THE ADVOCATE 361
VOL. 78 PART 3 MAY 2020
NEW ARBITRATION ACT INTRODUCED
IN BRITISH COLUMBIA
By Kenneth Glasner, Q.C., FCIArb.*
The culture of dispute resolution has changed over the last few
decades, particularly as it relates to the business community.
The present challenge is to inform those parties who may not
already be well versed in arbitration, and their counsel, about
the advantages of arbitration over litigation and how the use of private decision
makers as an alternative to the public process—the courts—benefits
commercial parties.
In many areas of the business community, the paradigm shift in favour
of arbitration has already occurred, particularly since the Supreme Court of
Canada’s 2014 decision in Sattva Capital Corp. v. Creston Moly Corp.1 In a
unanimous decision of a seven-judge panel, the court restored the decision
of Leon Getz, Q.C., a senior lawyer with a depth of experience in corporate
and commercial law who had served as arbitrator. What Mr. Getz accomplished
in ten months (not an unusual time frame for a commercial arbitration)
took the courts well over 5 1⁄2 years.
Sattva illustrated significant attributes of arbitral culture. First, it was
clear that the parties had appointed someone with a knowledgeable background
to make a binding decision. Second, the parties had incorporated a
flexible process to arrive at a binding decision. Third, the parties had incorporated
one of the pillars of arbitration, though also reflected in this
province’s Supreme Court Civil Rules: striving to achieve a just, speedy and
economical determination of the proceedings on its merits.
B.C. has enacted a new Arbitration Act2 (the “new Act”) in line with and
perhaps exceeding similar legislation across Canada. To a great extent the
new Act mirrors the model legislation adopted by the Uniform Law Commission
of Canada (“ULCC”) in December 2016. The new Act is to come into
force by regulation, which has not yet been made.
In 1986, British Columbia had been a pioneer, being the first jurisdiction
to adopt the UNCITRAL Model Law on International Commercial Arbitra-
* The author gratefully acknowledges input from Jonathan Eades and Dan Urbas.