In the aftermath of the January 2019 Ontario Court of Appeal decision, in Heller v. Uber Technologies Inc., arbitration may have been placed under a judicial microscope as never before. In that decision, the Court of Appeal examined a lengthy arbitration agreement involving alleged employment issues, and tossed it out in part, based on unconscionability. Heller v. Uber Technologies Inc. may well become the spectre that haunts private arbitration as parties move reflexively toward arbitration. So the issue for lawyers representing businesses is how they advise their clients about the use of arbitration where there is an obvious power imbalance. And the issue for arbitrators centres on their duty to provide early warning of possible trouble.
While arbitrators have a variety of academic and practical backgrounds, many are litigation lawyers. And some wear two hats; carrying on civil litigation and arbitration practices simultaneously. At times, arbitrators act as counsel in wholly unrelated actions for one of the parties to an arbitration while arbitrating. Given the statutory duties that apply with respect to fairness, impartiality and lack of bias, the two fundamental issues they face are compliance with those duties where there are any conflicts of interest and the effect of those conflicts on the legitimacy of arbitration.
While the stated purpose of civil pretrials is settlement, our Rules of Civil Procedure provide a process that has a lot to do with litigation and little to do with settlement. Perhaps it’s no accident that, in the Superior Courts of Justice, the process is referred to as a “pre-trial” rather than as a “settlement conference” as it is in small claims court. This raises the question of whether a settlement approach that is centred on debating facts and legal issues limits the opportunities for settlement. Perhaps it’s time to introduce ADR principles into pretrial conferences.
At the very time that the volume of litigation in our largest centres is growing, our courts face a crippling shortage of judges and infrastructure funding. We need to ask whether now is the time for major procedural changes that would give power to our courts to rationalize and speed up the flow of civil litigation. The changes I am suggesting would assist both the courts and the parties to reach resolution earlier and at less cost by giving more power to the bench.
Some estates lawyers are encouraging parents and children to discuss and negotiate their differences in the hopes of avoiding or narrowing conflict before wills are signed.