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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Canada.
Implementing jurisdictions: Canada, Province of Alberta ('Alberta'), Province of British Columbia ('British Columbia'), Province of Ontario ('Ontario'), Province of Quebec ('Quebec').
As described in the following explanatory note, there are a total of 14 federal, provincial and territorial jurisdictions in Canada, all of which have rules concerning recognition and enforcement of foreign awards under the New York Convention. This questionnaire is limited to the federal and four provincial jurisdictions referred to above, which are considered to be the jurisdictions in which recognition and enforcement of foreign arbitral awards are most likely to be sought in Canada.
Explanatory note: Canada is a federal State comprising ten provinces and three territories. The legal systems of Canada and all its provinces and territories except Quebec are based on common law. The legal system of Quebec is based on civil law.
In Canada, power is divided between the federal government, which has legislative jurisdiction over certain matters throughout Canada, and the government of each province and territory, which has legislative jurisdiction over certain matters within its respective territory. In certain areas, the jurisdiction of the federal government and that of the provinces and territories overlap. The federal government and each province and territory has its own court system composed of a court of first instance and a court of appeal, with final recourse to the Supreme Court of Canada.
The federal government signs treaties that bind Canada internationally. Before a treaty comes into force as a matter of domestic law, however, it must be implemented by each level of government with jurisdiction over affected matters. All Canadian governments (federal, provincial and territorial) have some jurisdiction over matters affected by recognition and enforcement of foreign arbitral awards. Accordingly, all Canadian jurisdictions and their respective courts have rules concerning recognition and enforcement of foreign awards under the New York Convention.
In late 2011, a working group of the Uniform Law Conference of Canada commenced a review of the existing model International Commercial Arbitration Act, with a view to developing reform recommendations for a new model statute. In 2014, the conference approved the working group’s final report, which included a proposed new uniform International Commercial Arbitration Act for implementation throughout Canada. To date, Ontario, British Columbia have adopted the Uniform Act (2014), and the Alberta Law Reform Institute recommended that Alberta adopt it in April 2019.
2. Date of entry into force of the New York Convention
Canada: 10 Aug. 1986.
(Source: United Nations Foreign Arbitral Awards Convention Act, R.S.C. 1985, c. 16 (2nd supp.) ('UNFAACA').)
Alberta: 15 Aug. 1986.
Source: International Commercial Arbitration Act, R.S.A. 2000, c. I-5 ('ICAA').)
British Columbia: 2 Dec. 1985.
(Source: Foreign Arbitral Awards Act, R.S.B.C. 1996, c. 154 ('FAAA').)
Ontario: 10 Aug. 1986.
(Source: Foreign Arbitral Awards Act, S.O. 1986, c. 25. This Act was repealed when the International Commercial Arbitration Act, R.S.O. 1990, c. I.9 ('ICAA 1990') came into force on 8 June 1988. The ICAA 1990 has since been replaced with the International Commercial Arbitration Act 2017 (‘ICAA 2017’), S.O. 2017, c. 2, sch. 5.)
Quebec: 11 Nov. 1986.
(Source: Act to Amend the Civil Code and the Code of Civil Procedure in respect of arbitration, S.Q. 1986, c. 73.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
No.
(b) commercial relationships?
Canada has declared a 'commercial relationships' reservation under Art. I(3) of the New York Convention in the following terms: 'The Government of Canada declares that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the laws of Canada, except in the case of the Province of Quebec where the law does not provide for such limitation.'
(Source: Status of Multilateral Treaties Deposited with the Secretary-General, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 330 U.N.T.S. 3, online: United Nations Treaty Collection)
The 'commercial relationships' reservation thus applies to recognition and enforcement of foreign awards under the New York Convention in all Canadian jurisdictions except Quebec.
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement is sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
Canada: Canadian federal law does not address this question. However, the matter is addressed under provincial law with the result that some awards rendered within Canada are not considered as domestic awards (see below).
Alberta: As per the UNCITRAL Model Law, the Alberta ICAA applies to awards rendered in Canada where: (i) at the time of conclusion of the arbitration agreement, the parties have their places of business in different States; (ii) a substantial part of the obligations of the commercial relationship is to be performed outside Canada; or (iii) the subject matter of the dispute is most closely connected with a State other than Canada.
(Source: ICAA, Schedule 2, Art. 1(3).)
British Columbia: As per the UNCITRAL Model Law, the ICAA applies to awards rendered in Canada where: (i) at the time of conclusion of the arbitration agreement, the parties have their places of business in different States; (ii) a substantial part of the obligations of the commercial relationship is to be performed outside Canada; or (iii) the subject matter of the dispute is most closely connected with a State other than Canada.
(Source: International Commercial Arbitration Act, R.S.B.C. 1996, c. 233 ('ICAA 2018'), s. 1(3). The BC ICAA was substantially amended effective 17 May 2018 to account for revisions to the 2006 UNCITRAL Model Law along with other international best practices)
Ontario: As per the UNCITRAL Model Law, the Ontario ICAA 2017 applies to awards rendered in Canada where: (i) at the time of conclusion of the arbitration agreement, the parties have their places of business in different States; (ii) a substantial part of the obligations of the commercial relationship is to be performed outside Canada; or (iii) the subject matter of the dispute is most closely connected with a State other than Canada.
(Source: ICAA 2017, Schedule 1, Art. 1(3))
Quebec: Awards rendered outside Quebec, including in other Canadian provinces and territories, are not considered domestic awards and the New York Convention accordingly applies to all such awards.
(Source: Code of Civil Procedure, R.S.Q. c. C-25.01, Art. 652.)
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
Canada: (i) United Nations Foreign Arbitral Awards Convention Act, R.S.C. 1985, c. 16 (2nd supp.); (ii) Commercial Arbitration Act, R.S.C. 1985, c. 17 (2nd Supp.); (iii) Federal Courts Act, R.S.C. 1985, c. F-7; (iv) Federal Courts Rules, SOR/98-106; (v) Interpretation Act, R.S.C. 1985, c. I-2; (vi) Supreme Court Act, R.S.C. 1985, c. S-26; and (vii) Rules of the Supreme Court of Canada, SOR/2002-156.
Alberta: (i) International Commercial Arbitration Act, R.S.A. 2000, c. I-5 (the Alberta Law Reform Institute reviewed the Uniform Act (2014) to determine the manner in which it may be implemented in Alberta. A Final Report was publically released in April 2019 recommending its adoption); (ii) Reciprocal Enforcement of Judgments Act, R.S.A. 2000, c. R-6; (iii) Court of Queen's Bench Act, R.S.A. 2000, c. C-31; (iv) Judicature Act, R.S.A. 2000 c. J-2; (v) Alberta Rules of Court, Alta. Reg. 124/2010 ('Alberta Rules of Court'); (vi) Alberta Rules of Court, Alta. Reg. 390/1968; (vii) Court of Appeal Act, R.S.A. 2000, c. C-30; (viii) Supreme Court Act, R.S.C. 1985, c. S-26; and (ix) Rules of the Supreme Court of Canada, SOR/2002-156.
British Columbia: (i) Foreign Arbitral Awards Act, R.S.B.C. 1996, c. 154; (ii) ICAA 2018; (iii) Court Order Enforcement Act, R.S.B.C. 1996, c. 78; (iv) Interpretation Act, R.S.B.C. 1996, c. 238; (v) Court Rules Act, R.S.B.C. 1996, c. 80; (vi) Court of Appeal Act, R.S.B.C. 1996, c. 77; (vii) Supreme Court Civil Rules, B.C. Reg. 168/2009; (viii) Supreme Court Act, R.S.C. 1985, c. S-26; and (ix) Rules of the Supreme Court of Canada, SOR/2002-156. (Note: an amendment to the BC ICAA provides that ‘third party funding for an arbitration is not contrary to the public policy in British Columbia’.)
Ontario: (i) ICAA 2017; (ii) Courts of Justice Act, R.S.O. 1990, c. C-43; (iii) Rules of Civil Procedure, R.R.O. 1990, Reg. 194; (iv) Supreme Court Act, R.S.C. 1985, c. S-26; and (v) Rules of the Supreme Court of Canada, SOR/2002-156.
Quebec: (i) Civil Code of Québec, S.Q., 1991, c. 64; (ii) Code of Civil Procedure, R.S.Q. c. C-25.01; (iii) Charter of the French language, R.S.Q. c. C-11; (iv) Charter of Human Rights and Freedoms, R.S.Q. c. C-12; (v) Supreme Court Act, R.S.C. 1985, c. S-26; and (vi) Rules of the Supreme Court of Canada, SOR/2002-156.
In each implementing jurisdiction within Canada, judge-made rules are also a source of law.
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
Canada: Yes.
Alberta: Yes.
British Columbia: Awards for the payment of money or the return of personal property, to which either the FAAA or the ICAA 2018 apply, are subject to a limitation period. There is no limitation period for FAAA or ICAA awards for the possession of land in certain circumstances.
Ontario: Yes.
Quebec: Yes.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
Canada: The limitation period for recognition and enforcement of foreign awards in the Federal Court is 6 years.
(Source: Federal Courts Act, s. 39(2); Compania Maritima Villa Nova S.A. v. Northern Sales Co., [1992] 1 F.C. 550 (C.A.).)
Neither federal legislation nor jurisprudence addresses whether the 6-year limitation period starts to run as of the date of the award or (where applicable) as of the disposition of any appeal or the expiry of the time limit for such appeal. It is considered prudent to count the limitation period from the date the award is rendered, despite the fact that in cases where an appeal lies from an award, federal law provides that the award may not be registered until any appeal has been disposed of or until the time limit for such appeal has expired.
(Source: Federal Courts Rules, r. 329(1)(h).)
Alberta: Alberta legislation does not expressly provide for a limitation period applicable to recognition and enforcement of foreign awards, but recent jurisprudence addresses the issue directly. The Alberta Court of Appeal held that the applicable limitation period for foreign judgments is 2 years, and that the same principles apply with respect to a foreign arbitral award. The Supreme Court of Canada has upheld this decision. It is also worth noting that in making its determination the Supreme Court found that an arbitral award is not ‘a judgment or a court order for the payment of money’ and is instead subject to the general 2-year limitation period applicable to most causes of action, per section 3 of the Alberta Limitations Act.
(Source: Yugraneft Corp. v. Rexx Management Corp., 2007 ABQB 450; 2008 ABCA 274, 2010 SCC 19.)
British Columbia: An action for recognition and enforcement of an arbitral award for the payment of money or the return of personal property, and to which either the FAAA or the ICAA 2018 applies, is subject to a 10-year limitation period. An action consequent upon an arbitral award for the possession of land to which either the FAAA or the ICAA 2018 applies is not governed by a limitation period and may be brought at any time.
Judicial interpretations of the British Colombia Limitations Act hold that limitation periods established under that Act (which would apply to arbitral awards under the FAAA or the ICAA) only begin to run on the date on which the right to bring an action on the award or judgment in British Columbia arises.
Legislation on court jurisdiction provides that a real and substantial connection is presumed to exist with respect to proceedings to enforce a foreign arbitral award. The presumption is rebuttable. The implication of the legislation for limitation purposes has not been judicially considered in British Columbia. In the absence of judicial interpretation of the new legislation, it would be prudent to assume that the limitation period for the enforcement of arbitral awards to which the FAAA or the ICAA 2018 apply begins to run when the arbitral award is rendered.
(Source: Limitation Act, S.B.C. 2012, C. 13, ss. 2(1)(e), 7(a) and (b), 30; Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, ss. 3 and 10(k).)
Ontario: Ontario legislation provides that an application for recognition or enforcement of an arbitral award (or both) must be made after the later of 31 Dec. 2018 and the tenth anniversary of either the date on which the award was made or, if proceedings at the place of arbitration to set aside the award have been commenced, the date on which those proceedings concluded.
(Source: ICAA 2017, s. 10; Limitations Act, S.O. 2002, c. 24, sch. B, s. 19.)
Quebec: Quebec legislation does not expressly provide for a limitation period applicable to recognition and enforcement of foreign awards and there is no jurisprudence addressing the issue directly. However, Quebec courts have held that the applicable period for domestic awards is 10 years from the date the award is rendered and it is likely that the same 10-year period would apply to a foreign award. The question has yet to be put to the Quebec courts.
(Source: Civil Code of Quebec, Art. 2924; Transport Michel Vaillancourt Inc. v. Cormier, 2006 QCCS 803.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Canada: Federal Court.
The Federal Court may only assume jurisdiction over recognition and enforcement of foreign awards where the award deals in whole or substantially with a matter over which the federal parliament has legislative power under the Canadian Constitution.
(Source: UNFAACA, s. 6; Interpretation Act, s. 35(1), 'superior court'; ITO-International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752.)
Alberta: Alberta Court of Queen's Bench.
(Source: ICAA, s. 9.)
British Columbia: British Colombia Supreme Court.
(Source: FAAA, s. 4; ICAA 2018, s. 35(1).)
Ontario: Ontario Superior Court of Justice.
(Source: ICAA 2017, s. 6(2).)
Quebec: (i) Quebec Superior Court (awards in an amount of CAD 85,000 or greater); and (ii) Court of Quebec (awards in an amount of less than CAD 85,000).
(Source: Code of Civil Procedure, Arts. 33, 35, 645.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of the respondent in the jurisdiction, etc.)?
Canada: There are no jurisdictional requirements.
Alberta: Same.
British Columbia: Same.
Ontario: Same.
Quebec: Same. In two isolated cases, Quebec courts suggested, without deciding, that jurisdiction could be refused on grounds of lack of personal jurisdiction over the respondent.
(Source: Argo Films v. Ciné 360 Inc., [1991] R.J.Q. 1602 (C.A.); C.I.C. Corp. v. Thermo-Rite Co., J.E. 97-2221 (C.S.).)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
Canada: The first decision may be obtained through ex parte or inter partes proceedings.
(Source: Federal Courts Rules, r. 328(1).)
Alberta: If the foreign jurisdiction is a reciprocating jurisdiction, the enforcement of foreign arbitral awards, where the award has become enforceable at the seat of arbitration in the same manner as a court order in that state, is granted by way of ex parte proceedings. Otherwise, the first decision is obtained through inter partes proceedings by way of an Originating Application.
(Source: Alberta Rules of Court, Part 3, Division 2; ICAA, s. 3; Reciprocal Enforcement of Judgments Act.)
British Columbia: If the foreign jurisdiction is a reciprocating jurisdiction, the enforcement of foreign arbitral awards, where the award has become enforceable at the seat of arbitration in the same manner as a court order in that state, is granted by way of ex parte proceedings. Otherwise, the first decision is made inter partes by way of petition
(Source: Supreme Court Civil Rules, Part 16; Court Order Enforcement Act, s. 28.)
Ontario: The first decision is obtained through inter partes proceedings.
(Source: Rules of Civil Procedure, rr. 14.05(3), 38.06(1); Schreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608 (Gen. Div.).)
Quebec: The first decision is normally obtained through inter partes proceedings. In order to proceed ex parte, the applicant must obtain court authorization, which will be granted only in exceptional circumstances, e.g. demonstrable and justifiable fear that the debtor will remove assets from the jurisdiction immediately upon being served with the proceedings.
(Source: Code of Civil Procedure, Arts. 116, 140, 507, 518.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
British Columbia: Yes.
(b) How many levels of appeal or recourse are available against this decision?
Canada: Two. A final decision of the Federal Court may be appealed to the Federal Court of Appeal. A final decision of the Federal Court of Appeal may be appealed, with leave, to the Supreme Court of Canada.
(Source: Federal Courts Act, s. 27; Supreme Court Act, ss. 37.1, 40.)
Alberta: Two. A final decision of the Court of Queen's Bench may be appealed to the Court of Appeal of Alberta. Where the matter in controversy does not exceed CAD 25,000, no appeal lies without leave. A final decision of the Court of Appeal may be appealed, with leave, to the Supreme Court of Canada.
(Source: Alberta Rules of Court, Alta. Reg. 390/1968, r. 505(4); Supreme Court Act, s. 40.)
British Columbia: Two. A final decision of the British Colombia Supreme Court may be appealed to the British Columbia Court of Appeal. A final decision of the Court of Appeal may be appealed, with leave, to the Supreme Court of Canada.
(Source: Court of Appeal Act, s. 6; Supreme Court Act, s. 40.)
Ontario: Two or three, depending on the amount involved. A final decision of the Superior Court of Justice in an amount of CAD 50,000, or less or in respect of an amount claimed of CAD 50,000 or less, may be appealed to the Divisional Court. From the Divisional Court, a party may appeal, with leave, to the Ontario Court of Appeal. A final decision of the Superior Court of Justice in an amount greater than CAD 50,000, or in respect of an amount claimed of more than CAD 50,000, may be appealed directly to the Court of Appeal. In either case, a decision of the Court of Appeal may be appealed, with leave, to the Supreme Court of Canada.
(Source: Courts of Justice Act, ss. 6, 19; Supreme Court Act, s. 40.)
Quebec: Two. A final decision of the Superior Court may be appealed to the Quebec Court of Appeal. (Recent authority suggests that prior leave of a single judge of the Court of Appeal may be required for such an appeal.) A final decision of the Court of Appeal can be appealed, with leave, to the Supreme Court of Canada.
(Source: Code of Civil Procedure, Art. 26 paras. 1(1) and 2(3); Viandes du Breton Inc. v. Notre-Dame-du-Lac (Ville de), 2006 QCCA 358; Québec (Ministre de la Santé et des Services sociaux) v. Association des chirurgiens dentistes du Québec, J.E. 2002-703 (C.A.); Supreme Court Act, s. 40.)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets?
Canada: The judgment recognizing an award may be executed against assets immediately after the court order recognizing the award is served on the debtor. However, a party appealing the judgment may bring a motion asking the court to stay enforcement of the judgment pending appeal. If the stay is granted, execution is suspended until the appeal is disposed of or the stay is lifted. Where leave is granted to appeal to the Supreme Court of Canada, judgment is automatically stayed pending the disposition of the appeal.
(Source: Federal Courts Act, s. 50(1); Federal Courts Rules, rr. 334, 398; Supreme Court Act, ss. 65, 65.1; Rules of the Supreme Court of Canada, r. 62.)
Alberta: The judgment recognizing an award may be executed against assets immediately after the judgment is issued, or may be stayed at or after the time the judgment is issued. An appeal does not operate as a stay of enforcement under the decision appealed from unless the Court of Queen's Bench stays enforcement of the decision pending appeal. A judge of the Court of Appeal may also stay enforcement de novo in various circumstances.
(Source: Alberta Rules of Court, Alta. Reg. 390/1968, rr. 508(1) and 508(3); Alberta Rules of Court, r. 9.6; Supreme Court Act, s. 65, 65.1; Rules of the Supreme Court of Canada, r. 62.)
British Columbia: The judgment recognizing an award may be executed against assets immediately after the judgment is issued. However, a party may obtain an order staying execution pending appeal.
(Source: Supreme Court Civil Rules, rr. 13-2; Court of Appeal Act, s. 18(1); Supreme Court Act, s. 65, 65.1; Rules of the Supreme Court of Canada, r. 62.)
Ontario: The judgment recognizing an award may be executed against assets immediately after the judgment is issued. However, where a party delivers a notice of appeal, execution is stayed automatically until the appeal is disposed of, unless the court of appeal lifts the stay. A party may also obtain a court order staying execution pending delivery of the notice of appeal.
(Source: Rules of Civil Procedure, r. 63; Supreme Court Act, ss. 65, 65.1; Rules of the Supreme Court of Canada, r. 62.)
Quebec: The judgment recognizing an award may be executed against assets after the expiry of the 30-day time limit for appeal. Upon application, provisional execution may be ordered in case of exceptional urgency or for another reason deemed sufficient, in particular where it may be demonstrated that the appeal is likely to cause serious or irreparable injury. However, where a party appeals the judgment, execution is automatically suspended until the appeal is disposed of, unless provisional execution has been ordered.
(Source: Code of Civil Procedure, Arts. 645(1), 656, 360, 361, 666(1) and (2); Supreme Court Act, ss. 65, 65.1; Rules of the Supreme Court of Canada, r. 62.)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. the arbitral award, the contract containing the arbitration clause, affidavits, witness statements, etc.)?
Canada: The applicant must supply the court with:
(Source: Federal Courts Rules, r. 329(1); UNFAACA, Schedule, Art. IV(1).)
Alberta: The applicant must supply the court with: (i) in the normal course, a sworn affidavit, based on personal knowledge, stating the facts on which the application is based; (ii) a duly authenticated original award or duly certified copy; and (iii) the original arbitration agreement or a duly certified copy.
(Source: ICAA, s. 4 and Schedule 2, Art. 35(2).)
British Columbia: An applicant seeking to enforce an award under the FAAA or the ICAA 2018 must supply the court with: (i) a sworn affidavit, based on personal knowledge, stating the facts on which the application is based; (ii) a duly authenticated original arbitral award or a duly certified copy; and (iii) the original arbitration agreement or a duly certified copy.
(Source: FAAA, Schedule, Art. IV(1); ICAA 2018, s. 35.)
Ontario: The applicant must supply the court with:
There is no specific guidance as to the meaning of 'due certification'. In one case, the Ontario Superior Court of Justice expressly accepted 'due certification' of an arbitral award by the arbitral institution that issued the award, but rejected the affidavit of a solicitor of the applicant as the solicitor was not an official to whom the original was entrusted.
(Source: ICAA 2017, Schedule 1, Art. IV(1); Rules of Civil Procedure, r. 39.01; ICCA, Schedule, Art. 35(2); Kanto Yakin Kogyo Kabushiki-Kaisha v. Can-Eng Manufacturing Ltd. (1992), 7 O.R. (3d) 779 (Gen. Div.).)
Quebec: The applicant must supply the court with: (i) a sworn affidavit, based on personal knowledge, stating the facts on which the application is based; (ii) the authenticated original award or an authenticated copy; and (iii) the authenticated original arbitration agreement or an authenticated copy. The originals or copies must be authenticated by: (i) an official representative of the Government of Canada, (ii) a delegate-general, delegate or head of delegation of Quebec, carrying on his duties outside Quebec, or (iii) the government or a public officer of the place where the award was made.
(Source: Code of Civil Procedure, Arts. 101,105, 652(2).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. the entire contract or only the arbitration clause)?
Canada: The award must be provided in its entirety, including the reasons for the award and any dissenting opinions. The arbitration agreement also must be provided in its entirety. Where the arbitration agreement consists of a clause in a broader contract, only the arbitration clause needs to be provided. However, as a practical matter, it may be necessary to provide the entire contract where the arbitration clause refers to other clauses of the contract (e.g. by providing for the arbitration of disputes 'arising out of or in connection with the contract') or does not include all elements of the arbitration agreement.
(Source: Federal Courts Rules, r. 329(1).)
Alberta: Same as under Ontario law, as below.
(Source: ICAA, s. 4 and Schedule 2, Arts. 7, 35(2).)
British Columbia: Same as under Ontario law, as below.
(Source: ICAA 2018, ss. 7, 35(2).)
Ontario: Ontario follows the UNCITRAL Model Law, which suggests that the award in its entirety, including the reasons for the award and any dissenting opinions, be provided. The rule and practice in Ontario regarding the submission of the arbitration agreement are the same as under Canadian federal law, described above.
(Source: ICAA 2017, Schedule 2, Arts. 7, 35(2).)
Quebec: Same as under Ontario law, described above.
(Source: Code of Civil Procedure, Art. 652(2); Civil Code of Québec, Art. 2642.)
(c) Are originals or duly certified copies required?
Canada: Authenticated originals or duly certified copies are admissible.
(Source: ICAA, s. 4, Schedule 1, Art. IV(1) Schedule 2, Art. 35(2).)
(Source: FAAA, Schedule 2, Art. IV(1); ICAA 2018, s. 35(2).)
(Source: ICAA 2017, Schedule 1, Art. IV(1), and Schedule 2, Art. 35(2).)
Quebec: Same.
(Source: Code of Civil Procedure, Art. 652(2).)
(d) How many originals or duly certified copies are required?
Canada: The court requires one duly authenticated original or duly certified copy of each of the award and arbitration agreement. Other copies of these documents, e.g. for the court and/or service on respondents, may be certified by a solicitor as true copies of the original or certified copy.
(Source: FAAA, Schedule, Art. IV(1); ICAA 2018, s. 35(2).)
(Source: ICAA 2017, Schedule 1, Art. IV(1), and Schedule 1, Art. 35(2).)
(e) Does the authority or court keep the originals that are filed?
Canada: The court will return the documents to the applicant once the time limit for appealing the judgment recognizing the award has expired, or once any appeal of the judgment has been disposed of. Documents not returned or claimed within one year may, on order of the court, be destroyed.
(Source: Federal Courts Rules, r. 27.)
Alberta: The court will return the originals to the applicant once the time limit for appealing the judgment recognizing the award has expired, or once any appeal of the judgment has been disposed of.
(Source: Alberta Rules of Court, r. 13.26(3).)
British Columbia: The court may return documents (exhibits) to the party that tendered these documents once the time for appeal from judgment has expired or after the disposition of an appeal, new trial or further appeal.
(Source: Supreme Courts Civil Rules, Rule 12-5(12).)
Quebec: The parties may retrieve the documents filed with the court once the time limit for appealing the judgment recognizing the award has expired, or once any appeal of the judgment has been disposed of. Unless otherwise ordered by the chief justice of the court, documents not retrieved within one year are destroyed.
(Source: Code of Civil Procedure, Art. 108.)
13.
(a) Is it necessary to provide a translation of the documents supplied?
(Source: UNFAACA, Schedule, Art. IV(2).)
(Source: ICAA, Schedule 1, Art. IV (2), Schedule 2, Art. 35(2).)
(Source: FAAA, Schedule, Art. IV(2); ICAA 2018, s. 35(3).)
(Source: ICAA 2017, Schedule 1, Art. IV(2), and Schedule 2, Art. 35(2).)
(Source: Code of Civil Procedure, Art. 652(2) and (3); New York Convention, Art. IV(2).)
(b) If yes, into what language?
Canada: English or French.
(Source: Federal Courts Rules, r. 68(1).)
Alberta: English or French.
British Columbia: English or French.
Ontario: English, unless the proceeding to recognize and/or enforce the award is being conducted as a 'bilingual proceeding' under the Ontario Courts of Justice Act, in which case the translation may be into English or French.
(Source: ICAA 2017, Schedule 1, Art. IV(2); Courts of Justice Act, ss. 125, 126.)
Quebec: English or French.
(Source: Charter of the French Language, s. 7(4).)
(c) Is it necessary for the translations to be certified and, if yes, by whom (by an official or sworn translator or by a diplomatic or consular agent (of which country?) or by some other person)?
Canada: Yes. The translation must be certified by an official or sworn translator or by a diplomatic or consular agent.
Alberta: Yes. The translation must be certified by an official or sworn translator or by a diplomatic or consular agent.
(Source: ICAA, Schedule 1, Art. IV (2).)
British Columbia: Yes. Under the FAAA, translations are to be certified by an official or sworn translator or by a diplomatic or consular agent. The ICAA 2018 does not specify who must certify the translation.
Ontario: Yes. The translation must be certified by means of an affidavit of the translator.
(Source: ICAA 2017, Schedule 1, Art. IV(2), and Schedule 2, Art. 35(2); Courts of Justice Act, ss. 125(2)(b), 126.)
Quebec: Yes. Quebec law does not expressly specify who may certify a translation of a foreign award. However, pursuant to the New York Convention, the translation must be certified by an official or sworn translator or by a diplomatic or consular agent. As a practical matter, if it is anticipated that the translation may be contested, it is prudent to have the translation certified as well by a certified translator in Quebec.
(Source: Code of Civil Procedure, Art. 652(3); New York Convention, Art. IV(2); see also by analogy Code of Civil Procedure, Art. 503(3).)
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. the entire award or only the part setting forth the decisions; the entire contract or only the arbitration clause)?
Canada: The applicant must provide full translations of documents required to be submitted.
(Source: Federal Courts Rules, rr. 68(1), 329(1).)
Alberta: Alberta law requires the 'original arbitration agreement' and 'original award' to be provided. The plain meaning of these words suggests that the documents should be provided in their entirety, including the reasons for the award and any dissenting opinions.
(Source: ICAA, s. 4, Schedule 1, Art. IV(1), Schedule 2, Arts. 7, 35(2).)
(Source: FAAA, Schedule, Art. IV(1); ICAA 2018, ss. 7, 35(2).)
(Source: Courts of Justice Act, ss. 125, 126; ICAA 2017, Schedule 1, Art. IV(2), and Schedule 2, Arts. 7, 35(2).)
(Source: Code of Civil Procedure, Art. 652(3); New York Convention, Art. IV(2); Charter of the French Language, s. 7(4); Civil Code of Québec, Art. 2642.)
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
(Source: Federal Courts Act, s. 50(1).)
(Source: Alberta Rules of Court, r. 1.4(2)(h).)
(Source: Supreme Court Civil Rules, rr. 19-3(8) and (9); Law and Equity Act, R.S.B.C. 1996, c. 253, s. 8(3).)
(Source: Courts of Justice Act, s. 106.)
(Source: Code of Civil Procedure, Art. 654.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
Canada: Pursuant to Canadian insolvency legislation: (i) legal proceedings for recognition and enforcement against an insolvent debtor may be stayed for the duration of the insolvency proceedings; (ii) recovery of the amount awarded may be affected by a restructuring plan; and (iii) enforcement of the award may be stayed to avoid giving preference to a foreign creditor.
Pursuant to Canadian competition legislation, at the request of the Commissioner of Competition, the Competition Tribunal can order that no measures be taken in Canada to implement a foreign award if doing so would, among other things, adversely affect competition in Canada.
There is no case law in Canada on staying legal proceedings for recognition and enforcement on the basis of forum non conveniens, however it is possible that forum non conveniens might be a basis for a stay if the application for recognition and enforcement requires the resolution of an issue best dealt with by another jurisdiction.
(Source: Bankruptcy and Insolvency Act, R.S. 1985, c. B-3, ss. 69, 95; Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 11; Competition Act, R.S.C. 1985, c. C-34, s. 82; Monegasque de Reassurances S.A.M. v. NAK Naftogaz of Ukraine, 311 F.3d 488 (2d Cir. 2002).)
Same in Alberta, British Columbia, Ontario and Quebec.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
Canada: No. However, upon application, the court may exercise its discretion to order the provision of security.
(Source: Commercial Arbitration Act, Schedule, Art. 36(2).)
(Source: ICAA, Schedule 1, Art. VI, Schedule 2, Art. 36(2).)
(Source: FAAA, Schedule, Art. VI; ICAA 2018, s. 36(2).)
(Source: ICAA 2017, Schedule 1, Art. VI and Schedule 2, Art. 36(2).)
(Source: Code of Civil Procedure, Arts. 654(2), 655.)
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Canada: Yes. A motion may be brought seeking an order of the court to preserve the confidentiality of documents. However, courts are generally averse to granting such orders.
(Source: Federal Courts Rules, r. 151; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.)
(Source: Alberta Rules of Court, Part 6, Division 4; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.)
(Source: Supreme Court Civil Rules, r. 23-1(1); Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.)
(Source: Courts of Justice Act, s. 137(2); Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.)
(Source: Code of Civil Procedure, Arts 11 and 12; Charter of Human Rights and Freedoms, s. 23; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Canada: No. A motion can be brought seeking an order of the court to have the hearing held in camera. However, courts are generally averse to granting such orders.
(Source: Federal Courts Rules, r. 29; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.)
(Source: Supreme Court Civil Rules, r. 22-1(5); Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.)
(Source: Courts of Justice Act, s. 135; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.)
(c) Are judgements on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business secrets or State secrets)?
Canada: Yes. A motion may be brought seeking an order of the court to preserve the confidentiality of any information in the court record, including a judgment on recognition and enforcement. Such an order continues to have effect, including for the duration of any appeal and after final judgment, until the court orders otherwise. However, courts are generally averse to granting such orders.
(Source: Federal Courts Act, s. 51; Federal Courts Rules, r. 152; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.)
(Source: Courts of Justice Act, s. 137(2); Rules of Civil Procedure, rr. 59.02, 59.05; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.)
(Source: Code of Civil Procedure, Arts. 11 and 12; Charter of Human Rights and Freedoms, s. 23; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Canada: Only final awards are subject to recognition and enforcement. Partial awards, as long as they are final and binding, may be recognized and enforced.
(Source: Federal Court Rules, r. 329(1)(h); UNFAACA, Schedule, Art. V(1)(e).)
(Source: ICAA, s. 4, Schedule 1, Art. 5(1)(e), and Schedule 2, Art. 36(1)(a)(v).)
(Source: FAAA, Schedule, Art. V(1)(e); ICAA 2018, s. 36(1)(a)(vi).)
(Source: ICAA 2017, Schedule 1, Art. 5(1)(e), and Schedule 2, Art. 36(1)(a)(v).)
(Source: Code of Civil Procedure, Arts. 653(2)(6), 654.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. an order requiring a party to deliver up share certificates or other property)?
Canada: A party may obtain recognition and enforcement of the following types of non-monetary relief in foreign awards: (i) an order for recovery or delivery of the possession of land; (ii) an order for recovery or delivery of personal property; and (iii) an order requiring a person to perform, or abstain from, an act.
(Source: UNFAACA, Schedule, Art. III; Federal Courts Act, s. 44; Federal Courts Rules, rr. 427, 428, 429.)
(Source: ICAA, Schedule 2, Art. 35(1); Alberta Rules of Court, Part 9, Division 4.)
(Source: ICAA 2018, s. 35(1); Supreme Court Civil Rules, r. 13-2.)
(Source: ICAA 2017, Schedule, Art. 35(1); Courts of Justice Act, ss. 96, 101; Rules of Civil Procedure, rr. 60.03, 60.04, 60.05.)
Quebec: Quebec law does not address this point directly. In principle, there is nothing limiting a court's power to recognize and enforce non-monetary relief awarded in foreign arbitral awards, where the court has jurisdiction to give such relief. Quebec law permits a court to award the same types of relief as listed above under Canadian federal and Ontario law.
(Source: Code of Civil Procedure, Arts. 509, 517, 518, 652(3), 696, 702, 703; New York Convention, Art. III.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
Canada: Canadian federal legislation does not specify whether a party may obtain recognition and enforcement of only part of the relief granted in a foreign award, and case law has not addressed this question directly. Where part of the award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or if the award contains decisions on matters beyond the scope of the agreement, and such irregularities can be severed from the remainder of the award, then the court may recognize and enforce only the remainder of the award.
(Source: UNFAACA, Schedule, Art. V(1)(c).)
(Source: ICAA, s. 4, Schedule 1, Art. V(1)(c), Schedule 2, Art. 36(1)(a)(iii).)
(Source: FAAA, Schedule, Art. V(1)(c); ICAA 2018, s. 36(1)(a)(iv).)
(Source: ICAA 2017, Schedule 1, Art. V(1)(c), and Schedule 2, Art. 36(1)(a)(iii).)
(Source: Code of Civil Procedure, Art. 663.)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
Canada: Canadian federal legislation adopts the language of the Convention, which gives Canadian courts discretion to refuse to recognize or enforce a foreign award that has been set aside by the competent authority. Neither legislation nor case law interpreting it describes the circumstances under which the court can or should exercise that discretion and refuse to recognize or enforce an award that has been set aside by the competent authority.
(Source: UNFAACA, Schedule, Art. V 1(e); Commercial Arbitration Act, R.S.C. 1985, c. 17 (2d supp.), Schedule, Art. 36(1)(a)(v).)
Alberta: Alberta legislation does not specify whether a foreign award which has been set aside by a competent authority may nonetheless be recognized and enforced, and there is no case law addressing the issue directly.
(Source: ICAA, Schedule 1, Art. V(1)(e), Schedule 2, Art. 36(1)(a)(v).)
Ontario: Same. An Ontario court has acknowledged, in an obiter dictum, the discretion granted by legislation to recognize or enforce an award that has been set aside, but no court has exercised its discretion to do so.
(Source: ICAA 2017, Schedule 1, Art. V(1)(e), Schedule 2, Art. 36(1)(a)(v); Schreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608 (Gen. Div.).)
Quebec: Same as under Canadian federal law, described above.
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
No other procedural or practical requirement in Canada, Alberta, British Columbia, Ontario, or Quebec.
Country Rapporteur: Craig R. Chiasson
Other contributors: Paige Burnham