Basic rules for arbitrators

The basic rules relating to the arbitration process in the Arbitration Act, 1991 are that the arbitrator must:

  • decide only the questions referred to arbitration in the arbitration agreement
  • be impartial (as between the parties) and disclose any reasons to cause a party to think the arbitrator may not be impartial
  • treat the parties equally and fairly and give each sufficient notice of all proceedings and an opportunity to be heard
  • conduct the proceeding and make the award exclusively under the law of Ontario or of another Canadian jurisdiction agreed to by the parties
  • make the award in writing and ensure all parties have a copy.

The basic rules relating to the arbitration agreement in the Family Law Act are these:

  • the parties must understand the nature and consequences of the agreement
  • the parties must make relevant financial disclosure to each other
  • the agreement must not be made before the dispute arose (except for 'secondary arbitrations' described elsewhere).

The basic rules relating to both the agreement and the process in the regulation under the Arbitration Act, 1991, Ontario Regulation 134/07, are these:

  • The agreement must contain provisions set out in the regulation, namely:
    • The arbitration will be conducted exclusively in accordance with the law of Ontario or of a specified other Canadian jurisdiction
    • The award may be appealed as set out in the agreement
    • The arbitrator is named
    • The parties certify they have received independent legal advice and attach a copy of the certificate of independent legal advice
    • The arbitrator certifies that the parties have been screened for domestic violence or power imbalances and that the arbitrator has seen and reviewed the screening report.
  • Beginning April 30, 2008, the arbitration agreement must also include a certificate saying that the arbitrator has had the appropriate training approved by the Attorney General. For lawyer arbitrators, this means training in domestic violence screening. For non-lawyer arbitrators, this means training in screening and in family law. See below for more details.
  • The arbitrator must keep records of the arbitration as specified in the regulation, including notes of evidence and arguments, and a copy of the signed agreement, certificate of independent legal advice and report of screening for domestic violence and power imbalances, as well as the award and the reasons
  • The arbitrator must prepare and submit to the Ministry of the Attorney General a report on each arbitration with the information set out in the regulation, in a form provided by the Ministry.