Arbitration is a dispute prevention and resolution process.
You can ask an arbitrator to settle a dispute and, if applicable, determine the damages to be paid.
Arbitration can be used instead of a court trial, because in general the arbitrator's decision is final and cannot be appealed (provided the rules of procedure and public order have not been infringed).
In addition, an arbitration hearing can normally be arranged more quickly than a court proceeding.
Last, the discussions that take place during arbitration, and the final settlement, remain private and confidential.
Types of disputes suitable for arbitration
Arbitration is an appropriate way to prevent or settle business disputes involving:
- local and international trade;
- intellectual property;
- labour relations;
- maritime law;
- pharmaceutical law;
- event organization;
Arbitration may, for example, be used following a failure to respect the terms and conditions of a contract.
Possible disputes may concern:
- the quality, price and delivery of products and services;
- the performance of work;
- the promotion and distribution of merchandise;
- the use of patents, trademarks and Internet domain names;
- the terms and conditions of a collective agreement;
Arbitration is prohibited in certain situations, such as family disputes (divorce, child custody, support payments, etc.) and protective regimes (tutorship and curatorship).
When to use arbitration
Arbitration can be used before judicial proceedings have begun, and even when a trial concerning the dispute is under way.
In both cases, both parties must agree to the use of arbitration to settle the dispute.
However, arbitration may also be imposed by a law, regulation or contract.
Location of arbitration hearings
An arbitration hearing may take place in a private setting, such as:
- a workplace;
- a hotel;
- a business centre;
- the premises of a community organization;
- a professional office;
The hearing may also take place in a public setting such as a courthouse or government building.
The costs of arbitration are shared equally between you and the other party, and may include
- the arbitrator's fees
The fees vary, depending on the arbitrator's experience and expertise.
They may also vary depending on the type of dispute under arbitration and the applicable laws.
Labour Code: Informations générales sur la rémunération des arbitres;
- related expenses for travel, rental of the arbitration venue, translation (if necessary), and other administrative expenses (you can ask the arbitrator what administrative expenses are involved);
- the fees for any experts you and the other party retain, jointly, to take part in the hearing;
- expenses reimbursed to witnesses (on agreement with the other party), determined on the same basis as for witnesses who attend court;
- the cost of a court homologation of the arbitration award (optional).
You are responsible for the fees paid to any lawyer or expert you engage to advise you personally or support your own position, and are not shared with the other party.
Role and responsibilities
The arbitrator settles the dispute in accordance with the rules of law applicable in Québec.
The arbitrator may define or adopt rules of procedure in accordance with the applicable legislation.
The arbitrator respects the confidentiality of the process and acts with diligence, impartiality, independence and neutrality.
Arbitrators cannot be prosecuted for an act performed in the course of their arbitration mission, unless they acted in bad faith or committed an intentional or gross fault.
An arbitrator does not need to be accredited or to have received training as an arbitrator, although training in the field of arbitration is a major advantage.
However, an arbitrator must:
- have in-depth knowledge about the arbitration process and the role of an arbitrator;
- understand the nature of the dispute;
- use written and spoken language effectively.
Your role and responsibilities
You are required to uphold the rights and freedoms of the other party and observe other public order rules.
In addition, you must ensure that any steps you take are proportionate to the dispute, in terms of the cost and time involved.
Last, you should make inquiries about the arbitrator's qualifications, fees and availability to ensure that they match your needs.
Conduct of arbitration
You must send the other party a notice stating that you intend to submit your dispute to arbitration (specifying the dispute concerned).
Arbitration may also begin when you receive a notice from the other party.
Choice of the arbitrator
When you and the other party have agreed to use arbitration, you must jointly appoint an arbitrator.
You can choose an arbitrator with specific training (lawyer, notary, engineer, accountant, economist, etc.) or on the basis of the arbitrator's expertise in the field of the dispute.
The following organizations can provide a list of arbitrators:
- Barreau de Montréal
- Arbitration and dispute resolution institute of Canada (IAMC/ADRIC)
- Institut de médiation et d’arbitrage du Québec (IMAQ)
- Canadian Commercial Arbitration Centre (CCAC)
- Arbitration committee of the Canadian Chamber of Commerce
- Secrétariat du travail – Ministère du Travail, de l’Emploi et de la Solidarité sociale (in French)
If you so wish, your dispute may be heard by a panel of three arbitrators. In this case, each party appoints an arbitrator, and the two so appointed appoint the third.
Before the hearing
You will have a preliminary meeting with arbitrator, in person or by telephone, during which you discuss the following points:
- the procedure and rules for the hearing;
- the presentation of evidence (contracts, reports, financial statements, etc.);
- the calling of witnesses (if necessary);
- the date, duration and place of the hearing.
In addition, the arbitrator may ask both parties to submit their positions before the hearing, along with the evidence that supports their positions. You may be given access to the documents submitted by the other party, before the hearing.
During the hearing
The hearing may take place over a period of one or more days.
You and the other party will each present your position.
Throughout the hearing, the arbitrator will direct discussions between you and the other party.
If needed, the arbitrator may ask the people you designate to give testimony at the hearing.
The arbitrator will bring the hearing to an end by taking the matter under advisement in order to announce his or her decision (the arbitration award) at a later date.
After the hearing
The arbitrator will render his or her decision (the arbitration award) in writing. In general, this decision is final and cannot be appealed.
The decision is also private, unlike a court judgment, which is public.
The arbitrator must generally render a decision within three months after taking the matter under advisement.
You may apply to have the award recognized (homologated) by the court to give it the same force and effect as a court judgment. Homologation allows the award to be enforced if you, or the other party, fail to respect it.