Arbitrators have the discretion to accept or reject late evidence. When deciding on this, they must listen to both parties and consider whether their decision would cause undue prejudice or result in a breach of procedural fairness to either party. An arbitrator may also consider additional factors, including but not limited to the following:
- How late is the evidence? An arbitrator is more likely to accept evidence that is one day late than evidence that is one week late.
- Why is the evidence late? Was it unavailable in advance of the evidence deadline? If something outside of a party’s control prevented the evidence from being submitted on time, the arbitrator may consider that a valid reason for submitting the evidence late.
- How much late evidence is there? One or two documents are more likely to be accepted than a large volume of evidence.
- How would accepting the late evidence affect the other party? Did the other party have adequate time to respond to the late evidence?
- How would not accepting the late evidence affect the party trying to submit it? The more relevant and important the evidence, the more prejudice is suffered by the party who needs to rely on it, if it is not accepted.
If an arbitrator decides to accept late evidence, the hearing may be adjourned to allow the opposing party to review the evidence and prepare a defence.