IIROC is undergoing a review of their arbitration program (last reviewed in 2011), which requires dealers to participate in binding arbitration at the request of a client. The consultation is in response to 17 recommendations made by an independent working group, which range from changes that can immediately be put in place to those changes that will require further public consultation. IIROC proposes to maintain the program alongside OBSI’s dispute resolution services and the availability of litigation as avenues of redress for clients. As the arbitration program is intended to be an alternative to litigation, focusing on complex and large claims, IIROC is considering having the program available only for claims above OBSI’s claim threshold (except in Quebec). Recommendations for immediate implementation include revising program materials to use plain language and increase public awareness of the program, as well as allowing parties to pick their own arbitrator and establishing shorter time lines for certain case resolutions. A pilot program is suggested for certain procedural changes, including case management and mandatory mediation. Public consultation is suggested for items such as the potential publication of arbitration decisions and an increased award limit.
Overview of the Council’s Comments:
The Council has provided general comments on the Consultation regarding the IIROC Arbitration Program. The Council is generally supportive of the recommendations set out, including:
- greater transparency on the functioning of the Program going forward, including accessibility, costs, and procedures.
- more transparency on the implementation of the Program would help ensure it is serving its purpose
- availability of data relied on in forming the WG Recommendations.
- regular public reporting of how many claims fall into each of the tiers.
- an Annual Report on the functioning of the Program, as well as a standard review period instituted for the Program, such that evaluations can be done on a regular instead of an ad hoc basis.
The Council is in favour of the greater transparency surrounding the roster of arbitrators proposed in the WG Recommendations. It also notes the 2-year limitation period to be at the very low end of an admittedly wide spectrum of limitation periods across Canada. Further, the Council suggests that a renewed review of the Program may be necessary following if and when OBSI receives binding authority.