11(3)       An arbitrator who, during an arbitration, becomes aware of circumstances that may give rise to a reasonable apprehension of bias shall promptly disclose the circumstances to all the parties.

No revocation

12          A party may not revoke the appointment of an arbitrator.

Challenge

13(1)       A party may challenge an arbitrator only on one of the following grounds:

(a) circumstances exist that may give rise to a reasonable apprehension of bias;

(b) the arbitrator does not possess qualifications that the parties have agreed are necessary.

Challenge by appointing party

13(2)       A party who appointed an arbitrator or participated in the arbitrator's appointment may challenge the arbitrator only on grounds of which the party was unaware at the time of the appointment.

Grounds of challenge

13(3)       A party who wishes to challenge an arbitrator shall send the arbitral tribunal a statement of the grounds for the challenge, within 15 days of becoming aware of them.

Removal by agreement or resignation

13(4)       The other parties may agree to remove the arbitrator who is being challenged, or the arbitrator may resign.

Decision on challenge

13(5)       If the arbitrator is not removed by the parties and does not resign, the arbitral tribunal, including the arbitrator who is being challenged, shall decide the issue and shall notify the parties of its decision.

Appeal from decision

13(6)       Within 10 days of being notified of the arbitral tribunal's decision, a party may make an application to the court to decide the issue and, in the case of the challenging party, to remove the arbitrator.

Tribunal to act during challenge

13(7)       While an application is pending, the arbitral tribunal, including the arbitrator who is being challenged, may continue the arbitration and make an award, unless the court orders otherwise.

Termination of arbitrator's mandate

14(1)       An arbitrator's mandate terminates when

(a) the arbitrator resigns or dies;

(b) the parties agree to terminate it;

(c) the arbitral tribunal upholds a challenge to the arbitrator, 10 days elapse after all the parties are notified of the decision and no application is made to the court; or

(d) the court removes the arbitrator under subsection 15(1).

No presumption re resignation or removal

14(2)       An arbitrator's resignation or a party's agreement to terminate an arbitrator's mandate does not imply acceptance of the validity of any reason advanced for challenging or removing the arbitrator.

Removal of arbitrator by court

15(1)       The court may remove an arbitrator on a party's application under subsection 13(6) or may do so on a party's application if the arbitrator becomes unable to perform the functions of an arbitrator, commits a corrupt or fraudulent act, delays unduly in conducting the arbitration or does not conduct the arbitration in accordance with section 19 (equality and fairness).

Arbitrator's right to be heard

15(2)       The arbitrator is entitled to be heard by the court on an application under subsection (1).

Conduct after arbitrator removed

15(3)       When the court removes an arbitrator, it may give directions about the conduct of the arbitration.

When arbitrator not to be paid

15(4)       If the court removes an arbitrator for a corrupt or fraudulent act or for undue delay, it may order that the arbitrator receive no payment for services and may order that the arbitrator compensate the parties for all or part of the costs, as determined by the court, that they incurred in connection with the arbitration before the arbitrator' removal.

Appeal from decision of court

15(5)       The arbitrator or a party may, within 30 days after receiving the court's decision, appeal an order made under subsection (4) or the refusal to make such an order, to The Court of Appeal, with leave of that court.

No other appeal

15(6)       Except as provided in subsection (5), there is no appeal from the court's decision or from its directions under this section.

Appointment of substitute arbitrator

16(1)       When an arbitrator's mandate terminates, a substitute arbitrator shall be appointed, following the procedure that was used in the appointment of the arbitrator being replaced.

Arbitration after mandate ends

16(2)       When the arbitrator's mandate terminates, the court may, on a party's application, give directions about the conduct of the arbitration.

Application for substitute arbitrator

16(3)       The court may appoint the substitute arbitrator, on a party's application, if

(a) the arbitration agreement provides no procedure for appointing the substitute arbitrator; or

(b) a person with power to appoint the substitute arbitrator has not done so within the time provided in the agreement or after a party has given the person seven days notice to do so, whichever is later.

No appeal

16(4)       There is no appeal from the court's decision or from its directions under this section.

Agreement on specified arbitrator

16(5)       This section does not apply if the arbitration agreement provides that the arbitration is to be conducted only by a named arbitrator.

JURISDICTION OF ARBITRAL TRIBUNAL

Ruling on jurisdiction and objections

17(1)       An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement.

Questions of law

17(2)       The arbitral tribunal may determine any question of law that arises during the arbitration.

Arbitration agreement part of another agreement

17(3)       If the arbitration agreement forms part of another agreement, it shall, for the purpose of a ruling on jurisdiction, be treated as an independent agreement that may survive even if the main agreement is found to be invalid.

Time for objection

17(4)       A party who has an objection to the arbitral tribunal's jurisdiction to conduct the arbitration shall make the objection no later than the beginning of the hearing or, if there is no hearing, no later than the first occasion on which the party submits a statement to the tribunal.

Who may object

17(5)       The fact that a party has appointed or participated in the appointment of an arbitrator does not prevent the party from making an objection to jurisdiction.

Objection re tribunal exceeding authority

17(6)       A party who has an objection that the arbitral tribunal is exceeding its jurisdiction shall make the objection as soon as the matter alleged to be beyond the tribunal's jurisdiction is raised during the arbitration.

Objection after time limit

17(7)       Notwithstanding section 4 (waiver of right to object), if the arbitral tribunal considers the delay justified, a party may make an objection after the time referred to in subsection (4) or (6), as the case may be, has expired.

Ruling on objection

17(8)       The arbitral tribunal may rule on an objection when it is raised or may deal with it in an award.

Ruling as preliminary question

17(9)       If the arbitral tribunal rules on an objection when it is raised, a party may, within 30 days after receiving notice of the ruling, make an application to the court to decide the matter.

Court's decision final

17(10)      There is no appeal from the court's decision on an application under subsection (9).

Arbitration pending decision

17(11)      While an application is pending, the arbitral tribunal may continue the arbitration and make an award.

Order respecting property and documents

18(1)       On a party's request, an arbitral tribunal may make an order for the detention, preservation or inspection of property and documents that are the subject of the arbitration or as to which a question may arise in the arbitration, and may order a party to provide security in that connection.

Court may enforce order

18(2)       The court may enforce the order of an arbitral tribunal under subsection (1) as if it were a similar order made by the court in an action.

CONDUCT OF ARBITRATION

Equality and fairness

19(1)       An arbitral tribunal shall treat the parties equally and fairly.

Opportunities to be heard

19(2)       Each party shall be given an opportunity to present a case and to respond to the other parties' cases.

Tribunal may determine procedure

20(1)       The arbitral tribunal may determine the procedure to be followed in the arbitration, in accordance with this Act.

Delegation of procedural questions

20(2)       An arbitral tribunal that is composed of more than one arbitrator may delegate the determination of questions of procedure to the chairperson.

Evidence

21(1)       The arbitral tribunal is not bound by the rules of evidence or any other law applicable to judicial proceedings and may determine the admissibility, relevance and weight of evidence.

Manner of admission

21(2)       The arbitrator may determine the manner in which evidence is to be admitted.

Time and place of arbitration

22(1)       The arbitral tribunal shall determine the time, date and place of arbitration, taking into consideration the parties' convenience and the other circumstances of the case.

Place of meetings

22(2)       The arbitral tribunal may meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or parties or for inspecting property or documents.

Commencement of arbitration

23(1)       An arbitration may be commenced in any way recognized by law, including the following:

(a) a party to an arbitration agreement serves on the other parties notice to appoint or to participate in the appointment of an arbitrator under the agreement;

(b) if the arbitration agreement gives a person who is not a party power to appoint an arbitrator, one party serves notice to exercise that power on the person and serves a copy of the notice on the other parties;

(c) a party serves on the other parties a notice demanding arbitration under the arbitration agreement.

First exercise of powers

23(2)       The arbitral tribunal may exercise its powers when every member has accepted appointment.

Matters referred to arbitration

24          A notice that commences an arbitration without identifying the matters in dispute is deemed to refer to arbitration all matters in dispute that the arbitration agreement entitles the party giving the notice to refer.

Submission of statements

25(1)       An arbitral tribunal may require that the parties submit their statements within a specified period of time.

Content of statements

25(2)       The parties' statements shall indicate the facts supporting their positions, the points at issue and the relief sought.

Documents included

25(3)       The parties may submit with their statements the documents they consider relevant, or may refer to the documents or other evidence they intend to submit.

Amendment of statements

25(4)       The parties may amend or supplement their statements during the arbitration, but the arbitral tribunal may disallow a change that is unduly delayed.

Oral statements

25(5)       The parties may submit their statements orally, with the permission of the arbitral tribunal.

Parties to comply with directions

25(6)       The parties and persons claiming through or under them shall, subject to any legal objection, comply with the directions of the arbitral tribunal, including directions to

(a) submit to examination on oath or affirmation with respect to the matters in dispute;

(b) produce records and documents that are in their possession or power.

Enforcement of directions

25(7)       The court may enforce the direction of an arbitral tribunal as if it were a similar direction made by the court in an action.

Hearings

26(1)       The arbitral tribunal may conduct the arbitration on the basis of documents or may hold hearings for the presentation of evidence and for oral argument, but the tribunal shall hold a hearing if a party requests it.

Notice of hearings and meetings

26(2)       The arbitral tribunal shall give the parties sufficient notice of hearings and of meetings of the tribunal for the purpose of inspection of property or documents.

Parties to share information

26(3)       A party who submits a statement to the arbitral tribunal or supplies the tribunal with any other information shall also communicate it to the other parties.

Tribunal to share documents

26(4)       The arbitral tribunal shall communicate to the parties any expert reports or other documents on which it intends to rely in making a decision.

Default

27(1)       If the party who commenced the arbitration does not submit a statement within the period of time specified under subsection 25(1), the arbitral tribunal may make an award dismissing the claim, unless the party offers a satisfactory explanation.

Other party's failure to submit statement

27(2)       If a party other than the one who commenced the arbitration does not submit a statement within the period of time specified under subsection 25(1), the arbitral tribunal may continue the arbitration, unless the party offers a satisfactory explanation, but the tribunal shall not treat the failure to submit a statement as an admission of another party's allegations.

Failure to appear

27(3)       If a party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the arbitration in a manner that it considers appropriate and make an award on the evidence before it, unless the party offers a satisfactory explanation.

Delay

27(4)       In the case of delay by the party who commenced the arbitration, the arbitral tribunal may

(a) make an award terminating the arbitration; or

(b) give directions for the speedy determination of the arbitration;

and may impose conditions on its decision.

Default in joint arbitration

27(5)       If the arbitration was commenced jointly by all the parties, subsections (2) and (3) apply, with necessary modifications, but subsections (1) and (4) do not.

Counterclaim

27(6)       This section applies in respect of a counterclaim as if the party making it were the party who commenced the arbitration.

Appointment of expert

28(1)       An arbitral tribunal may appoint an expert to report to it on specific issues.

Sharing information with expert

28(2)       The arbitral tribunal may require parties to give the expert any relevant information or to allow the expert to inspect property or documents.

Expert at hearing

28(3)       At the request of a party or of the arbitral tribunal, the expert shall, after making the report, participate in a hearing in which the parties may question the expert and present the testimony of another expert on the subject-matter of the report.

Obtaining evidence

29(1)       A party may serve a person with a notice issued by the arbitral tribunal requiring the person to attend, give evidence and produce documents at the arbitration at the time and place named in the notice.

Effect of notice

29(2)       The notice has the same effect as a notice or subpoena in a court proceeding requiring a witness to attend at a hearing or produce documents, and shall be served in the same way.

Oath

29(3)       An arbitral tribunal has power to administer an oath or affirmation and power to require a witness to testify under oath or affirmation.

Testimony under oath

29(4)       An arbitral tribunal shall require witnesses to testify under oath, affirmation or declaration.

Orders respecting evidence

29(5)       On the application of a party or of the arbitral tribunal, the court may make orders and give directions with respect to the taking of evidence for an arbitration as if it were a court proceeding.

Restriction

30          No person shall be compelled to produce information, property or documents or to give evidence in an arbitration that the person could not be compelled to produce or give in a court proceeding.

AWARDS AND TERMINATION OF ARBITRATION

Application of law and equity

31          An arbitral tribunal shall decide a matter in dispute in accordance with law, including equity, and may order specific performance, injunctions and other equitable remedies.

Application of rules of law

32(1)       In deciding a matter in dispute, an arbitral tribunal shall apply the law of a jurisdiction designated by the parties or, if none is designated, the law of a jurisdiction it considers appropriate in the circumstances.

Presumption

32(2)       A designation by the parties of the law of a jurisdiction refers to the jurisdiction's substantive law and not to its conflict of laws rules, unless the parties expressly indicate that the designation includes them.

Application of arbitration agreement, contract and usages of trade

33          The arbitral tribunal shall decide the matters in dispute in accordance with the arbitration agreement and any contract under which the matters arose, and shall also take into account any applicable usages of trade.

Decision of arbitral tribunal

34          If an arbitral tribunal is composed of more than one member, a decision of a majority of the members is the arbitral tribunal's decision, but if there is no majority decision or unanimous decision, the decision of the chairperson governs.

Mediation and conciliation

35(1)       The members of an arbitral tribunal may, if the parties consent, use mediation, conciliation or similar techniques during the arbitration to encourage settlement of the matters in dispute.

Resumption of arbitration

35(2)       After the members of an arbitral tribunal use a technique mentioned in subsection (1), they may resume their roles as arbitrators without disqualification.

Settlement by parties

36          If the parties settle the matters in dispute during arbitration, the arbitral tribunal shall terminate the arbitration and, if a party so requests, may record the settlement in the form of an award.

Binding nature of award

37          An award binds the parties, unless it is set aside or varied under section 44 (appeal) or 45 (grounds for setting aside award).

Form of award

38(1)       An award shall be made in writing and, except in the case of an award made on consent, shall state the reasons on which it is based.

Date and place to be stated

38(2)       The award shall indicate the place where and the date on which it is made.

Members to sign

38(3)       The award shall be dated and shall be signed by all the members of the arbitral tribunal, or by a majority of them if an explanation of the omission of the other signatures is included.

Delivery to parties

38(4)       A copy of the award shall be delivered to each party.

Extension of time limit

39          The court may extend the time within which the arbitral tribunal is required to make an award, even if the time has expired.

Amplification of reasons

40(1)       A party may, within 30 days after receiving an award, request in writing that the arbitral tribunal explain any matter.

Order for explanation

40(2)       If the arbitral tribunal does not give an explanation within 15 days after receiving the request, the court may, on the party's application, order the tribunal to do so.

Interim awards

41(1)       The arbitral tribunal may make one or more interim awards.

Final award

41(2)       The arbitral tribunal may make more than one final award, disposing of one or more matters in dispute referred to arbitration in each award.

Termination of arbitration

42(1)       An arbitration is terminated when

(a) the arbitral tribunal makes a final award or awards in accordance with this Act, disposing of all matters in dispute referred to arbitration;

(b) the arbitral tribunal terminates the arbitration under subsection (2), 27(1) (default) or 27(4) (delay); or

(c) an arbitrator's mandate is terminated, if the arbitration agreement provides that the arbitration shall be conducted only by that arbitrator.

Termination of arbitration by tribunal

42(2)       An arbitral tribunal shall make an order terminating the arbitration if

(a) the party that commenced the arbitration withdraws the matters in dispute, unless the other party objects to the termination and the arbitral tribunal agrees that the other party is entitled to obtain a final settlement of the matters in dispute;

(b) the parties agree that the arbitration should be terminated; or

(c) the arbitral tribunal finds that the continuation of the arbitration has become unnecessary or impossible.

Revival of arbitration

42(3)       An arbitration that is terminated may be revived for the purpose of section 43 (correction of errors) or subsection 44(4), 45(7), 45(8) (appeal) or 53(4) (costs).

Death of a party

42(4)       A party's death terminates the arbitration only with respect to claims that are extinguished as a result of the death.

Correction of errors

43(1)       An arbitral tribunal may, on its own initiative within 30 days after making an award or at a party's request made within 30 days after receiving the award,

(a) correct typographical errors, errors of calculation and similar errors in the award; or

(b) amend the award so as to correct an injustice caused by an oversight on the part of the arbitral tribunal.

Additional award

43(2)       The arbitral tribunal may, on its own initiative at any time or at a party's request made within 30 days after receiving the award, make an additional award to deal with a matter in dispute that was presented in the arbitration but omitted from the earlier award.

No hearing required

43(3)       The arbitral tribunal need not hold a hearing or meeting before rejecting a request made under this section.

REMEDIES

Appeal of award

44(1)       If the arbitration agreement so provides, a party may appeal an award to the court on a question of law, on a question of fact or on a question of mixed fact and law.

Appeal on question of law with leave

44(2)       If the arbitration agreement does not provide that the parties may appeal an award to the court on a question 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

(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and

(b) determination of the question of law at issue will significantly affect the rights of the parties.

Court may require explanation

44(3)       The court may require the arbitral tribunal to explain any matter.

Powers of court

44(4)       The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal, with the court's opinion on the question of law, in the case of an appeal on a question of law, and give directions about the conduct of the arbitration.

Appeal to Court of Appeal

44(5)       Subsections (1) and (2) do not apply to an arbitration agreement that provides for an appeal to The Court of Appeal where the Minister of Justice is satisfied that the arbitration relates to a matter of major importance to the province, in which case subsections (3) and (4) apply to the appeal with necessary modifications.

Grounds for setting aside award

45(1)       On a party's application, the court may set aside an award on any of the following grounds:

(a) a party entered into the arbitration agreement while under a legal incapacity;

(b) the arbitration agreement is invalid or has ceased to exist;

(c) the award deals with a matter in dispute that the arbitration agreement does not cover or contains a decision on a matter in dispute that is beyond the scope of the agreement;

(d) the composition of the arbitral tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with the matter, was not in accordance with this Act;

(e) the subject-matter of the arbitration is not capable of being the subject of arbitration under Manitoba law;

(f) the applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party's case, or was not given proper notice of the arbitration or of the appointment of an arbitrator;

(g) the procedures followed in the arbitration did not comply with this Act or the arbitration agreement;

(h) an arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias;

(i) the award was obtained by fraud.

Setting aside part of arbitration award

45(2)       If clause (1)(c) applies and it is reasonable to separate the decisions on matters covered by the arbitration agreement from the impugned ones, the court shall set aside the impugned decisions and allow the others to stand.

No setting aside if party agreed

45(3)       The court shall not set aside an award on grounds referred to in clause (1)(c) if the applicant has agreed to the inclusion of the matter in dispute, waived the right to object to its inclusion or agreed that the arbitral tribunal has power to decide what matters in dispute have been referred to it.

No setting aside if no challenge

45(4)       The court shall not set aside an award on grounds referred to in clause (1)(h) if the party had an opportunity to challenge the arbitrator on those grounds under section 13 before the award was made and did not do so, or if those grounds were the subject of an unsuccessful challenge.

No setting aside if waiver under section 4

45(5)       The court shall not set aside an award on a ground to which the applicant is deemed under section 4 to have waived the right to object.

Setting aside where failure to object justified

45(6)       If the ground alleged for setting aside the award could have been raised as an objection to the arbitral tribunal's jurisdiction to conduct the arbitration or as an objection that the arbitral tribunal was exceeding its authority, the court may set the award aside on that ground if it considers the applicant's failure to make an objection in accordance with section 17 justified.

Powers of court in setting aside

45(7)       When the court sets aside an award, it may remove the arbitral tribunal or an arbitrator and may give directions about the conduct of the arbitration.

Alternate powers of court instead of setting aside

45(8)       Instead of setting aside an award, the court may remit it to the arbitral tribunal and give directions about the conduct of the arbitration.

Time limit

46(1)       The following appeals and applications must be commenced within 30 days after the appellant or applicant receives the award, correction, explanation, change or statement of reasons on which the appeal or application is based:

(a) an appeal under subsection 44(1);

(b) an application for leave to appeal under subsection 44(2);

(c) subject to subsection (2), an application to set aside an award under section 45.

Fraud or corrupt act

46(2)       An application to set aside an award on the grounds that an arbitrator has committed a corrupt of fraudulent act or that the award was obtained by fraud must be commenced within the later of

(a) a period mentioned in subsection (1); and

(b) 30 days after the applicant discovers or ought to have discovered the fraud or corrupt act.

Declaration of invalidity of arbitration

47(1)       At any stage during or after an arbitration, on the application of a party who has not participated in the arbitration, the court may grant a declaration that the arbitration is invalid because

(a) a party entered into the arbitration agreement while under a legal incapacity;

(b) the arbitration agreement is invalid or has ceased to exist;

(c) the subject matter of the arbitration is not capable of being the subject of arbitration under Manitoba law; or

(d) the arbitration agreement does not apply to the matter in dispute.

Injunction

47(2)       When the court grants the declaration, it may also grant an injunction against the commencement or continuation of the arbitration.

Further appeal to Court of Appeal

48          An appeal from the court's decision in an appeal of an award, an application to set aside an award or an application for a declaration of invalidity may be made to The Court of Appeal, with leave of that court.

Enforcement of award

49(1)       A person who is entitled to enforce an award made in Manitoba or elsewhere in Canada may make an application to the court to that effect.

Application for enforcement

49(2)       The application shall be made on notice to the person against whom enforcement is sought, in accordance with the Queen's Bench Rules, and shall be supported by the original award or a certified copy of the award.

Enforcing Manitoba award

49(3)       The court shall give a judgment enforcing an award made in Manitoba unless

(a) the 30 day period for commencing an appeal or an application to set the award aside has not yet elapsed;

(b)  an appeal, an application to set the award aside or an application for a declaration of invalidity is pending; or

(c) the award has been set aside or the arbitration is the subject of a declaration of invalidity.

Enforcing other award

49(4)       The court shall give a judgment enforcing an award made elsewhere in Canada unless

(a) the period for commencing an appeal or an application to set the award aside provided by the laws of the province or territory where the award was made has not yet elapsed;

(b)  an appeal, an application to set the award aside or application for a declaration of invalidity is pending in the province or territory where the award was made;

(c) the award has been set aside in the province or territory where it was made or the arbitration is the subject of a declaration of invalidity granted there; or

(d) the subject-matter of the award is not capable of being the subject of arbitration under Manitoba law.

Where appeal still allowed

49(5)       If the period for commencing an appeal, an application to set the award aside or an application for a declaration of invalidity has not yet elapsed, or if such a proceeding is pending, the court may

(a) enforce the award; or

(b) order, on such conditions as the court considers just, that enforcement of the award is stayed until the period has elapsed without such a proceeding being commenced, or until the pending proceeding is finally disposed of.

Where proceeding pending

49(6)       If the court stays the enforcement of an award made in Manitoba until a pending proceeding is finally disposed of, it may give directions for the speedy disposition of the proceeding.

Change of remedy

49(7)       If the award gives a remedy that the court does not have jurisdiction to grant or would not grant in a proceeding based on similar circumstances, the court may

(a) grant a different remedy requested by the applicant; or

(b) in the case of an award made in Manitoba, remit it to the arbitral tribunal with the court's opinion, in which case the arbitral tribunal may award a different remedy.

Court may enforce awards

49(8)       The court has the same powers with respect to the enforcement of awards as with respect to the enforcement of its own judgments.

GENERAL

Crown bound

50          This Act binds the Crown.

Limitation periods

51(1)       The law with respect to limitation periods applies to an arbitration as if the arbitration were an action and a matter in dispute in the arbitration were a cause of action.

Order re deadline to commence action

51(2)       If the court sets aside an award, terminates an arbitration or declares an arbitration to be invalid, it may order that the period from the commencement of the arbitration to the date of the order shall be excluded from the computation of the time within which an action may be brought on a cause of action that was a matter in dispute in the arbitration.

Deadline for application to enforce

51(3)       An application for enforcement of an award may not be made more than the later of

(a)  two years after the day on which the applicant receives the award; and

(b) two years after the day on which the last appeal period expires.

Service on individual

52(1)       A notice or other document may be served on an individual by leaving it with that individual.

Service on corporation

52(2)       A notice or other document may be served on a corporation by leaving it with an officer, director or agent of the corporation, or at a place of business of the corporation with a person who appears to be in control or management of the place.

Service by fax

52(3)       A notice or other document may be served by sending it to the addressee by telephone transmission of a facsimile to the number that the addressee specified in the arbitration agreement or has furnished to the arbitral tribunal.

Service by registered mail

52(4)       If a reasonable effort to serve a notice or other document under subsection (1) or (2) is not successful and it is not possible to serve it under subsection (3), it may be sent by prepaid registered mail to the mailing address that the addressee specified in the arbitration agreement or furnished to the arbitral tribunal or, if none was specified or furnished, to the addressee's last-known place of business or residence.

Deemed receipt

52(5)       Unless the addressee establishes that the addressee, acting in good faith, through absence, illness or other cause beyond the addressee's control failed to receive the notice or other document until a later date, it is deemed to have been received

(a) on the day it is given or transmitted, in the case of service under subsection (1), (2) or (3); or

(b) on the fifth day after the day of mailing, in the case of service under subsection (4).

Substituted service

52(6)       The court may make an order for substituted service or an order dispensing with service, in the same manner as under the Queen's Bench Rules, if the court is satisfied that it is necessary to serve the notice or other document to commence an arbitration or proceed towards the appointment of an arbitral tribunal and that it is impractical for any reason to effect prompt service under subsection (1), (2), (3) or (4).

Service of documents re court proceedings

52(7)       This section does not apply to the service of documents in respect of court proceedings.

Costs

53(1)       An arbitral tribunal may award the costs of an arbitration.

Basis for costs

53(2)       The arbitral tribunal may award all or part of the costs of an arbitration on a solicitor and client basis, a party and party basis or any other basis, but if it does not specify the basis, the costs shall be determined on a party and party basis.

What costs include

53(3)       The costs of an arbitration consist of the parties' legal expenses, the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration.

Further award re costs

53(4)       If the arbitral tribunal does not deal with costs in an award, a party may, within 30 days after receiving the award, request that it make a further award dealing with costs.

Where no award re costs

53(5)       In the absence of an award dealing with costs, each party is responsible for the party's own legal expenses and for an equal share of the fees and expenses of the arbitral tribunal and of any other expenses related to the arbitration.

Offer to settle relevant to costs

53(6)       If a party makes an offer in writing to another party to settle the matters in dispute or part of the matters in dispute, the offer is not accepted and the arbitral tribunal's award is no more favourable to the party to which the offer was made than was the offer, the arbitral tribunal may take that fact into account in awarding costs in respect of the period from the making of the offer to the making of the award.

Tribunal not to know of offer to settle

53(7)       The fact that an offer to settle has been made shall not be communicated to the arbitral tribunal until it has made a final determination of all aspects of the matters in dispute other than costs.

Arbitrator's fees and expenses

54          The fees and expenses paid to an arbitrator shall not exceed the fair value of the services performed and the necessary and reasonable expenses actually incurred.

Assessment of fees and expenses

55(1)       A party to an arbitration may have an arbitrator's account for fees and expenses assessed by an assessment officer in the same manner as a lawyer's bill under the Queen's Bench Rules.

Assessment of costs

55(2)       If an arbitral tribunal awards costs and directs that they be assessed, or awards costs without fixing the amount or indicating how it is to be ascertained, a party to the arbitration may have the costs assessed by an assessment officer in the same manner as costs under the Queen's Bench Rules, having regard to the special characteristics of arbitrations.

Assessing costs of tribunal

55(3)       In assessing the part of the costs represented by the fees and expenses of the arbitral tribunal, the assessment officer shall apply the same principles as in the assessment of an account under subsection (1).

Assessment after payment of account

55(4)       Subsection (1) applies even if the account has been paid.

Party may request review of assessment

55(5)       On the application of a party to the arbitration, the court may review an assessment of costs or of an arbitrator's account for fees and expenses and may confirm the assessment, vary it, set it aside or remit it to the assessment officer with directions.

Arbitrator may request review of assessment

55(6)       On the application of an arbitrator, the court may review an assessment of the arbitrator's account for fees and expenses and may confirm the assessment, vary it, set it aside or remit it to the assessment officer with directions.

Time limit for application for review

55(7)       An application for review may not be made after the period specified in the assessment officer's certificate has elapsed or, if no period is specified, more than 30 days after the date of the certificate, unless the court orders otherwise.

Enforcement of certificate

55(8)       When the time during which an application for review may be made has expired and no application has been made, or when the court has reviewed the assessment and made a final determination, the assessment officer's certificate may be filed with the court and enforced as if it were a judgment of the court.

Interest

56          An arbitral tribunal has the same power with respect to interest as the court has under Part XIV of The Court of Queen's Bench Act, but the provision for payment into court does not apply.

Transitional

57(1)       This Act applies to an arbitration conducted under an arbitration agreement made before the day this Act comes into force, if the arbitration is commenced on or after the day this Act comes into force.

Arbitrations under previous Act

57(2)       Notwithstanding its repeal by section 59, The Arbitration Act, R.S.M. 1987 Cap. A120, continues to apply to an arbitration commenced before this Act comes into force.

S.M. 2008, c. 42, s. 4.

58          

NOTE: This section contained consequential amendments to The Mining and Metallurgy Compensation Act that are now included in that Act.

Repeal

59          The Arbitration Act, R.S.M. 1987 c. A120, is repealed.

C.C.S.M. reference

60          This Act may be cited as The Arbitration Act and referred to as chapter A120 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

61          This Act comes into force on the day it receives royal assent.