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Le diagramm» suivant illustre la m^thode : 1 2 3 1 2 3 4 5 6 ( I^ n V ^ '\ •1 d"^ THE B()ARI>S OF TRADE General Arbitrations Act (1894) AND RULES OF THE TORONTO CHAMBER OF ARBITRATION WITH N0TE8 AND SUGGESTIONS AS TO T Hi: CONDUCT OF A REFERENCE. BY W. H. BEATTY. SOLICITOR TO THK TORONTO BOARD OF TRADK, AND WALLACE NESBITT, OF OSfiOODE HALL, ESQUIRKS, BARRISTERS-AT-LAW. -K>*<-^ ©otrontot HUNTER, R08E & COMPANy. 1894 c ^ 64^ 264441 fcntered aooording to the Act of Parliii thousaiicl eig'ht hundred and nii the Department of Agriculture. r=is!!---"-^-":':^^Kr/:^:: " ) Table The I Appei Table of Cases CONTENTS, PAGE. ii-iii »e year one 'i K & Co., in PART I. TheBoardsof Trade General Arbitrations Act (1894) - 1-50 PART IT. Appendix A. — Rules and Forms B.— Time Table 51-73 75 TABLE OF CASES. Albi >n V. Pike Allinson v. General Council of Merlical EiUication au'l lie gistration , Attorney-General v. Southamptitn Anning v. Hartlet Balfour V. Malcolm Baring & Co. v. Doulton & Co Ball V. Cromptoa Corset Co Bos V. Helshanr Beck V. Jackson Beddington v. Deitchman Beddow v. Beddow Blanchard r. Sun & Fire Office Brook V. Delcomyn Carus-Wilson v. Greene Carlisle re Clegg v. Clegg Chadwiuk v Ball Conmee v. C. P. R Christopher v. Ho.xon Dawdy re Dawkins v, Antorbua Duke of Beaufort and Swansea Harbor Trustees re East & West India Dock Co. i: Krik & Kandell Essery v. Court Pride Farrar v. Cooper , Fox V. Toronto &, Nipissing Ry. Co Frankenburg v. Tlie Guarantee Co Groom V. Gore Gunn V. Hallett Hartley v. Harker Hopper re Jacobs V. Brett James v. James Jewell V. Christie Johnson v. Latham Jones V, Godson PAGE . 11 , 11 , 12 Jl 11 11 45 33 4.5 44 41 28 14 (i 40 11 10 44 (') .5 19 28 .5 41 44 11 17 29 12 23 11 28 19 19 20 VI TAHI-E OF CASES. PAGE JopHn V. Postlethwaite 40 Kemp V. Rose 10 Keighley & Co. and Bryant & Co., re \^ Kniglit and Taliernade Bldg. Society re ;^9 Lawrence v. Hodgsou 18 Lock V. Vulliamey 18 London & Blackwell Ry. Co. v. Cross 41 Mahnesbury Ry. Co. v. Budd 41 Mosely v. Simpson 28 McLean v. Evans 44 N. London Ry. Co. v. G. N. Ry. Co 41 Nottt^. Nott 21,22 Omichund v. Barber 34 Oram v Breary 11 Pappa V. Rose 13 Pescod r. Pescod 55 Phipps V. Ingram 14 Radford v. McDonald 30 Rees V. Waters . . 18 Rennie v. Utterson 29 Ross V. Boards 21 Stonebevver v. Farrar 17 Southampton Bridge Co. v. Soxithauipton Tiocal Board 12 Tandy t. Tandy 20 Talbot V. Poole 44 Tharsis Sulphur Co. r. lioftus 13 Thorburn v. Barnes 14 Turnock v. Sartoris 40 Tunno v. Bird 50 Vineberg v. Guardiai Kiie and Ijife Insurance Co 10 Wakefield v. Llanelly 18 Whiteby v. Roberts 28 Whitworth v. Hulse 19 Williams' z'. Squair ... 23 Wallis V. Hirsch 40 Workingmen's Mutual Society re 44 Wilson & Sons and Eastern Counties Navigation and Trans port Co. (Limited) re 12 Y oung V. Bulman 55 ERRATA. On paj,'o 11, line 4, for " l)iirH:lar," mul hnrfrlari/. On paj-e 11, line (5 from l)ottoui, for "decision," leud (lictmn. On pa<,'e 20, S. 2, for " Korni of," read Tokhi!/ itji, On pajfe 32, line 22, for "sulipiena," read mnninont. On paure 33, for " l$ass i) Helshani," read Box n. Hehham. On page 57, Rule 14, last line, after " Form M.", add or Fwm M. On page (12, Rule 22, after " Form M.' , add Fonn M.3. THE boards of trade General Arritratiows Act -^>+<-»- All /Vet enabling. lioards of Trade in Cities to ap- point general arbitrators for certain purposes. {Out. i^tatute, 57 Vict, Cap. 24). The object of the Legislature in the passing of this Act was to attain the three primary essentials of justice— cheapness, celerity and certainty. Perhaps It may be well, before taking up the different previ- sions in detail, to give a few of the special features of the Act somewhat at len^rth 1st. The majority of cases which will be brought for arbitrament may be finally disposed of in a couple of hours. There will be no lingering about courts day after day waiting for a hearing. The hour will be fixed beforehand and strictly ad- hered to. Accommodation will be provided for the hearing of several cases concurrently, and the panel of arbitrators will be sufficiently large to do away with the necessity of waiting the convenience of judges, or the termination of protracted cases. 2 liOARDS OF TRADE Forensic displays will not Ik; oiicouutged, nor will tho practice of cross-exam itiation he peiinitted to he ahused, the conduct of th(^ Chandler heing under the control of men of business " anxious to get at facts, and arrive at a common sense conclusion as speedily as may he, with due regard to efficiency." The hearing of every case is to he continued de die i7i dient. 2nd. With a saving of time, and a simplilicati(m of procedure, thei'e will necessai'ily he a vast reduction in expense, and apart from legal assistance (which is at the option of either of the parties), the whole fees payable to the Chamber, including arbitrator's fees, will not probably exceed $20.00 for each sitting, whatever may be the amount at issue. 3rd. Disputants may conduct their own cases, or be represented by a legal advocate, barrister, >olicitor, or by other duly authorized agent. The fees for wit- nesses will be the same as in an action in a High Court of Justice. 4th. The panel of arbitrators will include represen- tatives of all trades and allied interests, will be nominated by the Council of the Board, and balloted for by the Corporation. The entire proceedings of the Chamber will be con- sidered strictly private and confidential, the parties and their agents alone being present, and no reports being issued. 5th. The submission to arbitration once made (whether in the origin,'U contract between the parties, or by a special agreement ad hoc), it cannot be revoked, nor is it aflfected by the death of either of the par- OENKRAL AUBTTIJATIOXS ACT (1804). 3 tios ; and tlio ;ii-|,it,rators may proceed in ti.e absence of any party wli,., after reasonahlo n.,tic(., shall necrject or refuse to attend on a jefei-ence. _ Witnesses may be exann'ned on oat),, and tl.e par- ties must produce all documents in tlieii- possession or control which the arbitrators may call for. The personal attendance of all parti(>s may be dis- pensed with if they prefer to jointly state a case, on which they agree to accept the decision of the arbi- trator. The rules further provide f(,.- an impartial legal assesso- to whom any question of construction of documents, or admissibility or relcNancy of evidence, or other legal question, may bo i-ef(^rred by the par- ties or arbitrators f„r th(.ir guidance, thus safe- guarding the parties l)y the advantage of practically an inexpensive judicial deternu'nation of matters, and avoiding the necessity of procuring legal advocacy to guard against departure from legal and judicial rules. ^ The advantages of this are so obvious in inexpen- sively settling disputes, no matter how laj-gc^ the sum involved, as to require no connnent. It may be proper to say, hoAvever, that in England it has been found productive of the greatest benelits, ensuring as it does the disposition of cases as satisfactorily as if tried be- fore one of the courts without the iiecessity of the enormous expense of litigants having to retain solici- tors and counsel to advocate their views. The Chamber gives trained experts or practical business men, with power to call in trained impartial legal assistance where necessary. The award of the arbitrators may be enforced in 4 BOARDS OF TRADE the same mfiiiner as a judgment or order of tin; High Court of Justice to the same eflect, so that there are at least five diiferent advantages which the Cliamber offei's over the ordinary methods and remedies : (a) A convenient place for hearing, with all tlie machinery of a court. {b) Carefully adjusted rules of procedure, which will act as a guide to disputants. (c) A selected, efficiently organized panel of arbitrators. (d) A regulated moderate scale of fees. (e) The assistance of a special " Legal Assessor " to sit with the arljitrator or arbitrators, and advise and assist him or them in the arbi- tration. This Act in no way interferes with the special Act incorporating the Board of Trade, and the rules made thereunder. The distinction between an arbitration held under that Act and the rules established there- under, and an arbitration under this Act, is a broad one. In the case of arbitrations under the Board of Trade rules, the By-laws provide for the members being bound to abide by the arbitrament, and in case of refusal to obey the award, machinery is provided for complaint to be made to the Secretary of the Board, who then brings the matter before the Council, and unless the recalcitrant member complies with the order of the Council, provision is made for his expul- sion from all the privileges of the Board and forfeiture of hi3 seat. This penalty is, of course, entirely in- applicable to ordinary arbitration between parties, and by Section 33 of this Act, it is provided that it GENERAL ARBITRATIONS ACT (1894). 5 is in no way intended to interfere witli the provisions of the Act, relating to the Toronto Board of Trade, or the arbitration between members thereof held under such Acts and rules. The class of cases appli- cable to arbitrations held under the Board of Trade rules are those relating to Clubs and Benefit Societies, in which it has been held that the members submit themselves to any disqualifying provisions which may exist, always providing that they are not contrary to the rules of natural justice. See J )awkins v. Antro- bus, L.K. 17 Ch. D. 615; Essery v. Court Pride, 2 O.R. 596. 6 BOARDS OF TRADE WHEREAS th(3 Boiivd of Trade of the City of ^^ Toronto has been rnahled to pro- cure tlie settlement of* differenees be- ^''''^'"''^^'• twcen the mend )ers of tlieir corporation by arbi- trati(ni with unusual economy and despatch ; and whereas the said Board ol" Trade has re- solved that in the opinion of the P>oard the suc- cess attendant on their system of a,i-})itration justifies its extension to persons or corporations other than mendjers of th(,' Board ; and whereas it is desira))le to o-ive effect to the experience of the said Board, arid to extend such system afore- said and its aarty to use his own judgment, and by the ex- ercise of his knowledge and his senses to come to a conclusion, and the rules relating to arbitrations do not apply. See Tn. re Dawdy, L.R., 15 Q.B.]>. 42G ; In re Carus-Wilson v. Greene, L.R., 18 Q.B.D. 7 (1887). GENERAL ARBITRATIONS ACT (1894). 7 Anotlier Inroad distinction between an arbitration and valuation is, in case of parties agreeing that a certain tiling is to be decided by a valuator, then in case sue' I person named i-efuses to act or dies, the parties are powerless ; whereas, in the case of arbitra- tion, the rule (1 7a) provides that the registrar may nominate an ar})iti-ator ; in other words, in the case of valuation, it is impossi];le for a party to obtain spociric pei-formance of a contract without first ob- taining valuation ; the Court cannot put itself in the place of a valuator and arrive at a decision. Pai'ties to Arbitration. Any number of persons may join in a submission, and provided the arbitrator does not go outside the sub- ject matter of the submission, he may decide their joint and several rights and liabilities, including ques- tions of contribution. Corporations may refer their disputes to arbitration by submission under seal. Partners may refer their partnership disputes or their disputes with third parties to arbitration. But all the partners must join, unless otherwise provided iov by their deed or agree- ment or articles of partnership. An agent has generally no authority to bind his principal by a submission, but if he has authority to couipound debts or settle claims, he may refer such matters to arbitration. An infant is not bound by his submission, unless it be made with the sanction and approval of the Court as a proceeding beneficial to him. A lunatic would not be bound ; Ijug his committee may, by the permission of the Court, bind his estate by a submission. « BOARDS OF TRADE Matters to bt. referred. These should bo stated with sufficient clearness, othei-wise inconvenient (juestions may arise as to what is and what is not within the jurisdiction of the arbitrators. A reference of " all matters of difference " will give the arbitrators jurisdiction over all disputes which have arisen between tli(» parties down to the date of the submission, but Jiot over matters contingent or which arise after the dut(! of subnn'ssion. Jf the paities wish to submit contingent or future differ- ences they may do so, but this must be stated in the submission. If disputes between partners are refen-ed, and it is desired to give the arlntrators power to decide wheth- er or not the partnership should be dissolved, and in case of a diss(>lution to take the accounts of the partnership and decide the respective rights of the partners, this should be expressly stated. The same particularity should be observed when one of the matters in dispute is the consti-uction of the partner- ship deed. If it is intended by one of the parties to rai ^0 an issue of f iviud, so that tlio reputation of bcjth or either of the parties may depend on the result of the arbitration, it will not be desirable to rely only on the form " all matters in difference," but to st.ite the issue in such a manner that it shall be clear, that at the tiinc^ of signing the submission the parties knew that the issue of fi-aud would be raised. These suf'- gestions are made because there is a two-fold advan- tage to the pai-ties to a submission in having the sub- ject matter of the disputes between them clearly de- (JKNERATi ARBITIIATIONS ACT (1894). 9 fined. The main object of an arbitration is to avoid any proceeding at law, and to render the award of the ar])itrat()r final One common means for an arbitration to fail to be final and to come before the courts eventually, is for the arl)itrator to give an award about mattei's which are not expressly includetl in the written submission, which is the sole founda- tion of his authoi'ity. Even in cases where both parties iiave been desirous of an arbitration at th(? outset, and indeed up to the publication of the award, the losing party finds himself dissatisfied, and tiien searches for a means to prevent the award being act- ed upon, a search wliicli rarely indeed benefits the seeker and cannot possibly personally ))enefit the successful party to the award. But there is also a second advantage in a clear definiti(»n of the subjects which are to be included in the submission. There have been many cases where one party to a submission has changed his mind before the hearing, and has then declined to proceed with the arbitration, and has instituted an action. It nmst, therefore, be here pointed out that when a party has commenced an action it is not a defence imr se for the defendant to say that the plaintiff has already agreedto submit to arbitration the dispute upon which he is now pro- ceeding. ]V]i() may Act as Arbitrator. In arbitrations between individuals the general law which is applical)le is to be found in li.S.O., Cap. 53, as amended by 52 Vic, Cap. 13, passed in 1889, and shoi'tly, the general law may l)e stated to be that no party can lie chosen as an ai'bitratoi' who has any 10 iU)AI{l).S OV TUADK p(3cuni;iry interest, no matter how small, in the result of the award ; nor can a party be chosen, who, from hostility or bias, is likely to to be inlluenced in his decision. A few illustrations may l)e given as to what has been de<'id('(l. ( 1 ) After thfi amount of a loss by lire had been ascer- tained l)y arbitration, th<; assured discovered that th(! company's arbitrator was a su})-agent of the comj.any's district agent. He then refused to abide by the result of the award and was upheld by the court in his refusal. Vineberg v. Guardian Fii-eand Life Assurance Company, 19 Ont. A. U. 293. (2) Where an arbitrator had, during the progress of the arbiti-ation, been approached by one of the parties with reference to accepting a position as solicitor to such party, and was after the award, appointed to that office, the award was set aside. Conmee v. Canadian Pacific Railway Company, 16 Ont. 11. G39. (3) When a builder bound himself to abide by the decision of an architect as to the amount to be paid for his woi-k, not knowing that the architect had given an assurance that the cost of the work would not exceed a certain sum, although he had refused to guarantee that it would not do so, it was held that the architect was under such a bias as deprived his decision of binding foi-ce. Kemp v. Hose, 1 GifF. (4) Where a dispute on some matter outside the reference had arisen lietween the arbitiator and one of the parties, it was held that the arbitrator could GKNKllAL AUlilTRATlONS ACT (LS94). I I not properly act. In the matter of a contract between l^ai'in<,' ik Co. ami Doulton it Co., 8 Times L.K. 701(1892). (")) The manager of a hur^^lar j^uaivintee company is not a lit person to adjust the loss sulf'ered by a subscriber. In th(; matter of an arbiti-ation be- tween Krankenburg and The (Juarantee Company, 10 Times L H. .Sll.'i (ISDl). (G) See also Alliiison vs. (Jeneral Council of Medical Education and llegistration ( 189-1), 1 Q. B. 750. Ohjactioii to arblli'dfor, Imir taken : Under the special Act in this case, if the award has been made it is doubtful if the Court could interfere unless for actual fraud ; but relief could be had at any time dui'ing the progress of an arbitration by an injunction preventing the arbitrator acting, see under this head, as illustrating the proposition that, although the Court cannot give leave to revoke the submission, it would proljably hold that its power to interfere by injunction was not taken away : Oram V. Brean^y, 2 Ex. D. 31G (1877), where Pollock, B., says: " Tlu; jurisdiction of a Superior Courtis not to be ousted unless by expi'(!ss language in, oi' obvi(tus inference from, some Act of Parliament."' See also Chadwick v. liall, L. K., M Q. B D. 855 (1885), where, although the decisioji in Oram v. Brearey was overruled, the above decision was cited with approval by Lindley L. J ., at }) 858. See also a statement to the same ell'ect by Jessel, M. R., in Jacobs V. Brett, L. H, 20 Eq Cas. p. 1, at p. 6, (1875); and Tindal, C. J., in Albon v. Pyke (1842), 4 M. tt C 424 ; Lord Campbell in Balfoui' v. Malcolm (1842), 8 CI. it V. 485, at p. 500. 12 BOARDS OF TIIADK In 1777 it was held that a Statute which enacted that " all offences shall be deterniincd " in a certain inferior Court did not take tVom the Court of Kind's Bench the power of removin*,' a matter in a proper case : Hartley v. ITooker, 2 Cowj) 52.'i ; and, in 18 19, that the C(jurt is iidt ousted of its preventive jurisdiction to stop \)y injunction the niisa})})lication of poor rates, hy the power given to the poor law connnissioiKU's by Statute to deteiniine the propriety of all such expenditure : Attorney-Ceneial v. South- ampton, 17 Sim. See also: Southampton Bridge Co v Southam})ton Local Board (1858), 8 E. and B. 804: Maxw(ill on Statutes (1883), pp. 152 et see}.; ITardcastle on Statutes il802), pp. 1 10, et seq. But for the special pi'ovisions of s. 23 of the Act in (juestion, there would be three courses open : (ft) Motion to set aside awards. (h) Motion to revoke submissicMi. (c) Motion for injunction to pn^vent arlutrator acting. In view of ss. 7 and 23, the latter course seems to be the only course open where formerly the usual course was to move to revoke. This seems the moi-o likely, as the Court will, no doubt, l)e astute in the cjuse of an arbitriator who is biased, etc., to prevent his acting; and Rule 17 " A " may be invoked as applicable, and the Registrar directed to appoint a new arliitrator upon the declaration of the Court that the arbitrator attached is " incapable of acting." See : In re an ai'l)itration between \Vilsf)n Sz Sons and the Eastern Counties Navigation and Transport Company (Limited^, 8 Times L. R. 2G 1 (1892). fJENKRAL AUIMTKATIONS ACT (1894). 13 Air/ions Aijuiiisl jirlnlrdtur. No action Ccaii ho brouglit aj^aiiist the arhilrator for want of caio and skill in the; matter of tiie reference, provided he has acted honestly : See Pappa V. Rose, L. It. 7 C. Ro^f) ; Tharsis Sulphur Co. v. Loftus, L. li. H C. P. See also llule IS, post. p. Proceed'uKjs liffov. Arhltnttion. (1) Presetice of Counsel . Jiiih's of Evideuce. In the case of an arhitration, ordinarily, when it is entered upon, both parties have the right to he repre- sented by Counsel ; see ^>os^ sec. 19, and to call wit nesses, ])ut arl)itrators are not bound by the ordinary rules of legal evidence. See in re Keighley tk Co., and Bryant k Co., 9 Times L. R. 107, at p. 108. As to form of oath, ^ee post notes under Sec 15 of the Act. It is not within the scope of the present work to descrilje fully the rights and limitations of the parties in examining, cross-examining and re-examining wit" nesses ; but it had perhaps better l)e stated that a party examining a witness in chief can only ol)tain from him by questions, evidence of matters strictly material to the issue being heard. Nor can a party examining his own witness ask leading questions, that is, ask questions in such a form as to put the answer into the witness's mouth. In cross-examination a party may ask questions of an opponent's witness, going to his credit, that is to say, which may show that the witness is not worthy of belief, and this, of course, can be shewn from matters quite extraneous to the question at issue. 14 liOAUns OK TRAOK Tlni arl)il.ivii.)r of aihiiraiors liuvf power, .'iiid it is their duty, to cli(M;k any al)use of (Jic ri<,'iits of cross- (^xaiiiiiiatioii In re-cxamiiiatioii tlic witiKvss can only ))«' asi<('(i as to matters " aiisin^' out <»f tlio iiross examination " Any fresh material whicii lias been for<^otten, or was not considei'ed mateiial when tlu^ witness was first examined, should Ik^ put throui<( all Ik; has to say, althimgh he may ])e of o])inion that there is nothing the party can bring forwaj'd which will altei' his opinion. Phipps V Ingram, 3 Dow). GG9 (181^5); Thorbui'ii v, llarnes, L. K. 2 P. '.^M (1867) This, of course, does not apply when a party refuses or neglects to attend the liejiring without reasonable cause, Ijecause in that case the party has not given the arbitrator an opportunity of hearing him Neither does it apply to a case of rejection or evidence which the arbitrator or umpire believes to ))e legally inadmissible. An arbitrator or umpire should Jiot hear any evi- dence in favor of one side privately, l)ecause each party has a right to know what is the evidence against him, so that he may refute it i* he can. (See Earle J. in re Brook & Delcomyn 16 C. B. N S. 403. 1864). (2) Order of Business. The arbitrator has general control over the order of business, but it is well for him to allow the parties to adopt their own order if they can agree upon it. OKNEUAI, ARHFTUATroXS ACT (l(S94). 15 Tn most cases t.licro is (»no party who makes a claim and another wlio repudiates it, ami in that case it is generally the l>arty claiming who should hcgin (but see below). Where there nvv claims and cross claims to ))e heard, it will be generally convenient for that party to begin whose claim arises first in order of date, but this is a matter about which no genei'al ruh; can be profitably laid down. The conmion sense; of the parties and the arbitrators will generally be sufficient to guide them as to which party should be heard first. In sonie cases, the facts necessary (/)rit)ia/hrie) to es- tablish the claim ar(; admitted by the dt;fendant, but he, in defence, sets up a matter which it is his duty to prove if he wishes to succeed in defeating the claim, and in such a case, the defendant who sets up the dis- puted matter should begin. (See Case iv. l)elow.) The easiest method of shewing what is generally the most convenient order to pursue is to give a series of simple examples. Case I. — (Claim and Denial.) A. claims $50 against B. for breach of contract. B. denies the breach. (1) — A. opens his case upon the contract and states what is the breach complained of. (2) — A. places all his evidence before the arbitrators. The witnesses are cross-examined by B. and re-examined by A. (3) — B. states what is his defence. (4) — B. places all his evidence before the arbitrators, etc., as in 2. (5) — B. sums up the whole case. 16 I'.OAUDS OF TRADE (6) — A. replies upon the whole case. If B. does not intend to give evidence or call wit- nesses, but relies wholly on the weakness of A.'s case, then substitute. (3)— A sums up on the case. (4) — B. sums up on the case. Casp: II. — (Claim and cross-claim where the subject matters are mixed.) A. claims $100 against B. for goods sold. B. dis- putes the amount and cross-claims for a breach of warranty. (1) — A states what is his case as to goods sold. (2) — A. places his evidence before the arbitrators as to goods sold. B. cross-examines the witnesses as to the amount and the breach of warranty. A. re-examines. (3) — B. states his view as to the whole dispute. (4) — B. produces evidence as to the whole dispute. A. cross-examines. B. re-examines witnesses. (•") A. produces additional evidence (if any) as to breach of warranty. (6) — B. sums up on whole case. (7) — A. sums up on whole case. In this case A. is not called on to state his case or produce his evidence rebutting the breach of warranty until B. has closed his case, because he may not know at the outset what is the case set up against him by B as to breach of warranty. Case III.— (Claim and cross-claim distinct.) A. claims $100 against B. for goods sold. B. claims $50 ag'dnst A. for work done under a contract. GENERAL AUiUTKATIONS ACT (1894). 17 III this case, each claim should be heard separately, as in Case I. Case IV. — (When burden uf proof is on defendant.) A. claims $100 against B. for breach of contract by refusing to accept goods. B. admits the contract and the tender of the goods, ])ut says he refused to accept them because they were inferi(jr to sample. In this case A. is relieved by B.'s admission from having to prove the contract and tender. B. there- fore, begins by stating his case as to the goods being inferior to sample, and the order will be the same as in Case I., substituting B. for A. and A. for B. If any case of difficulty arises, it rests entirely with the arbitrator or arlntrators to decide in what order the parties are to be heard, and the arbitrator or arbitrators have complete control over the conduct of the trial. (3; Arbitrator's Xotes. In Groom vs. Gore (25 L.J. Ex. 267(1856), the Court said, "The taking of notes upon an arbitration may be necessary, and the proper duty of the arbitra- tor is to take notes so far as he deems it necessary." The Award. ( 1 ) — General Eeqitisites. (a) The award must be certain. There must be no question as to what are tlie rights and duties of the parties under the award. In Stone- hewer vs. Farrer, 14 L.J., Q.B., 122 (1845,) the arbi- trator directed tliat the defendant should take all necessary precautions to prevent certain water being untit for the use of the plaintiff. This was held to 1 1 18 BOARDS OF TRAPT: be a bad award, because an "award should be so specitic, that a party can have no diiticulty in acting upon it," In Lawrence vs. Hodgson 1 Y. it J. IG (182G), nn award that A. or B, do a certain thing, without saying wliich should do it, was held to be bad. In the same connection, it may be mentioned, that an award should distinctly shew what the parties are to do, not what the a^'bitrator recommends as a reasonable compromise. In Lock vs. Vulliaincy, N. Sl M. 33^1 (1833), an award was held invalid where the arbiti'ator said : "To meet the circumstances of the case in a liberal manner, I propose that Mr. V. should pay Mr. L. £10." (/>) The award nmst be final. The award must be a iinal settlement of the matters referred. In AVakelield vs. Llanelly etc., Co. 12 L.T. 509 (b'^Cr)), Lord Justice Turner said, "It is the duty of arbitrators fully and finally to decide all the questions which by the agreement of reference are submitted to their determination, and an award which disposes of some of those questions and leaves others of them undecided, or leaves it in doubt as to any of the (jucstions, whctlKU" they were meant to be, and have been decided, or not been decided, cannot be maintained." If one of the matters in diffei'ence has been dropped during the arbitiation or has not been brought before the arbitrators, the award cannot be impeached be- cause such matters aie not mentioned therein. Rees vs. Wat(M-s IC) M & W. 203 (1817). WhiMi th(; award professes to be made " of all the matters referred to," there is a presumption that all GENERAL AIUUTKATIONS ACT (189-1). 19 the matters referred liave been disposed of, and that the award is an adjudication that there is no other claim maintainable beyond what is expressly stated Jewell vs. Christie 3G L. J., C. P. 168 (1867), and it has been held that where an arbitrator, to whom has been submitted a claim and cross claim, awards a gross sum of money to one party, there is a presumption that he has disposed of both claim and cross claim, although these are not distinguished in the award. Re Duke of Beaufort and Swansea Harbor Trustees, 29 L J., C. P. 24 1 (1860). If the submission requires that the arbitrator shall find separately as to several sums claimed, he must do so, but if the submission does not so require, he may award a lump sum. Whitworth vs. Hulse, L. R. I Ex. 251 (1866-. It is the duty of an arbitrator to himself determine by his award the whole matter referred ; he should not leave anything to be decided afterwards by the judgment of himself or another. See Johnson vs. Latham 19 L. J., Q. B. 329 (1850). " .^.n arbitrator cannot in his award, reserve either to himself or dele- gate to another the power of performing in future any act of a judicial nature respecting the matters submitted (Russell on Arbitration, 7th edition, p. 281.) He may, however, direct matters of a purely ministerial character to be done, and if called on to value a property, he may determine the rate to be charged per acre, leaving the acreage to be ascertained by measurement, because measurement is but a minis- terial act. The lixing of a value on the otlier hand is not a ministei'ial but a judicial act, and should be settled by the arbitrator himself, not left to a third party {lb. pp. 283, 284.) 20 IJOAllDS OF TRADE As an award cannot of itself uperato to convey land, it may often ])e necesnary for an arbitrator to direct a conveyance to be made, and if he does so, he should dedans who is to bear the expense He should not leave material question as to covena nts or releases to the decision of the draughtsman, nor may he reserve to himself a future power to decide who shall di-aw the deed. See Tandy vs. Tandy, 9 Dowl., 1044 (1841). (2)— Form of Award. When the award is made in ordinary practice, the rule is for the ai-bitrator to notify both the parties when the award is ready for delivery and the amount of his fees, and a claim for more fees than the arbi- trators are entitled by law to tax rentiers them liable under the Statute co a penalty for three times the amount claimed by them. Il.S.O., Cap. 5ii, Sec. 29. A somewhat singular case arose recently where the parties innocently, in giving notice, made demand foi' larger fees than the Statute allowed, and were sued for the penalties, some $1,500, l}ut so far have escaped on the ground that tin; award being lodged at a bank, with a notice that the same was to be taken up there, a cheque which was given in pay- ment of the award, was not money, .and there- fore the arl)itrators having discovered their mistake and notified the withdrawal of the demand were held not liable The case, however is still in appeal Jones vs. Godson, C.P.Div.Ct. Out., 23rd June, 1894. (3) Coafs. Costs Pdvi of the Award. It should be remeudjered that costs are part of the award. These nmst be awarded separately and not GENERAL AllAlTRATIONS ACT (1894). 21 as a part of tlie whole sum of money awarded, other- wise it will not Ix^ clem wliether or not tlie arlutrator has exceeded Ids jurisdiction tis to costs. An ar))i- trator may award costs generally, or he may award n. lump sum for costs. He should st^itie to wliom and by whom the costs are to be paid, and if he intends that each party shall pay liis own casts he shoukl say so. (8ee Post, Sec 28 and notes thereunder.) (4) Forms of Award, The aw^ard must be in writing signed by tht> arbi- trator or arbitrators. \^ hen there are ihree »a)bitrators an award by two of them is sufiicieiit, and a thiixl arbitrator who dissents from the awaitl will simply omit to sign his name. If more than one arbitrator signs all slujuld sign at tlie sjime time and place. See Anning v. Hartlet, 27 L.J. Ex. H5 (ISo.S). Nott v. Nott, 5 O. R. 280. It is usual for <'in award to \ni attesttvl by one wit- ness, but this is not essential. It is not essential that there should Ije any prelim- inary recitals of fact, but certain recitals are advisable. ►So much of the submission should \ye set forth as will shew what are the matters leferretl. Where applic- able, the following recitals are recommended : — The appointment of a new arbitrator ; the appointment of a third arbitrator who has entered on the rcfeience ; the enlargements of time. It is also advisable to state that the award has been made " concerning the mat- ters referred." In stating the tei-ms of the award, teclmical phrase- ology need not be employed, but the intention of the arbitrator must l)e clearly statefU 22 BOARDS OF TRADE If, by the terms of the submission, the arbitrator iP required to find as to certain facts, he must do so ; otherwise it is not necessary to state tlie facts on which the arbitrator has based his decision. Neither is an arbitrator required to state his reasons for the award. If the question is what money (if any) is due on a contract as debt or damages, he must state the exact sum awarded, who is to pay it, and to whom it is to be paid, and within what time, or forthwith. If he awards lands or chattels, he must describe them so pecitically that they can be readilyd indentified. If he directs a certain thing to be done, he should say how it is to be done and within what time. As to directing a conveyance of land, see R. S. O., c. 5^ s. 45. (5) Signing the Award. In ordinary cases the Jtrbitrators must all be pres- ent when the award is signed, and this rule must be most stringently observed. See Nott v. Nott, 5 Ont., Rep. 283 (1884). In this case three arbitrators, at the close of the evidence, agreed on their finding, and a minute there- of was made in writing by one of them but not signed, and it was understood that nothing further was to be done but to have a formal award drawn up and executed. Next day the award was drawu up and executed by two of the arbitrators in the presence of each other, but in the absence of the third arbitrator, who a couple of days afterwards executed it in the presence of one of the other arbitrators. In an action on the award it was held that the award should have been executed by the three arbitrators together, and that it was invalid. (JKNEUAI. A|{IUTIlATIONS ACT (1894). 2'.\ But in a case wliei-e two ai'l)itrat()r.s having agn^ed on a referee did not l)otli siij^n tlu; apiiointinent at the same time, it was held that tlie signing of tlm appoint- ment, not being a judicial act, had l)een validly jief- fonned, re Hopper, L.ll. 2 Q.B. Sf)? (ISGT). And where an informal memorandum of the award was signed by all the arbitrators at a meeting, but the arbitrators were not together when signing the formal award, the award was good. AN'iiiiams vs. Squair, 10 U.C.Q.B. 24 (1852). Within the limits of a short sketch such as this, it is impossible to indicate the law on all the pha.;es that may arise, l)ut these are the rules generally go\(H'ning arbitrations. Under the vai'ious sections of the Act will be noted such observations as either amplify these rules or derogate from the general rule by reason of the special Statutory provisions. 2. It sludl 1)0 tlio duty of tlie Council of the Board of Trade of the City of Toronto, hereinafter called nlie Board," from ^onmti"' time to time to determine the nnnd)er i5«iiir<>of of persons wln"ch, in the opinion of the de'termiiio council, shall be sufficient to form a Arhltnuois. Chamber of Arbitration, from anunio- whom Boards of Arbitration may be selected to hear and decide controversies, disputes or misun- derstandino's which nuiy be voluntarily submit- ted to them for arbitration. it by id. It would seem under this Section that the Council of the Board of Trade are compelled to detei'mine simply the number of persons, and, that these persons when elected as provided for in Section 3 are to be 24 nOAUDS OF TRADE (li\i(le(l into l>(>ju'(l.s oi" Arl»i( ration accoi'cliiiii to tlii^ spocial (jualiliouiioiis of the persons compjisijiLi; tlic B BOAHDS OF TIIADK Jit sucli tlmo is ('ii^nfj<'oard of Trade, and compliances with Uy-law No. I 'J would seem to be Mecc;ssary, and an election held in <'ompli- ance with that by-law would seem to be sullicient. It is suggested that in the notice calling a sp(!cial meeting the names of all parties who have consented in writing to act as ar})itratoi's sliould be set out, and that the meeting be calhsd for tlu; ])urpose of electing the num- ber which has previously been sj)ecitied })y the Council in a Resolution, as sufficient to form a Chambei- of Arbitration. Sub-Section 3 should l)e carefully followed, and in the previous proce'eding of the Council it should be stated whetluM" j)ublication in the Ontario Gazette owXy should be sufficient, or whetlier publication should take place in any other papers, naming them, and if not intended to be published in any othei" papers it should be so stated. 4. The Board of Trair(! of tlicir ap[)()intnicnts : ^dvc; notice of hearin<^ to parties; issue suMinions for attendanc<^ of witnesses and pi'oduction of «locunients: kecsp a ivo-ister of suhniissions, a I'e^ister of awards and reconcilia- tion, and sucli other hooks and inenioi'ane held l)efoi'e one arhitrator, or two or ,, , , , . - Number. three arbitrators, accordin arlntralor had Ihmmi <;iiilty of niisroiidiK't-, or for soiiie rousoii was unfit to liavr the conduct of tli(M"efere not aside and conclusive upon the parties tliereto, and be a final settlement of the matter in dif- ference. This section is very important and is a coini)lete re- volution of tlie ordinary practice. What would be considered as fraud, would apj)ar(Mitly be some per- sonal misconduct in the ai-l)itration, or a collusion be- tween the arbitrator and one of the; parties, or a corrupt bargain of any kind. It cannot be too strongly impressed upon arbitrators that they should not listen to suggestions from either side or give effect to anything that is not properly befot e them in evid- ence. Under the latter part of the section, which makes the award a final settlement of the matter in difference, great care should be taken in setting out clearly what is the matter which is agreed to be refer- red, and anything which was clearly contemplated by the parties when the agreement to refer was made, will be held to fall within this finality. See Turnock vs. Sartoris, 43 Ch.D. 150 (1890); Joplin vs. Postle- thwaite, 61, L.T. 629 (1890) ; Jie Carlisle, Clegg vs. Clegg, 44 CD. 200 (1890); Wallis vs. Hirsch, 26 L.J. C.P. 72 (1856). And as subsidiary questions not fully contemplated by the parties, arise upon the hearing of an arbitration, it may be advisable to add in the written submission after the words, " All mat- ters in difference between them in relation to the pre- mises," etc., "or all matters in dispute in reference to," and the words, " Or any further matters of difference GENERAL AHIUTItATIONS ACT (1804). 41 26 s not the add mat- B pre- e to," ronce between the parties which may arise out of the above matters, during the hearing of this reference," or words to this effect. A form of reference containing such words will be found post, p. — , being "M2" of the forms given. If it is intend(;d to refer any question relating to the title to land or any pure question of law, it should be made sutficiently clear that these are intended to be referred, and if it is desired to give a power to de- cide as to an indemnity to be given by one party to another, against contingent claims, this should be stated. See Ross vs. Boards, 8 A. & E. 290 (1838). I'nju7ictions. The High Court has a power to restrain by in- junction the proceedings in an arbitration where the arbitrator is, for any special reason, unfit or incompetent to act. Such grounds of incompetence would be : Personal interest ; that he has been con- victed of perjury or fraud ; oi-, when in the absence of a conviction, he would be obviously unfit for the exercise of judicial functions. See Jessel M.R. in Beddow vs. Beddow, 9 Ch.I>. 89 (1878), and Malmes- bury Railway Co. vs. Budd 2 Ch.D. 113 (1876). It is, however, clear that the Court will not interfere by injunction merely because an arbitrator if? exceed- ing his jurisdiction, or })ecause the proceedings are futile and oppressive. N. London Ry. Co vs. G. N. Ry. Co, 11 QB.D. 30 (1883), and London and Blackwall Ry Co. vs Cross, 31 Ch.D. 354 (1886) In the later case of Farrar vs. Cooper, 44 Ch.D. 323 (1890^, there is a dictum of Keke witch, J., to the effect that there may be cases in which the Court will 42 TiOAItns OF TRADE interfere by injnncfcion, on the ground tlwit injustice or injury would result to the party conipl;iining. 24. Any motion to sot aside the Time for mo- award for fraud niuist 1)0 made within SeTor^ one month after tlie discovery of such f'''^"''- fraud. 2«5. A connnission to take tlie testimony of any person without the Province, or of comnii^sions any aged or infirm person resident to take evi- within the Province, or of a persor who is about to withdraw therefrom, may be allowed by the arbitrator or arbitrators and may issue in the same manner and with the same eii'ect as in an action brought in the High Court of Justice. The practice in this is regulated by the Judicature Act, and all that would seem to be necessary to found the application would be the production of the ruling of the arbitrator, shewing that a matter was proceed- ing before him under this Act, and that in the opinion of the arbitrator or arbitrators a commission was necessary, when an order would no doubt be at once granted by the Master in Chambers, and upon the return of the commission, the evidence would be re- ceivable as in ordinary cases in the High Court of Justice. 96. In any case not provided for by this Act, the law and practice relating to volun- Application tarv submissions to arbitration shall be of certain •^ . , , provisions. applicable. This section is a most important one, as where the Act does not specially provide, the parties are not left of the :t of Act, (JENEUAL AinUTllATlONS ACT (1894). 43 without remedy, but may invoke the provisions of the Arl)itriition Act. An instance of wliere the two mi<^ht chish would be the combined effect of sections 12 and 10 before adverted to. ^7. Five days' clear notice at least of the time fixed for the hearing of any case , . shall be oiven by tht^ registrar to all htamiif. parties to the submission, unless all parties otherwise agree. *4H. The costs of the reference and award shall be in the discretion of the arbitrator or . arbitrators, who shall have power to cretionof direct to and by whom and in what "••'''*''^^°''- manner and within what time the same shall be paid. No fees or costs shall be payable except witness' fees, arbitrators' fees, registrar's fees, and office fees. (2) A witness shall be entitled to the same fees as in an action in the High Court of Justice. The schedule of fees under this would be as fol- lows : — To ordinary witnesses residing within three miles of the place where the arbitration is being held, per diem $1 00 To ordinary witnesses residing more than three miles from such place, per diem -fl 25 Barristers and solicitors, physicians and surgeons other than parti(;s to the reference, when call- ed upon to gi^•o evidence in consequence of any professional services rendered by them, or to give professi()nal opinions, per diem $4 00 44 BOARDS OF TRADE Engineers and architects, not parties to the re- ference, when called upon to give evidence of professional service rendered \>y them, or to give evidence depending upon their skill or judgment per diem $4 00 An auctioneer was held entitled to professional fees in Re Workingmen's Mutual Society, 21 Ch. D. 831. Surveyors (under the Surveyors' Act, 11. S. O., Cap. 152, sec. 25 (5) ) per diem . . |5 00 Witnesses residing more than three miles from the place where the arbitration is held are entitled to their travelling expenses, reasonably and actually paid, but in no case exceeding 20 cents per mile one way. The costs of witnesses called to prove irrelevant matters should not be allowed : —Christopher vs. N(»xon, 10 P. K., 149. If a witness is s ibpumaod but not called, the arbi- trator *nay enquire into the practicability and neces- sity of subpo'naing him : McLean vs. Evans, .3 P.R. 154. The expenses of such witnesses were not allow- ed in a case where the evidence expected from them was apparently of.no value, and they were summoned from abundance of caution : — Beddington vs. Oeich- mann, 80 L. T Jour. 226. When the plaintiff was a necessary and material witness in his own behalf, and came from England to give evidence, liis travellihg exp(ms(«s were allowed : Fox vs Toronto and Ni{)issing Railway Co., 7 P. 11. 157; Talbot vs. Poole, 15 P. H. 274 (181)3). ..,7 ti74 (;ENEKAL AHBITIIATIONS ACT (1894). 45 The amount to l)o allowed for procuring tli(^ atteiid- ance of witnesstjs who live out of Ontario is appai-ently in the discr(;tion of the arbitrator, and is not limited to the amounts above specifi(;d : See Ball vs. Oromp- ton Corset Co., 11 P.ll. 25G, where an expert brought from Buffalo to give evidence was allowed $3,'J.OO per day and expenses. ?i9. The fees for arbitration under this Act shall be as follows: For each arbitrator who shall be present at the hearing of tJJ. '^^^'^ any case, a fee of not more than $5 for each sitting; office fee, including registrar's assis" tance, forms, rooms, etc., $5 tor the first sitting, and S8 for each sitting thereafter, the arbitrator or arbitrators to apportion such sum out of this as they see fit to the registrar for his attendance. The above scale shall apply unless the parties enter into an agreement in writing to pay specifie solemnly swear that I will faithfully, diligently and impartially perform my duty as arbitrator, and I will, (in all cat-es) {or in the case between and now) submit- ted to me, give a true and just award according to the best of my judgment and abihty, without fear, favor, affection of or for any party or person whom- soever. So help me God. SCHEDULE C. (Section 15.) FORM OF OATH, WITNESSES. You solemnly swear that you will true answer make to all such questions as shall be asked of you as a witness under examination in this case between and and therein, and you will to the best of your know- ledge, infoi-mation and belief, speak the truth, the whole truth and nothing but the truth. So help you God. D 50 BOARDS OF TRADE SCHEDULE D. (Section 13.) SUMMONS TO WITNESS. In tlie matter of an arbitration between A. B. and C. D. Under the Boards of Trade General Arbitrations Act, 1894. To E. F. Whereas an arl)itration between the above parties is now pending ; and whereas one of the parties thereto, desires that you should attend before the arbitrator (or arljitrators) to give evidence, and has (or have) authorized and required me as registrar to issue this summons for your attendance, I do hereby in the exercise of the powers in this behalf given by the said Act, summon and require you to attend at on the day of at the hour of in the noon of the said day at before the said arbitrator {or arbitrators) there to be examined and give evi- dence on behalf of and also to bring with you and produce at the time and place aforesaid {specify documents to be produced). In default of your attending at the time and place aforesaid, you are liable to be proceeded against under the provisions of The Boards of Trade Gen- eral Arbitrations Act, 189 J/.. In witness whereof I have hereto set my hand this day of :p^I^T Tx. APPENDIX A. RULES AND FORHS OF THE Toronto Chamber of Arbitration NAME. 1. This Institution shall be called the Toronto Chamber of Arbitration. OFFICES. 2. The Officer of the Chamber shall be in the Board of Trade Building, i„ the City of Toronto, Pro- vince of Ontario. OBJECT. 3. The Chamber shall be available both for voluntary references to Arbitration and for the Arbitration of cases referred to it by the Courts of Law and the Judges thereof. NOMINATION AND ELECTION OP ABBITRATOKS. I. It Shall be the duty of the Council of the Board of Trade of the City of Toronto to nominate trom the community generally not less than thirty persons, out of which number there shall be I 52 BOARDS OF TRADE elected by ballot by the members of the Board, at a special meeting called for that purpose, twenty-five persons, who shall form the Toronto Chamber of Arbitration. CONSENT OF ARBITRATORS TO ACT. 5. It shall be the duty of the Coun'^il of the Board of Trade of the City of Toronto to obtain the written consent of each person nominated, in the Form A. in the Appendix, before presenting same to the General Board. Immediately after the election of the required number of Arbitra- tors, a list of the persons elected shall be pub- lished in the " Ontario Gazette," and the names of the members of the Board of Arbitrators shall be continuously posted in the offices of the Board in the Board of Trade Building. APPROVAL OF ARBITRATORS BY THE GENERAL BOARD. 6. Upon the election by the General Board of the necessary number of Arbitrators, it shall be the duty of the Registrar to forthwith send a notice in the Form marked B. in the Appendix, to each p(!rson appointed. QUALIFICATIONS OF ARBITRATORS. 7. Persons qualified for appointment as Arbitrators shall be British subjects, and all such other persons as in the opinion of the Council of the Board of Trade shall be specially qualified. If convicted of any indictable offence his appoint- in. (IKXKHAL AUHTTllATTONS ACT (1894). 53 Jueiit to act as such Arbitrator sliall thercl.y forthwith be vacated. 8. The Cliainl)ei- shall provide the i)arties wlio sub- mit to Arbitration undei- its Hides with Arbi- tration rooms and all necessary forms and papeis, and shall do or cause to be done ail such acts as it lawfully may do for the purpose of assisting the parties and tlu; Arbitrators in the course oi an Arl)itration. NUMBEH AJsD SKLECTIOX OF AHJilTUATOHS. 9. All Arbitrations under these Kules shall be held before one, two, or three Arbitrators, accoi-ding to the desire of the parties. The Arbitrator or Arbitrators sliall be selected from the approved list by the Registrar of the Chamber, according to the nature of the dispute ; unless the partiel have previously agreed upon an Arbitrator or Arbitrators selected from such list. (b) If the Reference be to two Arbitrators they shall, before entering on the Reference, appoint a third Arbitrator (form J.) to be selected by them from the approved list, and if they fail to appoint such third Arbitrator within three days from the appointment of the last appointed of them, the Registrar shall, upon the application (form K.) jf either of them, or of any party to the Reference, forthwith appoint a third Arbi- trator from such list, who shall have the hke power to act in the Reference and make an award as if he had been appointed by consent of all parties. JraiMI 54 IJOAHDS OK TUADE NOTICK OF SKLKCTION OF AHHITKATOHS. 10. The Registrar shall in every case send to each selected Arbiti-ator a notice of his selection. Such notice shall be in one of the forms marked C. or E. in the Appendix hereto, accordin<;if to the nature of the case. Every such notice shall be accompanies] by a declaration in one of the forms n:aiked D. F. or H. in the Appendix, which the Arbitrator shall sign and return to the Registrar If the appointment of the Ar- bitrator or Arbitrators rests with the Registrar, the Registrar shall, u])on receipt of such declai'a- tion notifying that the Arbitratoi* or Arbitra- tors assents or assent to act in the particular case for whicli he or they have been selected, send to the Arbitrator or Arbitrators notice of his ())■ their appointment which shall be in the Form marked I. in the Appendix. In any case where after submission, but before award, the Reference is determined by the act of the parties, then if the same is so determined before notice has been given to the Registrar by the selected Arbitrator or Arbitrators of his or their assent to act in the particular case, the Arbiti'ator or Arbitrators shall not be entitled to any fees ; but if it is so determined after such notice has been given, then there shall forthwith be paid to the Registrar for the selected Arbi- trator or Arbitrators, by the several parties to the submission, in equal shares, the specified fees for such time as the Arbitrator or Arbitrators (JENKHAL AHIMTHATIONS ACT (1894). 55 shall iiiive sat to hear tho case, and if he or they shall not at the time of such determination have sat to hear the case, then such fees as he or they would have been entitled to if he or they had held a sitting for that purpose. No provision appears to be made as to how the notices mentioned are to be served by the Registrar or a party as the case nniy be, but it would seem clear that "giving notice" means giving notice in the ordinary course of post. The whole object of the Act and rules is to enable the parties to get to work without delay caused by any wilful neglect, or inattention by a party or an arbit n!'»r, and the rule would be un- workable if, say in the case of an arbitrator who had failed to act by going abroad, a party had to show that the notice calling upon him to act had reached him personally. Under Hides 9 and 10 the application to the Regis- trar can he made ex parte. In appointing a third ar- bitrator^ arbitrators are exercising a judicial duty and must use their judgmerit in the selection. In Pescod. vs. Pescod, 68 L. T. 76 (1888), an appointment made under the folloiving circumstances icas set aside by the Court. The arbitrators were U7iable to decide between two persons, each trrote the 7iame of his nominee on a slip of paper. The slips ivere placed in a hat and the ivaiter was called in to draw the lot. The person whose name was drawn was appointed by the arbitrators. Nevertheless if both of the disputants have agreed to or acijuiesced in the arbitrators taking such a course, the award will not be set aside on the ground that the 50 HOARDS OF TItADE unt])i7yi wan improperly ajtpoliUfd. lie Tnnito : ClIAMlilili. 12. The officers of the Chamber shall be the Secretary of the Board of Trade of the City of Toronto ( unless the Council of the Board make a separ- t'lte appointment,) and such other officers as the Council sliall from time to time determine who shall hold office during the pleasure of the Council. DUTIRS OF KKfJISTHAR, 13. The Secretary of the B)ard shall be Ilegisti-ar. The duties of the Registrar shall l)e as fol- lows : He shall by himself or his subordinate re- ceive submissions and payment of fees and costs, select and notify Arbitrators, give notice of hear- ing to parties, keep a Register of Submissions, a Register of Awards and Reconciliations, and such other books and memoranda, and make such returns as the Council of the Board of Trade of the City of Toronto sliall from time to time re- quire. He shall render such assistance to the Arbitrator or Arbitrators in an Arbitration as he or they may require, and generally carry out the instructions of the Council. (iENKIlAL AIJMITRATIONS ACT (1804). 57 DKFUTY UnrJlHTHAK. The Doputy-Registnif, {ippoiiitod by the Coun- oil of the Board of Trade of tlie City of Toronto, shall, during the Registrar's absence, peifo.-nj the' duties of Uegistrai-, and at other times shall dis- charge such duties as the Registrar may direct. 1 iiMS OF SUBMISSION TO BE SIGNED. 14. If two or more persons have a difference which they wish detej-mined by Arlutration, under the rules of the Toronto Chambei- of Arliitration, they shall fill up and sign one of the forms of submission mentioned in and set out in the ap pendix hereto. —Form M. ARBITRATIONS IN PURSUANCK Op SUBMISSION IN CONTRACTS. 15. Whenever a written contract contains a submis- sion of any disputes which may arise, relating to such contract to Arbitration, under the rules of the Toronto Chamber of Arl)itration, without further specifying any particular mode of Arbi- tration under such rule;, si ch disputes shall (subject as hereinafter prtvided), upon the writ- ten application of any party to such submission, addressed to the Registrar, be submitted to the Arbitration of an Arbitrator selected })y the Registrar, and it shall not be necessary for the parties to sign any further submission, but all the terms and provisions contained in the form of submission to an Arbitrator, to be selected by 58 BOARDS OF TRADE the Registrar, which may for the time being be prescribed ]jy the Chamber, shall have the same force and effect, and be binding upon the parties in the same manner as though such terms and provisions had been fully set out and expressed in the submission contained in the said contract, sjive that the time within which an {)ward shall be made in such Arbitration shall begin to run only from the date on which the Registrar shall notify the selection of the Arbitrator to the par- ties. Provided, nevertheless, that if the parties to the said submission so agree, they may, not- withstanding any thing in this rule b fore con- tained, upon dispute arising, sign any form of submission, for the time being prescribed by the Chamber, and appoint or procure to be ap- pointed an Arbitrator or Arbitrators there- under, in which case the dispute shall be deter- mined in accordance with the terras and pro- visions of the submission so signed. ARBITRATIONS IN PJRSUANCE OF AN ORDER OF COURT. 16. Whenever in any proceeding in a Court of Law or Equity, inatters in Hfference between the parties to mch proceeding are by the Order of tlie Court referred to Arbitration, and, by con- sent of the parties, such Order directs that said matters in difference, be referred to Arbitration under the Rules of the Toronto Chamber of Ar- bitration, or to that effect, without specifying any particular mode of Arbitration under such Rules, the said matters in difference shall (sub- GENERAL AlllUTRATIONS ACT (1894). 59 ject as hereinafter provided), upon the written application of any party to such Order, addressed to tlie Registi'ar, be submitted to the Arbitra- tion of an Arbitrator selected by the Registrar, and it shall not be necessai • for the parties to such Order, to sign any further submission, but all the terms and provisions contained in the form of submission to an Arl)itrator, to be selected by the Registrar, which may for the time being be prescribed by the Chaniber, shall have the same force and effect, and be binding upon the said parties, in the same manner as though such terms and provisions had been fully set out and expressed in the said Order, save that the time within which an awai'd shall be made in such Arbitration shall begin to I'un only from the date on which the Registrar shall notify the selection of the Arbitrators to the parties. Provided, nevertheless, that if the parties to the said Order so agree, they may, notwithstanding anything in this Rule before contained, sign any form of submission for the time being prescribed by the Chaml)er, and appoint or procure to be appointed, an Arbitrator or Arbitrators there- under, in which case the said matters iu. differ- ence shall be determined in accordance with the terms and provisions of the submission so signed. FAILURE OF ARBITRATORS TO ACT. 17. (a) If before award a sole Arbitrator or one of three Arbitrators dies or becomes incapable of acting, or declines to act, or seven days after 60 BOARDS OP TRADE notice from the parties or any of them, or from the Registrar, fails to act, the parties may, or if such Arbitrator was appointed by the Registrar, the Registrar, on application by any of the par- ties, may appoint a new Arbitrator to act in his stead, and if such Arbitrator was appointed by the parties, and the parties fail to appoint a new Arbitrator, any party may serve the other pat-ty, or parties, with a written notice to agree upon the appointment of a new Arbitrator, and if such appointment is not made within four days after the service of such notice, the Registrar may, on the application of the party who gave such no- tice, appoint a new Ar])itrator. (b) Any Arbitrator appointed by the Registrar under this rule y]\>iV be selected from the ap- proved list, and shall have like powers to act in the Reference, and to make an award as if he had been appointed by consent of all parties. NO ACTION TO BE BROUGHT. 18. No party to a submission shall bring any action, or commence, or prosecute any proceeding, either at law or in equity, against an Arbitrator or any other party to the submission concerning the matters referred, or any of them. EXTENSION OF TIME FOR GIVING NOTICES. 19. In case any party to a reference resides outside the City of Toronto, the Registrar may, at his discretion, enlarge the time for the performance by such party of any act required or authorized to be done by these rules. GENEUAI. AHIUTHATIONS ACT (1894). 61 on itside at his nance orized RECONCILIATIONS. 20. If after signing the submission, all parties shall have reconciled their difference before the case comes on for hearing, the parties may sign an agreement in the form marked L. in the Appen- dix hereto, and the same shall be entered in a Register kept for that purpose by the Chamber, and copies thereof shall be delivered by the Re- gistrar to any of the parties thereto upon pay- ment of the fees specified in the Act. LEGAL ASSESSORS. 21. (a) There shall be a legal assessor to the said Chamber of Arbitration, who sliall, unless other- wise appointed by the Council of the Board of Trade, be the Solicitor for the Board of Trade, and in case of his absence or inability to attend, then he shall nominate his representative wiio shall act as such assessor, and such assessors shall hold office during the pleasure of the Cruncil of the Board of Trade. (b) The arbitrator or arbitrators or any two of them may request (form N.) the attendance of such assessor to advise and assist him or them in the arbitration, and he shall be entitled, if so desired, to sit with the arbitrator or arbitrators, who may submit any question to liiin for his de- termination and their guidance. (c) The parties may, if they so desire, also re- quest the attendance of such assessor, such re- quest being signified by the parties to the Regis- 62 BOARDS OF TRADE trar (form O.) in writiiify, and thereupon the assessor shall sit with the arbitrator or arbitra- tors for the purpose of advising or assisting him or them in the arbitration. (d) Neither such assessor, nor any member of any legal firm with which he may })e connected, shall take part on behalf of any parties, in any arbitration under these rules. {e) Such arbitrator or arbitrators may pay a rea- sonable fee, to be fixed by him or them, unless the parties agree upon the amount, to such as- sessor for any such attendance or advice which shall be added to the said arbitrator or arbitra- tors' fees, and form part of the costs of arbitra- tion as such. FORM OF SUBMISSIOX. 22. The form of submission to arbitration shall be in the form M., to these rules. TIME. 23. In any case in which any particular number of days, not expressed to be clear days, is prescribed by these Rules, the same shall be reckoned ex- clusively of the first day and inclusively of the last day. Where any limited time less than six days, from or after any date or event, is appointed or allowed for doing any act, or taking any proceed- ing, Sundays or public holidays shall not be reck- oned in the computation of such limited time. Where the time for doing any act, or taking GENERAL ARBITRATIONS ACT (1894). 63 any proceedings, expires on a Sunday, or other day on which the offices of the Chamber are closed, such act or proceeding shall, so far as re- gards the time of doing or taking the same, be considered to be duly done, or taken if done or taken on the day on which the offices shall next be open. ALTERATIONS OF RULES. 24. The Council of the Board of Trade of the City of Toronto may from time to time alter, amend, add to, or omit any of these Rules as may be found expedient, opportunity being previously afforded to the Board of Trade of the City of Toronto to submit suggestions with regard to any proposed alterations, and to be heard thereon. m A. Form of Assent to Nomination as Arbitrator. TORONTO CHAMBER OF ARBITRATION. It having been intimated to me by that it is desired to nominate me as an Arbitrator of the Toronto Chamber of Arbitration, I hereby express my willingness to act, subject to the Rules of the said Chamber for the time being in force. (Signed) Postal Address. Date, B. THE BOARD OF TRADE OF THE CITY OF TORONTO. Secretary's Office, Toronto, 189 TORONTO CHAMBER OF ARBITRATION. Form of Appointment as Arbitrator. The Board of Trade of the City of Toronto doth hereby appoint *« ^^^ ^«. ^"^ Arbitrator of the Toronto Chamber of Arbitration, subject to the Rules of the said Chamber for the time being in force. (Signed) (64) Eeqistrar^ GENERAL ARBITRATIONS ACT (1894). 65 Form of Notification of Appointment of Arbitrator by the Parties. TORONTO CHAMBER OF ARBITRATION. To Sir, — You have been appointed to act as * Arbitrator to decide certain matters in difference between and by a submission signed by them, and dated the day of You are r-equested to sign the accompanying form declaring whetlier you assent or decline to act in the above matter, and to return the same at your eailiest convenience to Dated, ^'^'''"'■- * Sole, or one of two, or one of three. Form of Declaration of Arbitrator Appointed by the Parties, Assenting or Dechning to Act. TORONTO CHAMBER OP ARBITRATION. To the Registrar of the Toronto Chamher of Arhitrntion. In the matter of a submission to Arbitration E 66 HOARDS OF TRADE su^.jocl t.. tli(5 Ptiiles of the Toronto Cliamber of Arbitration, between g^jjjl dated the day of I hereby * to act as an Arbitrator in the above Reference. Dated, (Signed) * Assent or deeline. E. Form of Notification of Appointment of Third Arbitrator by Two Arbitrators. TORONTO CHAMBER OF ARBITRATION. To Sir,— You have been appointed by the Arbitrators to act as third Arbitrator with regard to certain mat- ters in difference between ,^^^1 which have been referred to the said Arbitrators by a submission signed by the said parties and dated the "^y of You are requested to fill up and sign the accom- panving form declaring whether you assent or decline to act in the above matter, and to return the same at your earliest convenience to Pated, OKNEIIAI. AKHITllATIONS ACT (1894). 67 F. Form of Declaration of Third Arbitrator Ap- pointed by Arbitrators, Assenting or Declining to Act. TOKONTO C1£AMBKK oF AH TITRATION. To the ReyUrar of the Toronto Chamber of Arlntrutani. In the matter of a subinission to Arlntratioti, siil)- ject to the Rules of the Toronto Cfiauiber of Arbitra- tion, between ^"^ dat(3d the day of I hereby * to act as third Arbitrator in the above Reference. Dated, (Signed) * Assent or decline. H. Declaration in answer to request of Registrar to act as Arbitrator. TORONTO CHAMBER OF ARBITRATION. To the Registrar of the Toronto Chaniherof Arhltration. In the matter of a siil)misHion to Arbiti-ation, sub- ject to tlie rules of the Toronto Chamber of Ar))itra- tion, l)etween mtmum 68 BOAUDS OF TRADE and the I here))y * in the above reference. day of to act as X Dated, (Signed) *Assent or decline. dated X, Sole Arbitrator, or one of two Arbitrators, or one of three Arbitrators. I. Form of Appointment by Registrar of Arbitra- tor or Arbitrators. TORONTO CHAMBER OF ARBITRATION. To In the matter of a submission to Arbitration between ^'^^ dated the aity to tlie ;il)ove submission (or) an Aibiti-ator ap])ointed in the above sul)mission). L. Notice of Reconciliation. TOUOXTO CIIAMHEU OF AHUTTHATIOV. AV^lieieas \)y a submissi<^n to Ai'bitration, dated the day of 18 , we, the undersigned referred certain matters ir dif- ference between us to be determined Ijy Arbitration. And wliereas we have settled all the said matters in (Hfference, we do herel)y witiidraw the said case from Arbitration. And we desire tluit the terms of our agreement be entered in the llegister of the Chamber. They are as follows : — Dated this day of (Signed ) 18 OENKKAI. A|{|'.iri!ATI<)NS ACT (1point giinerai arbitrators for certain pur- poses." Now it is Her(iby Agreed by the said parlies thac all matters in difference between them in relation to the premises shall be and are hereby referred to ♦•^nd and in case they cannot agree upon a thiid aibitrator within three days, to such third arbitrator as the llegistrar of the Chaml)er of Arbitration may select. It is agreed that the parties shall be governed by all the rules of the Toronto Chamber of Arbitration which are hereby made part of this bond as if specifically written therein. In witness Whereof the said parties have hereunto set their hands and seals. Signed, sealed and delivered in the presence of ■ed ) 72 BOARDS OF TRADE Form of submisfiion suggested. Ante p. Jfl. M2. Form of Submission. Agreement made this between of of day of 189 and Whereas differences have arisen between the parties hereto in respect of and they have agreed to refer such differences to arbitra- tion upon the terms and conditions contained in the Act of the Legislature of the Province of Ontario intituled *' An Act enabling Boards of Trade in cities to 'appoint general arbitrators for certain purposes." 2^ow ^t is Hereby Agreed by the said parties that all matters in difference between then> in relation to promises or any further raatto^'S of difference be- tween them which may arise out of the said matters during the hearing of this reference shall be and are hereby referred to and and in case they cannot agi-ec upon a third arbitra- l^or within i\\\'v(\ days, to such third arbitrator as the Registrar of the Chamber of Arliitration may select. It is agreed that the parties shall be governed by all t}ie rules of the Toronto Chamber of Arbitration which are hereby made part of this bond as if specifically written herein. In witness whereof the said parties have hereunto set their hands and seals. Signed, sealed and delivered \ in the presence of j GENERAL ARBITRATIONS ACT (1894). 73 N. Request for Attendance of Legal Assessor. TORONTO CHAMBER OP ARBITRATION. In the matter of a Submission to Arbitration, subject to the rules of the Toronto Chamber of Ar- bitration, between and dated the day of 18 ; we, the X appointed to act in tliis reference desire the attend- ance of the Legal Assessor at the said Arbitration, subject to ihe rules of ihe Chamber. Dated this day of (Signed) To the Registrar X Arbitrator or Arbitrators. o. Request for A.ttendance of Legal Assessor. TORONTO CHAMBER OF ARBITRATION. Whereas by Submission to Arbitration, dated the day of ; we, the undersigned, .afc'red certain matters in difference between us to be determined by Arbitration ; we hereby giv^e notice that we desire the attendance of the Legal Assessor at the said Arbitration, subject to the rules cf the Chamber. Dated this To the Registrar (Signed) day of 'mimmimmmmmmmmmmimam^. APPENDIX B. 2 years. Ti:\lE TABLE. Tfiiii of ortice of Ar])itrat()i-s (see p. 25) - Time for making award from date of sub- mission, unless enlarged (see p. 36) - 21 days. Notice by party to Registrar of intention to be represented by Barristei-, Solicitor, or Agent (see p. 38) - ... 2 days. Time for motion to set aside for fraud (see P- 42) 1 inonth. Notice of liearing given by l^egistrar to parties (see p. 43) Notice to Arbitrator requiring him to act (see p. ')d) - - . . - appoint 5 days. 7 days. Ai'bitrator (see p. GO) - . - 4 d The question of the calculation of time is dealt with by Rule 23 (see p. 62). !iys * INDEX. PAGE Absence of Party . . 3 Actions against arbitrator i;i, 60 against party to arbitraHon. 60 agreement to refer no defence to an 9 Adjournments 37 costs of 38 Affirmation instead of oath .i3, '65 form of 34, 35 Agent of party cannot be arbitrator 10 his authority to refer disputes 7 presence of 2 representation by 38 authority of 38 legal assessor not to act as 62 Alteration of rules o'.i Amendment of rules 63 Application to Registrar may be ex-parte 55 for appointment of third arbitrator, form of 69 Arbitration, see Submission, Arbitration, Award what is ....(>, 7 in pursuance of a contract 57 in purstiance of order of court 58 proceeiiings before 13 parties to 7 matters to be referred to 8 between members of Board of Trade 47 boarils of 23 names of members of to be published and posted up 25 who may attend , 39 Arbitrator, action against 13, 60 agent of party can not be 10 aud valuator compared . . . 6 appointment of 23,25, 51 by Registrar, form of 68 i& for two years , 25 p. IGE , 3 \ 60 , 60 , 9 , 37 • • 38 i, ;]5 4, 35 , 10 • • 7 , 2 , , 38 38 ^ , 62 , , u3 63 , , 55 • ■ 69 • • 0, 7 57 , , 58 , , 13 , , 7 ■ • 8 , , 47 23 if ) 25 . . 39 l3, 60 10 • 6 15. Dl , , 68 ., 25 INDEX. 77 PAGE Arbitrator, appointment of, new go new by Registrar, form of 64 by parties, notification of 65 assent to act as, Form of 1(54 cannot state cause for opinion of court 39 consent of, to act 24 52 death of j 39 discretion of, as to adjournment 37 witness fees 44, 45 disqualification of, by crime 26 dissenting, duty of 21 election of, to be notified 51, 54 excess of Jurisdiction of 41 expert, as 24 failure of to act 59 fees of 45 included in costs 43 where reference not concluded 54 fixes order of business 14 17 has discretion as to costs 43 how chosen where reference by order of court 59 incompetency of 25 41 manager of Company, as . 10 may allow certain persons to attend.. 39 may decide as to contribution 7 may lump claims 19 may proceed ex-parte, when 23 may request assessor tt attend 61 may state special case 33 must act on legal evidence 40 must decide all questions submitted 18 must hear both sides 14 must himself perform all judicial acts 14 must sign declaration 54 must not hear evidence ex-parte 14 must not reserve points for future determination . . 20 need not be member of Board of Trade 25 need not state reasons 25 nomination of 24 51 notes of 17 oath of 49 78 INDEX. PAGE Arbitrator, objection to, how taken 11 performs judicial functions (5 refusal of, to attend 46 to be notified of appointment 27, 50 who dissents, duty of 21 who may act as 9, 52 third, appointment of 53, 55, 56 Arbitrators, all, to attend whole hearing 46 all to sisirn award at same time 21, 22 award of two 2, 4(5 fees of 45 where reference not concluded 54 where award not taken up 46 how chosen 2 list of, to be published and posted up 25, 52 number of, 27, 53 selection of, from list 53, 56 to sign award 36 Attendance of parties 3, 39 Attendance of witness how procured 32 Award, general requisites 17 attestation of 21 binding if of majority of arbitrators 45 copy of, party may have 36 Costs, part of 20 description in, to be cleai* 22 formof 20, 21 filing, effect of 40 how enforced 4 as to land conveyance 20 may be filed in High Court 31 on case stated 39 set aside for fraud 40 motion to set aside 42 must be certain , 17 must be final 18, 40 objections to 9 objections to, how taken 11 presumption that all claims disposed of by X-J PAGE , 11 , i\ > • 46 7, 50 , , 21 9, 52 5, 56 , , 46 1, 22 2, 46 ., 45 54 ^ , 46 , , 2 25, 52 27, 53 53, 56 .. 36 .3, 39 ■ • • 32 , 17 , 21 • • 45 36 > • • 20 ^ , . 22 20 , 21 , , . 40 , , . 4 .. . 20 , , . 31 ., . 39 ,. . 40 .. . 42 , , . 17 .18, 40 , , . 9 . 11 INDEX. 79 Award, recitals in ^'^^^ ;^f'°^^^ '•••••••■■■■v.\v.v.v;.;.v;.2i,22,36 taking up ' 2Q time for making „g where submission in contract 58 by order of Court 59 to be binding to be deposited with Registrar ,.. . , "..*.*.* 36 to be final settlement [ '^q to be in writing '' „ Barristers, representation by ' yg Board of Trade, Council of, to determine 'number of Arbitra- tors 23 rooms, etc., provided 26 53 may make rules ' ^j formation of, in cities other than Toronto. ! 47 electing members of, as Arbitrators 2.-> Certificate may be filed ' ' u Chamber of arbitration, how established. . . . . . *. ". *. '. '. ". '. ". ' '. '. * 23 24 of Toronto, Rules of ' 51 how constituted 51 object of. 51 ri, . . . _, officers of 51 Christian, Form of oath of.. ^4 Collateral dispute between Arbitrator' and party m Commission to take evidence Z Consent of Arbitrator to act ' < -f Contract, submission in writing "^ ' tf Conveyance, award may direct !,,, Copy of award, party may have.. Z. Corporations, submissions of to be under s»al 7 Corroboration of evidence where estate of deceased person 'a party 29 'n Costs in discretion of arbitrator. '43 may be lump sum of adjourned hearing ..^ of attendance of counfei. " \r of attendance of witnt sses 44 45 f recovery of fees , ' ' 80 INDEX. PAGE Costs, part of awaid 20 registrar to receive 27, 56 table of 45 to be awarded seijarately 20 Council of Boar :1 may make rules 47 Counsel, assessr r not to act as 61 authority of, to be filed 38 notice of presence of, to be given 38 Ijresence of 2, 13, 38 to file authority 38 Court, Arbitration pursuant to order of 58 may refer matters to Toronto Chamber of Arbitration 51 opinion of, cannot be obtained 39 Credit of witness may be impeached 13 Crime, dis(iualification of Arbitrator by 25, 52 Cross examination of witnesses 13, 14 Death of Arbitrator 7, 59 party 3, 29 Deceased person, evidence against estate of 29, 30 Declaration to be made by Arbitrators 54 form of 65 Deputy Registrar 57 Description of lands, etc., must be suflicient 22 Discretion, ajipointment of third Arbitrator an act of 55 Discretion of Arbitrator as to adjournment 37 coses 43 witness fees 44, 45 Disqualification of Arbitrator by crime 25 Documents, production of 3, 32, 33 Enlargement of hearing 37 time for doing any act 6 time for making award 36 Evidence, arbitrator not \ 'und by strict rules of 13 assessor may ruie as to 3 commission to take 42 example."! of mode of taking 15 mutt be received 14 must be relevant 13 not to be taken ex-parte 14 oi foreign witness, costs of 45 Of der ip yrhich, given 15 1NJ)KX. 81 'AGE . 20 ', 56 . 45 . 20 . 47 ,. 61 .. 38 .. 38 3, 38 .. 38 .. 58 on 51 .. 39 ... 13 25, 52 13, 14 7, 59 .3, 29 29, 30 54 65 , 57 . 22 . 55 37 . 43 44, 45 . 25 32, 33 . 37 . G . 36 . 13 ,. 3 . 42 .. 15 .. 14 .. 13 .. 14 .. 45 .. 15 I'ACfl Evidence, party taken by Hurprise by 37 mien of 13 shouM 1)0 re},Miliitly before Arbitrator 40 taken on eonuiii-ision 42 where estate of deufased person inv(»lved 2!>, 30 Examination t)f witnesseH, rules as to l',i, 14 Examples of mode of taking evidence 15 Execution for fees where award not taken up 40 Ex-parte, application to Registrar may be 55 evidence not to be taken 14 Expenses of attendance of counsel 38 Experts as Arbitrators 24 Facts on which decision baaed need not be stated 22 Failure of Arbitrator to act 7, 59 Fees, recovery of 40 of Arbitrators 45 where reference not included 54 of assessor 02 of witnesses 43 payable 2, 43, 45 penalty for demanding more than legal 20 recoverable although award not taken up 46 registrar to receive 27, 50 special agreement as to 45 to be paid before copy of award handed out 36 Final, award must be 18 Form of award 20 Forms to be provided , 26, 53 Forms : Application for appointment of third Arbitrator 69 attendance of legal assessor 73 Appointment of Arbitrator by Board of Trade "4 T^egistrar 68 third Arbitrator 69 Arbitrator's oath 49 declaration 65, 67 Assent to nomination as Arbitrator 64 Declaration by Arbitrator 66, 67 Notice of reconciliation 70 Notification of appointment of Arbitrators by parties 65 third Arbitrator 6(i I 82 INDEX. PAGE Forms, Oath of Arbitrator 49 Oath of witnesH 34, 49 Request for attendance of legal asseHsor 73 SubmJHsion 48,70,71, 72 SumnionH to witness 50 Fraud, award may be set aside for 40 form of reference where question of 8 injunction where arbitrators guilty of 41 motion to set aside award for 42 will vitiate award, what 40 Future differences may be referred 8 Form of reference of 8 General Arbitrations Act, 1894 : — S. 11) 38 S. 20 38 S. 21 39 S. 22 39 S. 2,i 40 S. 24 42 S, 25 42 S. 20 42 S. 27 43 S. 28 43 S. 29 45 S. :50 45 S. 31 46 S. 32 47 S. 33 47 S. 34 47 Schedule A 27, 48, 52 B 29, 49 34, 49 D 32, 50 Hearing, adjournment of 37 all arbitrators to attend , 45 costs of adjourned ..... 38 neglect of arbitrator to attend . 45 notice of 27, 43, 56 adjourned 37 time of . . 37 to be continued de die in diem 37 who may attend 89 Synopsis of Act S. 1 1, T) S. 2 23 S. 3ss 1 25 ss 2, 3, 4, .5, 6 S. 4 26 20 S. 5 27 S. 6 . ... 27 S. 7 27 S. 8 28 S. 9 29 S. 10 S. 11 ..29 31 S. 12 31 S. 13 32 S. 14 33 S. 15 33 S. 16 S. 17 36 36 S, 18 37 INDEX. 83 .38 . 38 . 39 ..39 . 40 .42 . 42 ..42 . 43 . 43 . 45 ,. 45 .. 46 ..47 .. 47 ...47 8, 52 9, 49 |4, 49 52, 50 I.. 37 , 45 . 38 . 45 13, 56 .. 37 .. 37 .. 37 .. 89 FAQS Holidays, office closed on 56 noil included in computation of time, when . ... 62 time expiring on 62 Incompetency of arbitrator, crime a cause of 41 injuncti(m in caHe of 41 Inconsistent with Act, rules not to be 47 Indemnity, form of reference as to 41 Infant, submissioii by 7 Injunction, Court may interfere by 11, 41 prevention of injustice by 41, 42 takes place of leave to revoke submission 12 where Arlntrator incompetent • 41 Interest in result. Arbitrator must not have 10, 41 Jbw, oath of 34 Judge may refer matter to Toronto Chamber of Arbitration... 51 Jurisdiction, Arbitrator exceeding 41 of Toronto Chamber of Arbitration 51 Land, Form of reference as to title to 41 Law, " " " (juestions of 41 Leading (Questions, Witness not to be asked 13 Legal a8.ses8or 3 appointment of 61 how attendance of, procured 01 not to act as counsel 62 request for atteiulancf of, form 73 List of Ai'bitrators to be pctsted up and published 25 selection of Arbitrators from .53, 00 Lump sum. Arbitrator may award 19 Lunatic, sabml-sion by 7 Majority of Arbitrators may sign award 45 Manager of litigant company as Arbitrator 11 Matters to be referred 8 Menoniat, Oath of 34 Money award must be exact 22 Moravian, Oath of 35 Names of Arbitrators to be posted and published 25 Notes, Arbitrator should take 17 Notice, enlargement of time for giving 60 how served 55 of adjourned hearing 37 of appointment of Arbitrator by pai ties 65 s.aj Ai '«'- ''^~' r,% ]^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 |50 ""'^= u M M 18 LA. IIIIII.6 V. <^ /2 ^l. o^. ^. .--^V ^ /^ y^ y iV iV •1? \ :\ ^. «^'^ "^ 't^ ^ r^^ &? iV »-'iiU-.w«t^nr« <»iimi»»lrliLjjia45 84 INDRX. PAGE Notice of attendance of agent, etc. , to be given 38 of election to be sent to Arbitrators 52, 54, 56 of hearing, length of 43 to be given 27, 43, 56 reconciliation, Form of 69 !M umber of parties to arbitration 7 Arbitrators 23, 27, 53 Oath, Affirmation instead of 33, 35 form of 34 omission to take 29 of Arbitrator ....28, 29 form of 49 witness . .' 3, 33, 34 form of 34, 49 Objection to awar^i, how taken 11 on gro'-'id that Arbitrator not sworn 29 what is 9 Office closed on holidays 56 Offica fee.s to be jjaid 43 what 45 of Toronto (Jhaniher of Arbitration 51 Offibers " " " 56 Opinion of Court, Arbitrator cannot obtain 39 Order of donrt, Arbitration pursuant to 58 subtnission after 59 Papers to be provided 26, 33, 53 Parties, Attendance of, may be dispensed with 3, 39 may agree on Arbitratt >r 53 recpiest attendance of assessor 61 to Arbitration 7 to be given notice of hearing 56 t ) i>ay fees in equal shares, when 54 Partners, reference in case of disputes between 8 submission of 7 Party, absence of 3, 33 death. .f 3, 29 begins, which 15 may conduct his own case 2 have c<»py of award 36 travelling expenses nf, allowed, when 44 INDEX. 85 PAGE .. 38 4, 56 ... 43 13, 56 .. 69 .. 7 27, 53 33, 35 ... 34 ... 29 28, 29 . .. 49 33, 34 34, 49 . . 11 ... 29 ... 9 ...56 ... 43 ... 45 ... 51 .... 56 .... 39 .... 58 .... 59 53 39 . 53 . 61 ,. 7 . . 56 .. 54 .. 8 7 3, 33 3, 29 .. 15 .. 2 .. 36 ... 44 „ . PAGE P*^m'>r 34 3j. Post, notices may be served by '55 Presumption that Arbitrator had disposed of all claims. ..... 19 Private, proceedings to be 2 39 Privilege, claim of * ' 32 Procedure, general remarks on 2 in cases not specifically provided for 42 order of , , where party does not attend 3 Proceedings to be private 2 39 Production of documents 3' 3.^ privilege to refuse ' 3.2 summons for 07 "W Publicatiom of list of Arbitrators .' ' 25 report of proceedings not allowed 2 Quaker, oath of ... Keasons, Arbitrator need not state 22 Recitals in award ^^ Reconciliation, agreement of J^i form of notice of ^^^^ register to be kept 27 56 61 Re-examination of witness ' ' -. , Reference, Arbitrator regulates order of business on. . . . . . ' ... 17 by order of Court .'")S form of ""^' ^(j not concluded, Fees of Arbitrators where ...[ 54 order of business on 1 , «^«P««f ■'■'.•'■'.'..''.''^''^'^^'.8, 40 to be clearly stated o to Toronto Chamber of Arbitration, voluntary .... ,51 T, f , - ^ , . ^y order of Court 51 Refusal of Arbitrator to act 7 k,. Register of Awards and Reconciliations. 07 k,^' m 1 . . ^<,00, Di submissions 07 t^i- Registrar, absence of ' 1_ application to, may be ex-parte .5.5 apjjoint new Arbitrator \-q deputy of ^_ duties of 27 56 ^^"«"f ••^'V.v. "!*!;:. ;;;:43; 45 gives notice of hearing 43 86 INDEX. PAGE Registrar issues summons for attendance of witness 32 production of document 32 makes returns 27, 56 may extend time 60 notifies Arbitrator of election 52 '■ party of attenJance of counsel 38 Secretary of Board of Trade to be 27, 56 selects Arbitrator ... ,53 fiegulations must be consistent with Act 47 to be made by Board of Trade 47 Reporters, presence of 39 Reports of proceedings not to be issued 2 Returns, Registrar to make . , . 27, 56 Revocation of Hubmission 1/, 27, 28 " " " not affected by death of party 29 Rooms to be provided 26, 53 Rule of Court, making award 31 Rules, alterations of 63 must ^ K! consistent with Act 47 of Toronto Chamber of Arbitrarion 51 to be made by Board of Trade 47 where reference by order of Court 59 Schedule of fees 43, 44 Secretary of Board of Trade to be officer of Toronto Chamber of Arbitration 56 Secretary of Board of Trade to be Registrar 27, 56 Service of notices may be by post 55 Setting aside award 40 Short title of Act 6 Sick person, evidence of 42 Signature of all Arbitrators to be at same time 21, 22 Signing award 36 Solicitor, attendance of 2, 38 notice of attendance of 38 to file authority 38 Special fees, agreement as to 45 Stated case 3, .39 Submishion, after agreement in written contract 57, 58 " order of Court 58, .59 by Agent, effect of 7 "infant, " *' 7 INDEX. 87 PAGE .. 7 57 Submissi;.!! by lunatic, eflFect of contained in written contract. effect of death of party on . . . ".j form of irrevocable may be filed with award may be made a nile of court of corporation of partners registrar to receive revocation of .... 48, 57. 62, 71, 72 2, 29 31 31 7 7 27, 56 12 27 sole basis of Arbitrator's authority ,...". '9 to be in writing where arbitration between members 'of Board' of Irade where dispute between partners. o Submissions, register of, to be kept 97* .« Subpoena, not necessary ' Subsidiary questions, determ'ination of '.' ^ bummons, disobedience to to witness ' form of ^ Sunday, office closed on '. not included in computation'of time" where" ' ." 62 time expiring on . . Surprise of party a reason for adjournment.* 07 Purveyor as witness, fees of Taking up award ^"^ Technical phraseology unnecessary ^^ Third Arbitrator application for appointment of.' Form of m. appointment of ... . «.. ►► ^„ Th.rd Arbitrator, form „f appointm.nt 0^ 't^^t^^. ''' ^9 Time, e„lar«e„,e„tr."' ■"»;"«-*»"' "PP-ntment of. ... ! 66 for making award f^. after reference by order of court 59 for making award after submission in contract " " " ?« tor moving against award 4° howreckoned of hearing [\ ^^ of notice of hearintr ^^ * 43 21 69 88 INDEX. € n^x, CAS. ^^^^ Titie of Act g Toronto Board of Tratle, Secretary of, to be otticer of Toronto Chamber «'>f Arbitration ,5(j V.oar«l of Tradb, Secretary of, to be Rej,'i3trar 27, 56 Toronto Chamber of Arbitration, how cimstituted 51 objects of 51 offtce of 51 officers of 56 rules of 51 Travelling expenses of party 44 witness 44 Tunker, oath of 34 Umpire, improperly appointed 55, 00 to be notified of appointment 27 Unprovided for cases, law applicable to 42 Voluntary reference to Toronto C'hamber of Arbitration .... 51 Voluntary Submission^, law of, applied 42 Witness, absence of, a f,'round for adjournment 37 credit of, may be impeached 13 examiuaticm of , 13 fees of 43 foreign, costs of procuring attendance of 45 may be convicted of perjury 34, 36 oath of 34, 49 re-examinati(m of It summons to 27, 32, 50 to awai'd unnecessary 21 to be sworn 3, 33, 34 travelling expenses of 44 who disobeys summons 32 Witnesses, commission to examine 42 Writing, agreement to pay special fees to be in 45 award to be in 21, 36 consent of arbitrator to act to be in 24, 52 enlargement of time for making award to be in 36 submission to be in 57 Written contract, arbitration after submission in .58 submission in 57 ^8254il 27 42 1 .... 51 42 37 13 13 43 45 ....34, 36 ....34, 49 It 27, 32, 50 21 .3, 33, 34 44 32 42 45 21, 36 24, 52 in 36 57 58 67