fmc-law.com RSS Feeds - Publications - Alternative Dispute Resolutionhttp://www.fmc-law.com/upload_net/rss/en/Alternative_Dispute_Resolution.xmlThu, 31 May 2012 10:01:06 GMTen-us5The Supreme Court of Canada (“SCC”) recently considered whether a party had waived its right to rely on contractual arbitration and forum selection clauses by defending an Ontario action on the merits. In Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., 2012 SCC 9, the SCC unanimously affirmed an Ontario Court of Appeal ruling that a defence on the merits did not amount to a waiver of contractual arbitration and forum selection clauses. In doing so, the Court reinforced Canada’s status as an arbitration friendly jurisdiction that will give strong deference to arbitration and choice of forum clauses in commercial agreements. However, the decision leaves considerable uncertainty about when a defence or delay in moving might amount to a waiver of such clauses in other circumstances. The SCC decision was brief and focused on the narrow issue of whether the Ontario Rules of Civil Procedure permitted dismissal of the action based on the arbitration and forum selection clauses, notwithstanding the delivery of a statement of defence which specifically pleaded these clauses. The SCC did not consider when a “strong cause” might exist to displace contractual arbitration and forum selection clauses nor did it address the doctrine of waiver by attornment. The SCC held that the relevant rules did not limit the time during which a motion to dismiss the action could be brought. In effect, the lack of such restriction was held to oust any inferred waiver of the arbitration and choice of forum clauses that might exist at common law by virtue of defending. In this context, the SCC found that a statement of defence that specifically pleads a foreign forum selection clause does not amount to consent that the courts of Ontario assume jurisdiction so as to preclude consideration of the merits of whether to enforce the clause. Accordingly, the appeal was dismissed, ending the Ontario action. Read more by clicking the download button.http://www.fmc-law.com/Publications/0512_Focus_on_Alternative_Dispute_Resolution.aspxThu, 10 May 2012 06:00:00 GMThttp://www.fmc-law.com/Publications/0512_Focus_on_Alternative_Dispute_Resolution.aspxIn Jones v. Tsige, 2012 ONCA 32, the Court of Appeal for Ontario issued the first definitive statement from a Canadian appellate court that there is a common law right of action for intrusion upon seclusion, or invasion of personal privacy. The elements of the new tort are defined by reference to the Restatement (Second) of Torts (2010), following the approach taken by American and Australian courts. Read more by clicking the download button.http://www.fmc-law.com/Publications/0412_Focus_on_Litigation_ADR.aspxWed, 25 Apr 2012 06:00:00 GMThttp://www.fmc-law.com/Publications/0412_Focus_on_Litigation_ADR.aspxIn order for an option to renew or extend to be enforceable (as opposed to being a mere “agreement to agree”, which is unenforceable at law), there are two required elements: (1) a formula or reference standard to fix the new rent; and (2) procedural machinery to determine the new rent in the event that the parties don’t agree (i.e. an ADR process). The formula or reference standard should specify the valuation date for the rent determination, whether it is for a restricted or unrestricted use (e.g. “market rent for a financial institution” vs. “market rent”), and any geographic restrictions (e.g. the plaza/complex, within a particular radius of the subject location, within a specified city). This paper was written for the Law Society of Upper Canada's Six-Minute Commercial Leasing Lawyer program, Feb 15, 2012. Read more by clicking the download button.http://www.fmc-law.com/Publications/0212_Simplifying_Arbitration_Process_Renewal_Extension_Rent.aspxThu, 16 Feb 2012 07:00:00 GMThttp://www.fmc-law.com/Publications/0212_Simplifying_Arbitration_Process_Renewal_Extension_Rent.aspxIn this issue of Focus on Alternative Dispute Resolution, the following topic is discussed: The New ICC Arbitration Rules – What You Need to Know On January 1, 2012, the International Chambers of Commerce’s newly revised Rules of Arbitration (the “2012 ICC Rules”) took effect. The new rules apply to all ICC arbitrations going forward, unless the parties agree to adopt the rules that were in effect when their arbitration agreement was executed. Read more by clicking the download button.http://www.fmc-law.com/Publications/0112_Focus_On_ADR.aspxTue, 24 Jan 2012 07:00:00 GMThttp://www.fmc-law.com/Publications/0112_Focus_On_ADR.aspxNotwithstanding the growth of alternative fee arrangements, legal costs remain a significant challenge for companies involved in commercial disputes in Canada. Recent reforms in provinces such as Ontario have helped reduce cost pressures in smaller disputes by increasing the monetary jurisdiction of lower courts and reducing pre-trial procedures in cases of modest value - those less than $100,000. Other reforms have introduced the concept of proportionality with respect to document production obligations, discovery rights, and cost awards. Further, in Ontario, the Rules of Civil Procedure have expressly adopted the Sedona Principles regarding electronic discovery. Republished with permission. Read more by clicking the download button.http://www.fmc-law.com/Publications/1111_Financier_Worldwide_Schafler.aspxWed, 23 Nov 2011 07:00:00 GMThttp://www.fmc-law.com/Publications/1111_Financier_Worldwide_Schafler.aspxCommercial arbitration – both domestic and international – is an established and frequently employed dispute resolution mechanism in Canada, and one that is legislatively protected. With respect to international commercial arbitration in particular, the accepted culture and approach is consistent with the 1985 UNCITRAL Model Law on International Commercial Arbitration (the Model Law); that is to say, the courts take a very non-interventionist approach. There are some limits to this, though, which we will discuss. We begin this chapter with a brief background on Canadian arbitration legislation. We then discuss Seidel v TELUS Communications Inc and Yugraneft Corp v Rexx Management Corp, the Supreme Court of Canada’s most recent decisions that analyse and explain how the Canadian justice system and private arbitration processes co-exist. TELUS deals with the relationship between consumer protection legislation, class actions and mandatory arbitration clauses, and Yugraneft with the interaction between local Canadian limitation periods and the enforcement of foreign arbitral awards in Canada. These decisions significantly add to the Supreme Court’s body of case law on arbitration in Canada and provide clarity to users of commercial arbitration. Republished with permission. Read more by clicking the download button.http://www.fmc-law.com/Publications/1111_Commercial_Arbitration_and_Supreme_Court_Schafler.aspxTue, 08 Nov 2011 07:00:00 GMThttp://www.fmc-law.com/Publications/1111_Commercial_Arbitration_and_Supreme_Court_Schafler.aspxIn this article, Michael Schafler and Soloman Lam discuss Mexico v Cargill Incorporated, a decision of the Ontario Court of Appeal that addressed the appropriate standard of review for jurisdictional challenges to North American Free Trade Agreement (NAFTA) Chapter 11 arbitral decisions. The court held that when determining whether a NAFTA arbitration tribunal has exceeded its jurisdiction, the standard to apply is correctness. The case involved a dispute over the import of high-fructose corn syrup into Mexico from the United States. With the introduction of NAFTA in 1994, Cargill, a US producer of high-fructose corn syrup, implemented plans to sell its product in Mexico through a wholly owned Mexican subsidiary, CdM. Cargill expanded its facilities in the United States, while CdM built a new distribution centre in Tula. Republished with permission from International Law Office. Read more by clicking the download button.http://www.fmc-law.com/Publications/0212_Appeal_court_decides_standards_review_arising_from_NAFTA_arbitral_awards.aspxTue, 25 Oct 2011 06:00:00 GMThttp://www.fmc-law.com/Publications/0212_Appeal_court_decides_standards_review_arising_from_NAFTA_arbitral_awards.aspxFor an option to renew or extend to be enforceable (as opposed to being a mere “agreement to agree,” which is unenforceable at law), the option must include both a formula or reference standard and machinery to determine the rent during the renewal/extension term. Binding arbitration is the typical “machinery” used to determine the rent during the extension term in the event that negotiations between the landlord and tenant fail to produce an agreement within a stipulated period. Reprinted by permission of Carswell, a division of Thomson Reuters Canada Limited. Read more by clicking the download button.http://www.fmc-law.com/Publications/1211_Binding_arbitration_common_determining_renewal.aspxThu, 01 Sep 2011 06:00:00 GMThttp://www.fmc-law.com/Publications/1211_Binding_arbitration_common_determining_renewal.aspxIn this article Michael Schafler discusses the decision released on March 18, 2011 by the Supreme Court of Canada in Seidel v. TELUS Communications Inc. 2011 SCC 15. In its decision the Supreme Court of Canada held, in a split 5-4 ruling, that in appropriate circumstances an arbitration clause in a consumer context will not oust a class action.  The decision is particularly noteworthy for the rigorous dissenting reasons and is a must read for anyone who is engaged in class action or arbitration work. First published in Possibilities, the CBA National ADR Section Newsletter, July 2011. This article may also be obtained on the CBA website, at http://www.cba.org/cba/newsletters-sections/pdf/2011-06-ADR.pdf . Read more by clicking the download button.http://www.fmc-law.com/Publications/Schafler_Michael_Consumer_arbitration_clauses_class_actions_Supreme%20Court.aspxFri, 01 Jul 2011 06:00:00 GMThttp://www.fmc-law.com/Publications/Schafler_Michael_Consumer_arbitration_clauses_class_actions_Supreme%20Court.aspxA Q&A guide to dispute resolution in Canada. In this publication, FMC's Michael Schafler and John Lorn McDougall give a structured overview of the key practical issues including, for example, court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. Key Content Includes: Main dispute resolution methods Court litigation - general Fees and funding Court proceedings Interim remedies Final remedies Evidence Appeals Class actions Costs Enforcement of a local judgment Cross-border litigation Alternative dispute resolution Proposals for reform Contributor details Read more by clicking the download button.http://www.fmc-law.com/Publications/0611_Practical_Law_Company_Dispute_Handbood_Schafler.aspxMon, 13 Jun 2011 06:00:00 GMThttp://www.fmc-law.com/Publications/0611_Practical_Law_Company_Dispute_Handbood_Schafler.aspx