Thank you, Mr. Speaker. Mr. Speaker, Bill 48, Arbitration Act. Bill 48 is based on the Uniform Arbitration Act of 2016, referred to as the Model Act in this report. The Model Act was prepared by the Uniform Law Conference of Canada, an organization promoting uniformity of legislation in Canada.
The goal of the Uniform Law Conference of Canada is that jurisdictions adopt uniform or model acts to harmonize laws across the country through various forms of enactment, with changes related to drafting style with substantially the same wording, with modifications, or in part. The perception is that the closer a jurisdiction adheres to the Model Act, the greater the harmonization of law will be among Canadian jurisdictions.
Background
Previous national initiatives to align arbitration legislation reach back to the 1980s when Canada adopted the United Nations model law on international commercial arbitration. All Canadian jurisdictions except Quebec adopted the model law, including the NWT's International Commercial Arbitration Act.
In 2011, the Uniform Law Conference of Canada took on the task of reforming existing domestic arbitration legislation. This led to the development of the Model Act in 2016.
The Uniform Arbitration Act (2016)
The policy goal of the domestic Model Act is to increase the consistency in arbitration legislation across the country. Arbitration legislation recognizes the choice to arbitrate as a choice to participate in alternative dispute resolution in substitution for court litigations. Choosing alternative dispute resolution was not intended to replicate court processes or to be a precursor to court proceedings.
Since the publication of the Model Act on December 1, 2016, British Columbia adopted its arbitration statute in 2020 based on the Model Act. Domestic legislation of other jurisdictions predates the Model Act. The NWT would be the second Canadian jurisdiction to adopt modern domestic arbitration legislation.
Proposed Changes to the NWT Arbitration Act (1988)
Bill 48 replaces the existing Arbitration Act (1988) and is more specific, with 76 sections (or 45 pages) compared to 41 sections (or 11 pages). Key changes in Bill 48 include the following subject areas.
- Commencing Arbitral Proceedings: Bill 48 provides a clear procedure for starting proceedings, if not specified in the arbitration agreement;
- Direct Evidence of Witnesses: Bill 48 requires that witnesses' direct evidence be written, unless otherwise agreed by the parties or directed by the arbitrator;
- Interim Orders: Bill 48 provides a procedure for obtaining and enforcing interim measures and a specific procedure for obtaining preliminary orders without notice to other parties;
- Appeals: Bill 48 provides the right of appeal to the Supreme Court of the Northwest Territories. It details where a Supreme Court decision cannot be appealed and where a decision of the Supreme Court may be further appealed to the Court of Appeal, for example, subsection 25(3) jurisdictional decision and awards, and that parties may opt out of appeal rights;
- Confidentiality: Bill 48 expressly prohibits the disclosure of confidential information;
- Expanded Powers and Duties of Arbitrators: Bill 48 provides that arbitrators must consider equitable rights and defences in addition to legal principles and gives express power to arbitrators to make cost awards where conduct has increased the costs;
- Enforcing Arbitral Awards from other Canadian Jurisdictions: Bill 48 provides that parties may apply to the Northwest Territories Supreme Court to recognize and enforce arbitral awards made in another Canadian jurisdiction.
Committee Consideration.
The committee noted that Bill 48 did not adopt all proposed wording of the Model Act. Considering that the purpose of the Model Act is to enable legislation in all jurisdictions to be alike, Members inquired with the Department of Justice, or "the department" on the reasons for the divergences.
After deliberating on multiple sections of Bill 48, the committee understands that the reasons leading to variation from the Model Act include NWT drafting preferences and circumstances and the adoption of several changes to the Model Act made by British Columbia when their legislature considered the Model Act.
And I will finally pass this over to the Member for Tu Nedhe-Wiilideh. Thank you.