Nov 252018

Halls of Justice


‘This is a court of law, young man, not a court of justice” – Oliver Wendell Holmes, Jr.

The scales of justice symbolize the court’s consideration of each side of every case. Fairness and public faith in the judicial system require that balance. If courts are perceived as hearing only one side of a dispute, a reasonable apprehension of bias may arise. At best, that may result in a decision being set aside or appealed; at worst, it undermines public confidence.

The rule for all communications with the court is that notice must be provided to the opposing party unless a valid exception applies. The Alberta Court of Appeal recently stated in Secure Group Inc v Tiger Calcium Services Inc, 2017 ABCA 316 that “Applications without notice (formerly ex parte applications) are extraordinary since it is a fundamental principle that parties have a right to be heard before their rights are negatively affected” (at para 41). The Supreme Court of Canada noted that ‘The circumstances in which a court will accept submissions ex parte are exceptional and limited to those situations in which the delay in notice would result in harm or where there is a fear that the other party will act improperly or irrevocably if notice were given” (Ruby v Canada, 2002 SCC 75 at para 25).

Extraordinary. Exceptional. Limited. These are the words which the courts use to describe applications without notice.

And yet. Calls to practice advisors about applications made without notice are rising. Many of those calls are prompted by opposing lawyers writing to judges. Those communications may constitute ex parte appearances as seeking a remedy without notice in correspondence may have the same effect as an ex parte hearing: an application without notice is not limited to a courtroom hearing.

The problem is not new. Former Practice Advisor, Barry Vogel, Q.C., advised the profession in 1997 that it is “improper to contact a judge … even to arrange an appointment [or] write a letter… no matter what the subject”.

The Code of Conduct unequivocally states: A lawyer must not communicate with a tribunal respecting a matter unless the other parties to the matter, or their counsel, are present or have had a reasonable prior notice, or unless the circumstances are exceptional and are disclosed fully and completely to the court. (Rule 5.1-1, Commentary para 6).

Note that the Code of Conduct refers to “tribunal” not “court”. “Tribunal” includes courts, administrative bodies, mediators and arbitrators. The same principles apply to these decision-makers (see Hunt v The Owners, Strata Plan LMS 2556, 2018 BCCA 159)

If your situation does not justify an ex parte application or communication, but you need to communicate with a court or other decision-maker, it is unethical simply to send a letter. You must give the opposing party or their lawyer a ‘reasonable opportunity to review, comment on and respond to the communication. Send a draft to the other side (preferably after having a colleague review it if it is a contentious matter), indicate a reasonable deadline by which you require their comments, and indicate that you will be sending the correspondence “as is” unless you receive their response by that reasonable deadline. What is reasonable will depend on the circumstances. Advise the court that you have provided your correspondence in draft to the other side. If the opposing side has reasonable comments, you may choose to include them, or if the comments are lengthy or objectionable, you may indicate to that party that they should send their own correspondence (to be reviewed by you in advance, of course). Even better, particularly if the matter is contentious, consider whether correspondence is the appropriate way to proceed. Consider whether you should proceed in court on notice where a transcript of the proceeding is prepared, both parties can make submissions, and the court can be assured its own questions are answered.

Remembering that communications may be ex parte appearances and allowing the opposing party to provide input in the communication ensures fairness. It ensures that the court has heard from both sides and can make a decision which takes all relevant interests into account. Lawyers who follow their ethical obligations when communicating with tribunals ensure that courts of law are also courts of justice.

Elizabeth Aspinall

ELIZABETH ASPINALL is a Practice Advisor and the Equity Ombudsperson at the Law Society of Alberta. Prior to joining the Law Society, she practiced at JSS Barristers in Calgary. Elizabeth is a member of the CBA Alberta Editorial and Equality, Diversity & Inclusion Committees.

See original article in Law Review:

 Posted by at 3:10 pm
Oct 292018
Ben Kormos - Walsh Law

Ben Kormos – Walsh Law

Verbal Arbitration Agreement Valid

Although the arbitration agreement was not in writing, the court gave significant weight to the parties’ intention to resolve their dispute through arbitration. Furthermore, it would not be in keeping with the ordinary rues of contract law to allow one party to unilaterally withdraw from its obligations under such an agreement, where such an option was not contracted for. In this case, the contractor provided glazing to construction projects, and it entered into negotiations with a developer to determine the requirements for the window wall systems to be used in the construction of a condominium project. The contractor provided a quote of $2,997,500 plus HST, which the developer accepted.

The developer took the position that the contractor was required to provide guardrails and privacy screens for the project, which were not included in the contractor’s quote, and which it did not do. The parties agreed to arbitration. Although a tolling agreement was signed in May 2017 to preserve the limitation period, a fully executed tolling agreement was not received by the contractor due to a computer email issue. This led to the contractor issuing a statement of claim.

The statement of claim dealt with the same subject matter as the contemplated arbitration, adding the developer’s directors, given that it was a breach of trust action arising from the construction project. The contractor applied for an order requiring the developer to submit to arbitration the issue of whether contractor was required to supply and install guardrails and privacy screens.

The parties initially agreed to arbitrate, but delays occurred, and the arbitration was rescheduled. An arbitration agreement as defined by the Arbitration Act, 1991 existed, although not in writing. The parties agreed upon the essential terms of the arbitration with the exception of the scope of discovery. The Act gave great weight to the parties’ intentions to resolve disputes through arbitration, and the courts were reluctant to intervene in arbitral proceedings.

The most expeditious way of dealing with the railing issue was the method that the parties originally agreed upon, arbitration, and that might put an end to any further disputes between the parties. The application judge recognized that allowing a court action in an arbitration to proceed when the claims were overlapping might result in an unnecessary duplication of resources. In the event that it became an issue, the parties were not precluded from applying for a stay of the litigation pending the arbitration hearing:

Zenith Aluminum Systems Ltd. v. 2335945 Ontario Inc., 2018 Carswell Ont. 11396, 2018 ONSC 4199 (Ont. S.C.J.).

Submitted by: Ben Kormos

 Posted by at 3:03 am

The Power of Settlement Privilage

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Sep 172014

What are the rules around confidentiality especially when returning to the pre-settlement stage or for enforcement of the settlement?

Alternative dispute resolutions can and often do contain vast amounts of information and typically in mediation this is thought to be privileged – unavailable for use to advance one’s cause outside the mediation.  In the recent decision of the Supreme Court of Canada – Union Carbide Canada Inc. v. Bombardier Inc. the confidentiality clause in the mediation agreement did not necessarily supplant settlement privileges (and its common law exceptions).

Perhaps the best place to ensure clarity about the availability of information revealed during an abortive or disputed mediation settlement is in the originating mediation agreement.

In an article by M. Killoran, QC & Elizabeth Coyle entitled Settlement Privilege – Clearly Contracting Out, the authors advance that council involved in the dispute should “address their minds to how settlement agreements reached can be relied upon by their clients in the event of a disagreement as to the meaning of the settlement terms.”

Maureen Kiloran


Elizabeth Coyle

 Posted by at 1:37 pm

When does FOIP penetrate a mediated decision?

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Sep 152014

Why a good understanding of Freedom of Information and Protection of Privacy (FOIP) is  necessary in mediated decisions.

Mediator Dave Evans has reviewed City of Calgary v. Imperial Oil Ltd. regarding the impact of Freedom of Information Protocol (FOIP).

In a recent decision the Alberta Court of Appeal has confirmed that mediation may not be penetrated by FOIP and must remain confidential.

The action was originally initiated by the City of Calgary against the Environmental Appeals Board and Imperial Oil around the petroleum cleanup of Lynwood Ridge some 9 years ago when a mediated settlement was agreed upon for the impacted parts of the Community. At the time, the City declined to attend the mediation by later determined that they wished to see the agreement – via a Queen’s Bench action.

The Queen’s Bench decision confirmed confidentiality and Calgary appealed to the Supreme Court. The Supreme Court turned the matter back to the Alberta Court of Appeal where in a recent 28 page decision, confidentiality was upheld.

The learning here is that preparation and execution for confidentiality should be emphasized by the mediator.  And it should be fully understood by the parties.

In this era of what I call “enhanced transparency”, I see more attempts by disgruntled parties who turn to FOIP to find out what happened in mediation, or a public release of a settlement.

A good understanding of Privacy Legislation and the FOIP process is needed to preserve professional standing in Dispute Resolution practice.


Dave Evans PhD specializes in strategic planning and risk management applications for construction, energy and mining projects. This includes environmental assessment facilitation and conflict resolution on behalf of Senior Management, Operations Teams, Government, First Nations etc.

Dave, who is currently a Senior Partner with CSC Project Management Services in Calgary, is available for Commercial Conflict Resolutions, Sustainable Development Valuation assessments, and Multi-stakeholder Facilitations for project proponents.


 Posted by at 2:54 pm
Aug 032014

There can be little doubt that justice delayed is justice denied.

When conflict arises the wise course of action is to seek a resolution and not bury the problem because when history repeats itself usually the price goes up.

Mediation and Arbitration Associates of Canada is a small Western based consulting firm that can help in the resolution of conflict, almost regardless of its size or significance to the parties. This bold promise comes from years of experience by the members of our team, some of whom are available to collaborate where the situation warrants.

If you are like most and concerned about the cost of this form of dispute resolution there is some consolation. In Canada we don’t pay for the judiciary to hear and decide a case but we do have to wait for our day in court. The delay is just the beginning of a complex system which often seems to be designed to seek out every factual nuance regardless of the cost of time and money.

When delay is not an option, possibly because of the business interactions that must continue in the meantime, Alternate Dispute Resolution is the answer. ADR includes an array of services from the court like arbitration to consenting mediation to resolution seeking processes like talking circles and community based animation. The parties to a dispute have many options. MAAOC is skilled at helping the parties find that course of action which works best for their situation.

Often the road is not clear and so we have created a short summary entitled where to start.

A short summary of where to start includes contacting one of the Associates (check the list for the one most suitable) and discussing the nature of the dispute. Don’t delay based on which Associate to contact, we are interested in providing the best person to achieve the desired resolution. When you are working with the proper person for your issue you will be informed about important facts like the availability of the Associate, their cost and typically what all is involved in an agreement for the provision of services.

It is important enough to warrant repeating here: Taking the first step towards resolution is often the most difficult part in a dispute. Give us a call and let us help make that journey a smooth one.

 Posted by at 4:30 am

Preparing to Negotiate – Ten Tips for the Strategic Mediation Advocate

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Jul 022014

Successful advocates strategically assess and plan each negotiation and mediation. This includes understanding all relevant aspects of your case, setting goals and objectives as well as planning a strategy and backup plan to achieve those goals. This article provides a list of practical questions to be considered in preparing to participate effectively in direct negotiation or a mediated settlement discussion.

By: Anne E. Grant, LL.B, LL.M (ADR), C.Med

1. What are the issues in dispute? – Advocates should define the dispute in clear, concise and
straightforward language. Likewise, any issues in dispute which require further information
should be noted. Issues may be organized as procedural, psychological or substantive in nature.

2. Who are the parties? – When considering the appropriate parties in the ADR session, consider
who influences each party – a spouse, children, or any trusted friends or financial advisors.
These individuals may be influential in terms of reaching and/or reviewing any settlement.
Institutional representatives themselves may have senior partners or work within teams that will
influence strategy, approach and reaching agreement. Bear in mind that an individual absent
from the ADR session can still be influencing the parties at the table. Ideally all relevant parties
are present or accessible.

3. What are the facts relevant to resolving the problem? – Advocates should possess a
thorough, working knowledge of the chronology of the dispute as well as the salient facts relevant
to settlement discussions. The areas of discussion in a negotiation or mediation are not limited
to the jurisdiction of a court, so advocates need to consider any facts that will persuade the other
side to sympathize with their client’s viewpoint.

4. Is there any additional information or documentation that the other side does not have that
you could share either with the other parties and/or with the mediator? – Disputes are
dynamic and circumstances continue to change. The sharing of information can have a
persuasive effect on the views of the other side and can provide the impetus to consider different
settlement options. In considering the evidence to be submitted during the session, think about
whether there is any other information (i.e. costings, changes in circumstances, etc.) that will
influence the other party’s decision to reach agreement. Sharing information is also a way of
expressing commitment to participate in the process in good faith and to resolving the problem.
Consider data regarding your client’s out of pocket expenses and whether you can provide
documentation to substantiate any damages at this time.

5. What are the positions of the various parties? – While interest-based negotiation will ideally
maximize results, it is always prudent to consider the positions, rights and entitlements of all the
parties. The strategic advocate can argue their clients case utilizing either a positional or interest
based model of negotiation.

6. What are the interests/needs/concerns of all the parties? – Interests are the basis for anyindividual action. Interests may be personal, professional, economic, psychological, business
considerations, etc. Principled negotiation is premised on considering the underlying motivations,
concerns and needs of all the parties to form a foundation for a mutually-acceptable solution.
Remember that representatives and advocates may also have interests or hidden agendas that
are propelling the dispute. The strategic advocate needs to consider the interests of those parties
who are not at the table, but may influence any terms of settlement.

7. What are the alternatives to a negotiated/mediated outcome? – Part of any strategic
negotiation analysis is a consideration of the alternatives. This reality check should be
canvassed with the client in advance so that the parties are clear as to what possible results or
process steps are available should negotiations flounder.

8. What options are available to resolve the situation? – Prior to any negotiation or mediation,
possible options for resolution should be canvassed with the client. This investigation prepares
the parties for settlement and allows the creative brainstorming to take place in advance of the
meeting. Ask your client to be innovative and to reverse his or her assumptions and roles. In a
negotiated or mediated settlement, many ideas can be transformed into settlement options that
would be outside the jurisdiction of a trier of fact.

9. Is there anything that should be considered in finalizing an agreement? – The parties may,
at times, require outside authorization in respect of a proposed resolution. For example, an
insurance company may require a second signature or authorization from a higher level in some
situations. A non-profit board may require the ratification of its members. Time constraints can
be a consideration in finalizing an agreement as well as the impact of governing legislation.

10. Can you anticipate any challenges with regard to the implementation of the desired
agreement? – Any settlement implementation problems should be considered during the
preparatory stage. While confidentiality is a hallmark of the mediation process, some settlement
options may require communicating the outcome to other parties. For example, in a workplace
mediation where two key staff members have reached a mediated settlement, Human Resources
or senior management may have an interest in knowing the outcome. Likewise where the
organization is fulfilling a statutory requirement to maintain a harassment free workplace, the
outcome of a mediated settlement of a bullying complaint may need to be documented/reported
to demonstrate compliance.

Anne E. Grant has practiced as a full time mediator and ADR practitioner since 1994. She is President of
the ADRIO and has held the national designation of Chartered Mediator since 1995. Her practice
includes mediation of civil disputes, workplace interventions as well as facilitation of multiparty public
policy consensus building.

Full details at:

 Posted by at 2:40 pm

Whose Arbitration is it anyway? The Evolving Role of the Arbitrator in Determining Commercial Arbitration Procedure

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Jun 292014

Whose arbitration is it anyway? Reflections on the role of the arbitrator, counsel and the parties in
expeditiously resolving disputes.

by J. Brian Casey

A fundamental attribute of commercial arbitration is party autonomy; the ability of the parties to agree on what will be arbitrated, the choice of arbitrator, and the procedure to be followed. The concept of party autonomy sometimes breaks down when it presumes there is party agreement on procedure. Where an ad hoc procedure is used instead of a set of arbitration rules, there is no obvious agreed procedure and the question becomes what procedure did the parties anticipate when they agreed to arbitrate.

In purely domestic arbitrations, there may be a large discrepancy between the parties as to how they expect any arbitration will be conducted. In international arbitration, there may be even more of a disconnect, depending upon the parties’ nationality, legal traditions and arbitration experience.

Generally, parties or counsel more experienced in arbitration are less likely to expect a procedure that follows local court rules. Less experienced counsel, however, may well expect that the arbitration will mirror local court procedure. Enter the arbitrator, who will have his or her own view as to how the arbitration should proceed.

It has been said that there are three types of arbitrators: the referee, the dictator and the active case manager.1

The referee arbitrator does not get involved with procedure at all, unless there is a real fight between counsel. He or she is content to leave all procedural issues and the timetable for the arbitration to counsel and the parties. This is the “call me if you need me” approach.

The dictator is the opposite. He or she believes in not only the efficacy but the purity of the arbitral process and is concerned that if matters are left to counsel, they will deliver an arbitration procedure that completely negates the objectives of speed, efficiency and cost effectiveness. The dictator arbitrator is particularly suspicious of so called “name” or “good” counsel who, if possible, will attempt to game the system to gain for their client any advantage that they possibly can. The dictator arbitrator will, regardless of the views of counsel, attempt to impose an arbitral process that is true to his or her pure view of what arbitration should be.

The case manager arbitrator is between these two extremes and is where we appear to be in Canada in the majority of cases. The case manager arbitrator will not leave it to the parties and counsel to run the arbitration, but will recognize the ultimate right of the parties to agree on the procedure and timetable.

The case manager arbitrator’s job is to make sure that the parties understand that the process they have agreed to carries with it the obligation to conduct this adversarial but consensual process in good faith and with efficiency. He or she will remind the parties that this is not a coercive court ordered process, but an agreed upon contractual process. Specifically, the case manager arbitrator will make it clear that local court rules have no application to the arbitration unless both sides agree.

The case manager arbitrator recognizes the obligation to push back and challenge the parties, or more likely their counsel, when it appears the procedure sought to be adopted is not necessary.  In many cases, the case management arbitrator is up against a litigation business model that has been in place for years. Canadian domestic litigation is a “back-end load” model where lawyers are moderately engaged in a case over a two to four year period, with periodic bursts of activity, while working towards the ultimate trial. Each case is staggered to avoid having two cases culminate at the same time.

Like circus jugglers, the lawyer keeps each plate spinning just enough to ensure it doesn’t fall. Arbitration on the other hand, in order to deliver on the promise of an expeditious and cost effective procedure, demands a front-end load and a measure of continued effort to have the case over as soon as possible and usually within 12 months. To achieve this, the case manager arbitrator moves the parties along where possible, while recognizing this may well be going against the lawyers’ established business model.

If the parties (or more likely their counsel) are adamant that they are going to adopt a litigation style procedure, then the arbitrator is bound to acquiesce. At the end of the day it is the parties’ arbitration, but this should not stop the arbitrator from making suggestions and, if necessary, pointed comments where he or she believes another procedure might be more appropriate.

If the parties are going to the extra expense of hiring their own adjudicator, it makes sense that they get their monies’ worth, which means input from the arbitrator at each step of the procedure as to how the dispute can be expeditiously resolved.

Mr. Casey is an arbitrator at Bay Street Chambers, Toronto. His full bio can be found at:


1 First posited by Albert Bates, vice chair of the Construction Group of Duane Morris, LLP

 Posted by at 10:18 pm