Arbitration – An Option For Civil Trial Delays
-by Joseph J. Sullivan, C.S., Q.Arb., Sullivan Mediations, Sullivan Arbitrations
With the ongoing delays in Ontario’s civil courts due to COVID-19, private arbitration can be a viable option; especially in cases where the parties can narrow the litigation issues to one or two disputes.
Arbitrations are usually confidential and private: the hearing evidence and the arbitration decision are not made public, which distinguishes this process from the civil court system. Certain arbitration decisions must be made public as a requirement of statute or regulation. An example would be intercompany insurance company disputes as to which insurer is responsible to pay accident benefits (Ont. Reg. 283/95, s.8, made under the Insurance Act).
Many times, the parties will agree on an arbitrator to render a binding decision on a dispute and sometimes the arbitrator is “preselected” in a commercial agreement.
The parties will contact the proposed arbitrator and she or he decides whether to accept the appointment; it’s important here that conflict searches are done by the arbitrator at the outset to make sure she or he can act.
Next, an Arbitration Agreement is prepared for the parties and the arbitrator to sign. A non-exhaustive list of items to be considered for inclusion in Arbitration Agreements is as follows:
(a) What are the precise disputes for which an arbitral decision is sought?
(b) Are there any preliminary issues with which to deal (such as point of law)?
(c) Where and how will the arbitration take place (location, in writing or oral testimony)?
(d) Does the arbitrator have the authority to order costs between the parties and on what basis or will the parties bear their own costs?
(e) Who will pay for the arbitrator’s fees, venue and other disbursements?
(f) Do the parties agree to give full documentary disclosure relevant to the issues in dispute?
(g) Do the parties agree to attempt to agree to an Agreed Statement of Facts (ASF) and Joint Exhibit Book?
(h) Have the parties agreed upon appeal rights (issues of law only or mixed fact and law)?
One strong advantage of arbitration is the parties’ ability to fashion their own process by narrowing the issues, agreeing on many of the facts and documents.
This can really be a time and costs’ saver. For example, in a motor vehicle accident case, the parties might agree on damages, but really want a liability dispute sent for a binding decision.
The parties can expect an arbitration result to be rendered quickly in the arbitrator selection process, the parties can choose a person they believe is knowledgeable, trustworthy and has early availability to hear the matter.
The downside of arbitration is that someone will get stuck with the arbitrator’s account at the end of the process.
Sometimes, this may be worth the expense as the arbitral process is more streamlined and quicker.
In deciding whether to proceed to Arbitration, counsel will be aware that the Arbitration Act S.O. 1991 applies and these provisions largely encourage a self design of the process by the parties.
Those considering arbitrations can also be assured of the integrity of the process. Sections 14, 15 and 16 of the Statutory Procedures Act (protection of witnesses, evidence at hearings, notice of facts and opinions) apply to Ontario arbitrations by virtue of s.21 of the Arbitrations Act S.O. 1991.
ABOUT THE AUTHOR
Joseph operates Sullivan Mediations in Hamilton, Ontario and mediates across Ontario. He also is a Qualified Arbitrator as recognized by the ADR Institute of Canada.