2019 Annual Conference Minutes
Date: December 9, 2019
Time: 9:00 a.m. to 12:30 p.m.
Location: Toronto, Ontario
The 2019 Annual Conference featured a discussion of six hypothetical situations that raise practical and ethical issues arbitrators may encounter. Attendees received 2 hours of Professionalism Content for Law Society of Ontario Continuing Professional Development purposes. The situations and discussions are outlined below.
- You are the arbitrator in a wrongful dismissal case. The plaintiff employee is self-represented and the defendant employer is represented by counsel. Two weeks before the hearing, you receive a voice message from the plaintiff. In his message, he says that he is concerned about what to do in the hearing (since he is not a lawyer) and asks you to get back to him with any tips or suggestions. What should you do?
Arbitrators cannot respond to the voice message directly to only the self-represented party. Communication from the arbitrator must be with both parties. The parties cannot dictate that there be unilateral communication. The arbitrator could email the parties to advise them that there will be no ex parte communications with the arbitrator, and can set up a conference call.
At the conference call, the arbitrator can ask the other lawyer to make suggestions to the self-represented person. The arbitrator can also suggest the person get assistance. The arbitrator can do a general overview of the process.
What if the plaintiff excuses himself from the hearing for a brief adjournment because he says he finds this process stressful and doesn’t return for 30 minutes? Two hours?
Most arbitrators would grant a break subject to what the other side says. Where there is a history of the party causing delay, arbitrators would be less lenient in permitting a long break. It is important for the arbitrator to make clear how long the break will be.
If the self-represented party returns after the break and states that the process is too stressful, the arbitrator may ask the self-represented Claimant whether they want to proceed with the claim. If the self-represented party is the defendant, the Claimant has a right to bring the claim and the claim must proceed. Arbitrators can advise in such situations that they will accommodate breaks if required. Some arbitrators would have discussions with the parties about how to structure the process for it to be less stressful for the self-represented party.
In the event that a self-represented party realizes during the arbitration that they need a lawyer and asks for time to find one, arbitrators will usually grant the adjournment subject to dealing with costs to the other side. If the arbitrator does not grant time for the party to find a lawyer and the arbitration proceeds, there may be grounds for judicial review.
If the arbitrator grants an adjournment and two hours later the self-represented party cannot be found, the arbitrator should try to contact the self-represented party to advise them that the arbitration will proceed the next day even if the self-represented party fails to attend.
What if the self-represented party returns and asks you for help in conducting his cross-examinations?
Some arbitrators help guide self-represented parties through the process. It is helpful if the lawyer on the other side is more lenient in helping a self-represented party. The arbitrator should not take over the cross-examination, though.
- You are the arbitrator in a construction dispute. The Applicant is an individual who may lose his life savings if he loses the arbitration. The Applicant does not speak English very well and is self-represented. The Applicant sends emails explaining his dire financial situation and his extensive health problems. In some of the emails, the Applicant admits to contemplating suicide. What should you do?
The consequences of not doing anything when a person threatens suicide can be serious. Some arbitrators would arrange a wellness check for the Applicant. For a wellness check, police would attend at the home of the person to ensure their safety.
For the hearing, if the capacity of the Applicant becomes an issue, the arbitrator can grant an adjournment for a court application to be brought to determine the Applicant’s capacity. Arbitrators may require evidence to be satisfied that the adjournment is necessary, and it is not a delay tactic.
- You are contacted by a lawyer who is interested in retaining you as sole arbitrator. He asks to interview you before deciding whether to suggest you to the other side to get a sense of how you might handle particular aspects of an arbitration. Do you speak with him?
Some arbitrators would meet with the lawyer and then recuse themselves from the matter. Most arbitrators would not recuse themselves after meeting the lawyer. During the meeting, these arbitrators would ensure that they did not discuss the facts of the case. At the meeting, arbitrators can talk about their background and experience.
Must you disclose to the other party the fact of your earlier conversation with the lawyer?
Some arbitrators would advise the lawyer they are speaking to that they will inform the other party about anything discussed on the call. Other arbitrators would not feel the need to inform the other side because the arbitrator is not yet retained. There is probably no obligation to disclose pre-appointment conversations. If the arbitrator were retained, they should not have any unilateral communications with a party.
Assume that when you speak with the lawyer, it becomes clear that he is looking for an arbitrator who will not tolerate delay tactics by the other party. How should you react?
Arbitrators can explain that they deal with delay tactics based on the facts as they reveal themselves. Arbitrators can say that they cannot state in advance (or in the abstract) how they would deal with any tactic.
What if the lawyer asks (in the interview) whether your tendency is to prefer black letter law or fairness when they conflict? What if he asks for your view on how much arbitrators should “make new law” if fairness dictates it.
Arbitrators should not discuss the facts of the specific case, but can make neutral statements about the fact that they will decide matters in accordance with the law as they see it and in accordance with the facts as presented. An arbitrator should generally not indicate a preference (or disdain) for black letter law.
What if, after you speak with the lawyer, he asks if you will agree to an interview with him and the lawyer for the other party together, but asks that you not reveal to the lawyer for the other party the details of your initial interview with him?
The arbitrator should advise the lawyer that he or she will respond honestly if asked about the earlier conversations. Some arbitrators would feel the need to make a proactive disclosure of the earlier meeting, while other believe that the earlier meeting should be disclosed.
- You are the Chair in a tribunal of three arbitrators under the CAA Rules. Two months before the hearing, the defendant retains a new lawyer. The new lawyer was your articling student 15 years ago. What should you do?
Arbitrators should disclose potential conflicts of interest so the parties can determine whether want to challenge the arbitrator’s neutrality. Transparency is key. There is no clear line for what to disclose and what is not necessary to disclose. Most arbitrators err on the side of disclosure.
If the potential conflict is with the client and not with the lawyer, the arbitrator should err even more on the side of disclosure. Disclosure obligations are stricter for relationships with clients than for relationships with counsel. Relationships with witnesses should also be disclosed.
In this case (with the former articling student), most arbitrators, but not all, would disclose the relationship.
Would it make a difference if your former articling student was not a new lawyer retained by the defendant but was added as co-counsel for the defendant?
The consensus was that this would not make a difference.
What if the new lawyer used to be a classmate of yours at law school?
Most arbitrators would not disclose the classmate unless there was a continuing relationship with the classmate, or if the classmate were also a roommate. Arbitrators may also want to make a disclosure if they have acted as the arbitrator on numerous occasions for the same parties (or lawyers) who are before them.
What if you serve on a Bar Association committee with the new lawyer?
Most arbitrators would not disclose this relationship as a potential conflict of interest.
What if your spouse and the new lawyer’s spouse are friends?
Arbitrators felt this was closer to the line to require disclosure but determined this relationship likely did not cross the line to require disclosure, unless they were close friends.
- You are the agreed upon arbitrator for a personal injury dispute under the CAA Rules. During the preliminary call, the parties advise that they are considering med/arb. Neither lawyer has participated in a Med/Arb before and they ask you to run through the benefits and drawbacks of it.
The benefits of a Med/Arb include:
- Efficiency by reducing the learning curve for the arbitrator; and
- Impetus to settle because mediator may indicate how the mediator may view the issues in dispute.
The drawbacks of a Med/Arb include:
- Parties may not be as forthright about weaknesses in their arguments because the mediator may have to ultimately decide the issues in dispute and the parties may not want to concede that their argument is weak; and
- The neutral may learn facts in the mediation portion of the Med/Arb that he or she would have to disregard in the arbitration phase.