as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. A120
The Arbitration Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"court" means Her Majesty's Court of Queen's Bench; ("tribunal")
"submission" means a written agreement to submit present or future differences to arbitration, whether an arbitrator be named therein or not. ("compromis")
This Act applies to an arbitration to which Her Majesty is a party; and Her Majesty is bound by this Act.
This Act applies to every arbitration under any Act passed before or after the commencement of this Act as if the arbitration were pursuant to a submission, except in so far as this Act is inconsistent with the Act regulating the arbitration, or with any rules or procedure authorized or recognized by that Act.
REFERENCES BY SUBMISSION
Unless a contrary intention is expressed therein, a submission is irrevocable, except by leave of the court; and it has the same effect, in all respects, as if it had been made an order of the court.
Unless a contrary intention is expressed therein, a submission shall be deemed to include the provisions next hereinafter set forth, so far as they are applicable to the reference under the submission:
(a) Where no other mode of reference is provided, the reference shall be to a single arbitrator.
(b) Where the reference is to two arbitrators, the two arbitrators may appoint an umpire at any time within the period during which they may make an award.
(c) Where an arbitrator or umpire or third arbitrator refuses to act, or is incapable of acting or is disqualified or dies, the party or parties or the arbitrators by whom he was appointed, may appoint an arbitrator, umpire, or third arbitrator, as the case requires, in his stead, and this power may be exercised from time to time as vacancies occur.
(d) The submission is not revoked by the death of the parties or any of them.
(e) The arbitrators shall make their award in writing within three months after entering on the reference, or after having been called on to act by notice in writing from any party to the submission, or on or before any later day to which the arbitrators, by any writing signed by them, from time to time, enlarge the time for making the award.
(f) Where there are two arbitrators and they have allowed their time or extended time to expire without making an award, or have delivered to any party to the submission, or to the umpire, a notice in writing stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators.
(g) The umpire shall make his award within one month after the original or extended time appointed for making the award of the arbitrators has expired, or on or before any later day to which the umpire by any writing signed by him, from time to time, enlarges the time for making his award.
(h) The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire, on oath or affirmation, in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire all books, deeds, papers, accounts, writings, documents and things within their possession or power respectively, that are required or called for, and do all other things that during the proceedings on the reference, the arbitrators or umpire require.
(i) The award to be made by the arbitrators or by a majority of them or by the umpire shall, subject to any appeal permitted by this Act, be final and binding on the parties and the persons claiming under them respectively.
(j) The costs of the reference and award are in the discretion of the arbitrators or umpire, who may direct to and by whom, and in what manner, those costs or any part thereof are to be paid, and may tax or settle the amount thereof.
(a) a submission provides that the reference shall be to a single arbitrator and the persons whose concurrence is necessary do not, after differences have arisen, concur in the appointment of an arbitrator; or
(b) an arbitrator, an umpire or a third arbitrator is to be appointed by any person, and that person does not make the appointment; or
(c) unless the submission otherwise provides, an arbitrator, an umpire or a third arbitrator refuses to act or is incapable of or disqualified from acting or dies, and the vacancy is not filled by the person having the right to fill the vacancy;
any party may serve the other party or the arbitrators, or the person who has the right to make the appointment, as the case requires, with a written notice to concur in the appointment of a single arbitrator or to appoint an arbitrator, umpire or third arbitrator.
Where the appointment is not made within seven clear days after the service of the notice, the court may, on application by the party who gave the notice, appoint an arbitrator, umpire or third arbitrator, who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of ail parties.
Where a vacancy arises after the commencement of the proceedings and is filled, unless the submission otherwise provides, the proceedings do not require to be recommenced or repeated.
Where a party to a submission, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to the legal proceedings may, before delivering any pleading or taking any other step in the proceedings, apply to that court to stay proceedings; and that court, if satisfied that there is no sufficient reason why the matters should not be referred in accordance with the submission, and that the applicant was, at the time the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.
Every arbitrator or umpire, before proceeding to try the matter of an arbitration provided for by any Act, shall take and subscribe the following oath or solemn affirmation before any person before whom affidavits may be sworn in the province:
I, (A.B.), do swear (or solemnly affirm) that I will well and truly try the matters referred to me as provided for by (name of Act), in the matter of (state the matter), and a true and impartial award make in the premises, according to the evidence and my skill and knowledge. So help me God. (Omit last four words in case of an affirmation).
The arbitrators and umpire, if any, shall proceed with, and complete, the arbitration and award as speedily as possible, having regard to the interests of the parties, and may give any directions respecting the proceedings which they deem proper to prevent delay.
The arbitrators and the umpire, if any, shall, unless the submission otherwise provides or the parties otherwise consent, examine on oath or solemn affirmation such witnesses as appear before them; but no more than three expert or opinion witnesses shall be called on behalf of any party.
The arbitrators or the umpire may, by consent of the parties, decide the matter upon a view or inspection of the property without examining witnesses or in addition thereto; but any party shall in such a case be permitted to point out such things as seem material to the case.
An arbitrator or umpire may, at any stage of the proceedings under a reference, and shall, if so directed by the court, state, in the form of a special case for the opinion of the court, the award as to the whole or part thereof or any question of law arising in the course of the reference.
Unless the submission expresses a contrary intention, the arbitrators or umpire may correct any clerical mistake or error arising from an accidental slip or omission in an award.
Upon making the award the arbitrators shall forthwith
(a) notify the parties to the submission that the award has been made; and
(b) upon payment of their fees,
(i) deliver or transmit by registered mail a copy of the award to any of the parties who have required it; and
(ii) unless the submission expresses a contrary intention or the parties otherwise agree, deliver or transmit by registered mail the award and the depositions, exhibits, and all papers connected with the arbitration to the Registrar of the court to be filed with the records of the court.
The notice required under clause (l)(a) may be given by registered letter addressed to the parties or to their representatives, if any, who appeared for them on the arbitration proceedings.
Within 15 days after the date of the giving of the notice required under clause 13(l)(a) respecting
(a) the original award; or
(b) any subsequent amendment or variation thereof made under this section;
any party to the submission may apply in writing to the arbitrators to re-open the award, and to amend or vary it in respect of any thing that was raised before the arbitrators when the matter was previously referred to them; and in the application the applicants shall give full details of the manner in which they desire to have the award amended, and a summary of the reasons therefor.
Where notice of the award was given by registered mail, the date of the giving thereof shall be deemed to be the date on which it was mailed.
On receipt of the application the arbitrators shall forthwith notify the applicant in writing of the place where, and the time and date when, they will hear the matters raised in the application; and the date so fixed shall not be less than 15 days or more than 30 days after they receive the application.
On receiving notice of the date of the hearing, the applicant shall give written notice thereof to each of the other parties to the submission, together with a copy of his application to which reference is made in subsection (1).
The notice and copy of the application to which reference is made in subsection (4) shall be served on each of the other parties to the submission
(a) by personal service on him not less than 10 days before the date fixed for the hearing; or
(b) by mailing them to him at his last known address, by registered mail, in sufficient time to reach his address, in the ordinary course of mail, not less than 10 days before the date fixed for the hearing.
On being satisfied that the applicant has complied with subsections (4) and (5), and on hearing
(a) what is alleged by, or on behalf of, the applicant and any other party to the submission who desires to be heard; and
(b) such other evidence, if any, as the arbitrators desire to be given;
the arbitrators may re-open the award and amend or vary it in such manner as to them seems just and reasonable; and the award as so amended or varied shall be conclusively deemed to be the award of the arbitrators in the matter.
Section 13 applies to an amended or varied award as if it were the original award in the matter.
Any party to a submission may sue out of the court a writ of subpoena ad testificandum or a writ of subpoena duces tecum: but no person shall be compelled, under any such writ, to produce any document that he could not be compelled to produce on the trial of an action.
The evidence of the witnesses examined upon a reference shall, if required by either party, be taken down in writing either in longhand or shorthand and shall, at the request of either party, be transmitted by the arbitrators or umpire, together with the exhibits, to the office of the Registrar of the court.
The evidence, if taken down in shorthand, shall at the request of either party, be extended before being transmitted.
Where a party to a submission desires to procure, for use upon the reference, the evidence of any person to be taken de bene esse or to be taken out of the province, an order may be made for the examination of that person, or for the issue of a commission, in the like circumstances and with the like effect as a similar order may be made in an action.
The Queen's Bench Act and rules of court apply to any such order or commission and to the proceedings thereon and the evidence taken thereunder.
Where no special reason appears to him to exist for filing an original book, paper, or document as an exhibit on a reference, an arbitrator or an umpire may allow a copy thereof, or of such portion thereof as he deems material, to be substituted as an exhibit in the place of the original book, paper or document.
The time for making an award may be enlarged by order of the court, whether the time for making the award has expired or not.
The court may remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire.
The arbitrators or umpire shall, unless the order so remitting otherwise directs, make their award within three months after the date of the order.
Where an arbitrator or umpire has misconducted himself, the court may remove him.
Where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the court may set the award aside.
Unless by leave of the court, an application to set aside an award, otherwise than by way of appeal, shall not be made after six weeks from the publication of the award.
Such leave may be granted before or after the expiration of the six weeks.
In the computation of time for appealing against, or applying to set aside an award, the vacations shall not be reckoned.
Where an award is set aside, the court setting it aside may give directions as to the costs of the reference and award.
An award on a submission may, by leave of the court, to be obtained on notice of motion, be entered as a judgment of the court, and may be enforced in the same manner as a judgment or order to the same effect.
The arbitrator or arbitrators and the umpire, if any, may tax and settle the amount of their fees in accordance with the tariff of fees set out in Schedule A; but the parties to the submission may agree, by writing signed by them or by making the agreement a part of the submission, to pay to the arbitrator, or arbitrators if more than one, and to the umpire, if any, such fees or sums for each day's attendance, or such gross sums for undertaking the reference and making the award, as the parties see fit, in which case the arbitrator, or arbitrators and umpire, if any, shall tax the fees payable to them accordingly.
The fees to be taxed to a person called as a witness before an arbitrator, or to a reporter for taking or extending evidence in an arbitration, or to counsel appearing thereon, shall not exceed the fees respectively payable to such a witness, or reporter or counsel, in an action in the court.
Where, at a meeting of arbitrators of which due notice has been given, no proceedings are taken in consequence of the absence of any party, or of a postponement at the request of any party, the arbitrators shall make up an account of the costs of the meeting, including the proper charges for their own attendance and that of any witnesses and of the counsel of any other party present, and unless under the special circumstances of the case they think that it would be unjust so to do, they shall charge the amount thereof, or of the disbursements, against the party in default or at whose request the postponement is made.
The party in default or at whose request the postponement is made shall pay to the other party the amount charged under subsection (1), whatever the event of the reference.
The arbitrators shall, in the award, make any direction necessary for the purpose of giving effect to subsection (2); and the amount charged against any party under subsection (1) may be set-off against, and deducted from, any amount awarded in his favour.
Any of the parties or the arbitrators or the umpire, may have the costs of the arbitration, including the fees of the arbitrators, or the fees alone, taxed by a taxing officer of the court upon an appointment to be given by the taxing officer for that purpose on praecipe.
Except where the parties have otherwise agreed in writing, the taxing officer shall not tax to an arbitrator or an umpire fees higher than those that are set out in Schedule A.
Upon reasonable grounds, the taxing officer may reduce the fees to any amount below the maximum set out in Schedule A, but not below the minimum, having always regard to the length of the arbitration, the value of the matter in dispute, the difficulty of the questions to be decided, and whether or not the arbitrators or umpire were appointed because of any technical knowledge or professional qualification.
The fees to be allowed to counsel shall be similar to the fees allowed upon a reference in the court and the scale shall be determined by the taxing officer having regard to the value of the matter in dispute, but he shall not tax more than one counsel fee to either party.
The taxing officer may tax a reasonable sum for preparing the award.
An appeal may be had from the taxation in the same manner as from a taxing officer's certificate of taxation in an action.
Where the arbitration has been unduly prolonged, the taxing officer, and the judge upon appeal from taxation, may reduce fees payable to any arbitrator, umpire, or counsel.
An arbitrator or umpire who, having entered upon the reference, refuses or delays, after the expiration of one month from the making of the award, to deliver it until a larger sum is paid to him for his fees than is by this Act permitted, or receives for his award or for his fees as arbitrator or umpire any such larger sum, shall forfeit and pay to the party who has demanded delivery of the award, or who has paid to the arbitrator or umpire, any such larger sum in order to obtain it, or as a consideration for having obtained it, treble the excess so demanded or received by the arbitrator or umpire.
Where an award is made, any arbitrator or umpire may maintain an action for his fees upon the award, after they have been finally taxed and settled; and, in the absence of an express agreement in respect thereof, the arbitrator or umpire, may maintain such an action against all the parties to the reference, jointly or severally.
Where it is provided by the terms of the submission that the reference is subject to appeal, an appeal lies to the Court of Appeal from any award, order, or direction made in the reference; and the appeal shall be taken in the same manner, and subject to the same rules, as an appeal to the Court of Appeal from any order or judgment given or pronounced by a single judge of the court.
The Court of Appeal may reverse, alter, or vary the award and any direction as to costs made therein or supplementary thereto, or may remit the award to the arbitrators for reconsideration with such directions as it deems proper; and the costs of any such appeal are in the discretion of the Court of Appeal.
REFERENCE BY COURT ORDER
For the purposes of this section and sections 33 and 34 "referee" includes the master or a local master of the court, and any special referee or arbitrator agreed upon by the parties or appointed by the court.
Subject to The Queen's Bench Rules, and to any right to have particular cases tried by jury, the court may refer to a referee any question arising in any cause or matter for inquiry or report.
The court may adopt the report of a referee wholly or partially or may set it aside, review it, amend it, or refer it back, or may make such other order with respect thereto as the court or judge may make with respect to a report of the master or the referee in chambers under The Queen's Bench Rules; and, if so adopted, the report or the part thereof adopted may be enforced as a judgment or order of the court.
Where, in any cause or matter,
(a) all the parties interested who are not under disability consent; or
(b) the cause or matter requires any prolonged examination of documents or a scientific or local investigation which cannot, in the opinion of the court, conveniently be made before a jury or conducted by the court through its ordinary officers; or
(c) the question in dispute consists wholly or in part of matters of account;
the court may, subject to any right to have the matter tried by a jury, at any time, order the whole cause or matter, or any question or issue of fact arising therein, to be tried before a referee.
The report or award of a referee made on any such trial shall, unless set aside by order of the court, be equivalent to the verdict of a jury.
In all cases of reference to, or trial by, a referee or arbitrator under an order of the court, the referee or arbitrator shall be deemed to be an officer of the court, and has such authority, and shall conduct the reference in such a manner, as the rules of court prescribe, and subject thereto as the court directs.
The remuneration to be paid to a referee or arbitrator to whom any matter is referred under order of the court shall be determined by the court.
The evidence of witnesses examined upon a reference under any order of reference, together with the exhibits, shall, forthwith after the making of the report, be transmitted by the referee or arbitrator to the proper officer of the court.
The court has, as to references under order of the court, all the powers that are by this Act conferred on the court as to reference by consent out of court; and a referee or arbitrator appointed by the court has the powers of an arbitrator appointed by or under a submission.
A report, award, judgment, order, or verdict given or made by a referee in any cause or matter referred to, or tried by, him under section 32 or 33, or with respect to any question or issue of fact arising therein, is subject to appeal in like manner as in the case of an appeal from an order or
report of the master of the court; and, on the appeal, a judge in chambers may set aside, vary, amend, or discharge the report, award, judgment, order, or verdict.
A judge may order the sheriff, gaoler, or other officer, having the custody of a prisoner to produce him for examination before a referee, arbitrator, or an umpire.
Any order made under this Act may be made on such terms as to costs, or otherwise, as the authority making the order thinks just.
Upon an appeal from, or motion to set aside, an award any party may by notice require any other party to produce, and the party so required shall produce, upon the hearing of the appeal or motion any original book, paper, or document, in his possession that has been used as an exhibit or given in evidence upon the reference, and that has not been filed with the depositions.
Where it is provided by a written agreement that a valuation or appraisal is to be made by a valuator, valuer, or appraiser, the court may appoint such a valuator, valuer, or appraiser.
The power may be exercised in the like cases, and the proceedings shall be the same, as in the case of the appointment of an arbitrator by the court, except that the court shall not, without the consent of the parties, appoint a valuator, valuer, or appraiser in the place of one who is named in the agreement and who refuses to act, is incapable of acting, or dies.
FEES CHARGEABLE BY ARBITRATORS AND UMPIRES
For every meeting where the reference is not proceeded with, but a postponement is made at the request of any party:
not less than $2. nor more than $5.
For every day's sittings, to consist of not less than six hours:
not less than $10. nor more than $20.
Where a day's sittings consist of more than six hours, for each additional hour:
not less than $2. nor more than $4.
For every sitting not extending to six hours (fractional parts of hours being excluded), where the reference is actually proceeded with, for each hour occupied:
not less than $2. nor more than $4.