Consultations: Master Framework Agreement

SCHEDULE 8.1
ARBITRATION PROCEDURES

1. Definitions and Interpretation

(a) Definitions – Unless otherwise defined in this Schedule, all terms defined in the Agreement which are used in this Schedule have the same meaning as provided for those terms in the Agreement. Where used in this Schedule, unless the context or subject matter otherwise requires, the following words and phrases will have the meaning set forth below:

“Act” means the Arbitration Act, 1991 (Ontario) or the International Commercial Arbitration Act (Ontario), as applicable.

“Approved Arbitrator” means a retired judge of the Supreme Court of Canada, Ontario Superior Court or Court of Appeal or a senior qualified lawyer who is impartial and independent of the Parties.

“Arbitration Tribunal” means the arbitrator appointed pursuant to Section 2 of this Schedule.

“Court” means the Ontario Superior Court of Justice.

“Dispute” means any matter which a Party, in accordance with the Agreement, submits to arbitration in accordance with the terms of this Schedule.

“Procedures” means the arbitration procedures described in this Schedule.

“Schedule” means this schedule of arbitration procedures.

(b) Governing Law and Jurisdiction – The seat of the arbitration shall be Toronto, Ontario and all Disputes referred to arbitration (including the scope of the agreement to arbitrate, the law relating to the enforcement of the agreement to arbitrate, any relevant limitation periods, the law governing the procedure of the arbitration, the law relating to available remedies, set-off claims, conflict of laws rules and claims to costs and interest) shall be governed by the laws of the Province of Ontario.

(c) Time – In the computation of time under the Procedures or an order or direction given by the Arbitration Tribunal pursuant to this Schedule, except where a contrary intention appears or the Parties otherwise agree:

(i) where there is a reference to a number of days between two events, those days shall be counted by excluding the day on which the first event happens and including the day on which the second event happens, even if they are described as clear days or the words “at least” are used;

(ii) where the time for doing any act under this Schedule or any order or direction given by the Arbitration Tribunal expires on a day which is not a Business Day, the act may be done on the next day that is not a Business Day; and

(iii) delivery of a document or notice provided for in this Schedule or any order or direction given by the Arbitration Tribunal made after 5:00 p.m. (Toronto time) or at any time on a day which is not a Business Day, shall be deemed to have been made on the next Business Day.

2. Commencement of Arbitration

(a) Any Party (or Parties) (collectively, the “Claimant”) may commence arbitration of a Dispute by delivering a written notice (a “Notice of Arbitration”) to the Party (or Parties) against whom the Claimant seeks a remedy (collectively, the “Respondent”). Where a Dispute arises which involves more than one Respondent, the Claimant may commence arbitration of the Dispute by delivering a Notice of Arbitration to each Party that is a Respondent.

(b) In the Notice of Arbitration, the Claimant shall describe the substance of the Dispute and name three individuals whom the Claimant is prepared to appoint as arbitrator, each of such individuals to be an Approved Arbitrator.

(i) Within 10 days of the receipt of the Notice of Arbitration, the Respondent shall by Notice to the Claimant agree to the appointment of one of the three individuals named by the Claimant or provide the Claimant with a list of three other individuals who are Approved Arbitrators.

(ii) Within 10 days of receipt of the Respondent’s list, by Notice to the Respondent, the Claimant shall agree to the appointment of one of such individuals, or provide a further list of three Approved Arbitrators. The Parties shall continue to exchange lists of three Approved Arbitrators in this fashion until the Arbitration Tribunal is appointed.

(iii) If the Arbitration Tribunal is not appointed within 30 days of the initial receipt by the Respondent of the Notice of Arbitration, either Dispute Party may provide copies of the exchanged lists to the Independent Directors, who shall appoint the Arbitration Tribunal by majority vote.

(c) Where any Party is a party to two or more pending arbitrations in relation to the same Dispute, such Party may apply to the Court for the consolidation of such arbitrations and other Parties to such arbitrations shall agree to the consolidation on such terms as the Court shall consider just.

3. Arbitration Procedures – The following procedures shall apply to the arbitration of any Dispute, except as the Parties may otherwise agree or as the Arbitration Tribunal otherwise directs:

(a) Within 20 days of the appointment of the Arbitration Tribunal, the Claimant shall deliver to the Respondent and the Arbitration Tribunal a written statement (the “Complaint”) concerning the Dispute setting forth, with particularity, the full names, descriptions and addresses of the Parties, the nature of the Complaint, the allegations of fact supporting the Dispute submitted for arbitration and the relief or remedy sought.

(b) Within 30 days after the delivery of the Complaint, the Respondent shall deliver to the Claimant and the Arbitration Tribunal a written response (the “Answer”) to the Complaint setting forth, with particularity, its position on the Dispute and the allegations of fact supporting the Answer.

(c) If the Respondent fails to deliver an Answer within the time limit referred to in Section 3(b), the Respondent shall, subject to Section 3(f), be deemed to have admitted the allegations of fact alleged in the Complaint and have accepted the Claimant’s entitlement to the relief and remedy set out in the Complaint.

(d) Within 10 days after the delivery of any Answer, the Claimant may deliver to the Respondent and the Arbitration Tribunal a written reply to that Answer, setting forth, with particularity, its response, if any, to the Answer.

(e) If the Respondent wants to submit any other Dispute to the Arbitration Tribunal it may, within the time provided for the delivery of the Answer to the Complaint, also deliver to the Claimant and the Arbitration Tribunal a counter-complaint (the “Countercomplaint”) setting forth, with particularity, the nature of the Countercomplaint, the allegations of fact supporting the Countercomplaint and the relief or remedy sought, for the Arbitration Tribunal to decide. Within 20 days of the delivery of a Countercomplaint, the Claimant shall deliver to the Respondent making a Countercomplaint and the Arbitration Tribunal a written response to such Countercomplaint (the “Response to Countercomplaint”) setting forth, with particularity, its position on the Countercomplaint and the allegations of fact supporting the Response to Countercomplaint. If the Claimant fails to deliver a Response to Countercomplaint within such 20 day period, the Claimant will be deemed, subject to Section 3(f), to have admitted the allegations of fact alleged in the Countercomplaint, and have accepted the Respondent’s entitlement to the relief and remedy set out in the Countercomplaint. Within 10 days after the delivery of a Response to Countercomplaint, the Respondent may deliver to the Claimant and the Arbitration Tribunal a written reply to such Response to Countercomplaint setting forth, with particularity, its response to such Response to Countercomplaint. Any Dispute submitted to arbitration in accordance with this Section 3(e) shall be governed by, and dealt with as if it were the subject of a Notice of Arbitration, that shall be determined by the same Arbitration Tribunal as part of the same arbitration proceeding as the Notice of Arbitration.

(f) The time limits set for the delivery of the documents referred to in Sections 3(a) to 3(e) inclusive may be extended by agreement of the Parties or by the Arbitration Tribunal for such period, on such terms, and for such reasons as the Arbitration Tribunal may determine upon application made to the Arbitration Tribunal in writing by either the Claimant or the Respondent on Notice to the other, with such application being made either before the expiry of the time limit in issue or within two days after such expiry, and the Arbitration Tribunal may relieve the applying Dispute Party of the consequences of its failure to comply with the time limit in issue, provided, however, that the other Dispute Party shall be given an opportunity to make submissions on the application.

(g) Within 20 days following the completion of the steps set out in Sections 3(a) to 3(e) of this Schedule, a Dispute Party may, upon Notice to the other Dispute Party and to the Arbitration Tribunal, request the Arbitration Tribunal to give directions and make any order which is, in the discretion of the Arbitration Tribunal, reasonable regarding any procedural matters which properly should be resolved before the arbitration proceeds further, including the amendment of any pleadings, the provision of particulars, the production of documents and the need for examinations for discovery in connection with the arbitration, either by way of oral examination or written interrogatories, and a determination as to the manner in which evidence shall be presented to the Arbitration Tribunal (by way of agreed statement of facts, sworn evidence and transcripts of cross-examinations on such sworn evidence or viva voce, or some combination thereof). In making any order or giving any direction in respect of any procedural matter the Arbitration Tribunal may impose such terms as are reasonable in order to ensure the completion of the arbitration in a timely manner. The Notice requesting any direction or order pursuant to this subsection shall state the direction or order sought and set out the reasons for seeking such direction or order. Nothing in this Section shall be taken to limit the jurisdiction of the Arbitration Tribunal to deal with procedural matters in accordance with the Act.

(h) If no Dispute Party has requested directions in accordance with Section 3(g), the Arbitration Tribunal shall give directions regarding the further procedural steps in the arbitration, including any production of documents, any examinations for discovery, and the nature of any hearing (“Hearing”). In making any order or giving any direction in respect of any procedural matter the Arbitration Tribunal may impose such terms as are reasonable in order to ensure the completion of the arbitration in a timely manner. Each of the Parties shall have an opportunity to make oral submissions to the Arbitration Tribunal in respect of such procedural steps.

(i) Unless the time for making an award is extended by agreement of the Parties or by court order, the Arbitration Tribunal shall make an award within 60 days after completion of any Hearing or other final procedural step in which evidence or argument are provided to the Arbitration Tribunal. The award shall be in writing and shall state the reasons on which it is based. Executed copies of all awards shall be delivered by the Arbitration Tribunal to each Dispute Party as soon as is reasonably possible.

4. Agreement to be Bound – No individual shall be appointed to the Arbitration Tribunal unless he or she agrees in writing to be bound by all provisions of this Schedule.

5. Arbitration Tribunal Discretion – Subject to the Act, the Agreement and this Schedule, the Arbitration Tribunal may conduct the arbitration in such manner as the Arbitration Tribunal considers appropriate.

6. Interim Relief – At the request of any Dispute Party to the arbitration, the Arbitration Tribunal may take such interim measures as the Arbitration Tribunal considers necessary in respect of the Dispute, including measures for the preservation of assets, the conservation of goods or the sale of perishable goods. The Arbitration Tribunal may require security for the costs of such measures.

7. Remedies – The Arbitration Tribunal may make final, interim, interlocutory and partial awards. An award may grant any remedy or relief which the Arbitration Tribunal considers just and equitable. The Arbitration Tribunal shall state in the award whether or not the Arbitration Tribunal views the award as final or interim, for purposes of any judicial proceedings in connection with such award.

8. Experts – The Arbitration Tribunal shall not, without the written consent of the Parties to the arbitration, appoint any expert or other consultant or retain any counsel to advise him or her.

9. Appeal – The award of the Arbitration Tribunal shall be final and binding on the Parties to the arbitration, and shall not be subject to any appeal to court, even on questions of law. An appeal on any question of fact, law or mixed fact and law may be made to an appeal arbitration tribunal composed of three arbitrators (the “Appeal Arbitration Tribunal”), who shall be chosen through the process set out in paragraph 2 of this Schedule. The procedures to be applied by the Appeal Arbitration Tribunal shall be determined by that tribunal as it considers appropriate. The award of the Appeal Arbitration Tribunal shall be final and binding and shall not be subject to any appeal to court or to any other arbitrator, even on questions of law. The Appeal Arbitration Tribunal may grant interim relief. The Appeal Arbitration Tribunal may dismiss the appeal, or give the award that it finds the Arbitration Tribunal should have given.

10. Costs of Arbitration – The fees and expenses of the Arbitration Tribunal and any Appeal Arbitration Tribunal and costs of the arbitration facilities shall be periodically billed to and paid in equal proportions by the Parties to the arbitration as the Arbitration proceeds. The Arbitration Tribunal and any Appeal Arbitration Tribunal shall have the power to award costs, including the fees and expenses of the Arbitration Tribunal and costs of the arbitration facilities, and the legal fees of an opposing Dispute Party in the arbitration upon hearing submissions by any Dispute Party requesting same, and any responding submissions from the other Dispute Party. All of these costs shall be awarded to the successful party on a full indemnity basis, as such term or equivalent amended term is used in the Rules of Civil Procedure.

11. Interest – The Arbitration Tribunal shall award pre- and post-judgment interest on any damages awarded to the successful party in accordance with the Courts of Justice Act (Ontario).

12. Notices – All Notices and all other documents required or permitted by this Schedule to be given by any Dispute Party to the arbitration to the other shall be given in accordance with Section 8.9 of the Agreement. All Notices and all other documents required or permitted by this Schedule to be given by any Dispute Party to the arbitration to the Arbitration Tribunal shall be given in accordance with the Arbitration Tribunal’s instructions.

13. Confidentiality – The existence of the arbitration and any element of the arbitration (including an appeal) shall be confidential. Confidential information regarding the property, business or affairs of any Dispute Party that is disclosed during the arbitration shall be kept confidential by the Arbitration Tribunal, any Appeal Arbitration Tribunal and all other Dispute Parties.