Annual Conference 2016

ANNUAL CONFERENCE 2016

MINUTES

Date: November 14, 2016

Time: 9:00 a.m. to 12:30 p.m.

Location: Toronto, Ontario

Synopsis

The 2016 Annual Conference featured a discussion of eight hypothetical situations that raise practical and ethical issues arbitrators may encounter. Attendees were entitled to 1 hour 30 minutes Professionalism Content and up to 1 hour 45 minutes Substantive Content for Law Society of Upper Canada (“LSUC”) Continuing Professional Development purposes. The situations and discussions are outlined below.

  1. You are appointed as arbitrator in a dispute between former partners in a dental practice. The parties’ contract references the CAA. Counsel were unable to agree as to how best to proceed, and you issued a procedural order directing counsel to submit briefs by a set date. Counsel for the defendant submitted a brief and counsel for the plaintiff did not. Counsel for the defendant has requested a conference call to determine next steps but counsel for the plaintiff is not replying to emails or returning telephone calls from the defendant or from your assistant.

What do you do?

  • How you got jurisdiction may make a difference.
  • If the parties already consented to you as arbitrator, you would want to know what happened, and you might send a letter to counsel, copied to counsel for the defendant, indicating that he had not proceeded as directed, asking for an explanation, and stating that you will proceed to set a hearing.
  • Alternatively, you might set a hearing date and an agenda for a teleconference and proceed without the brief, hoping that counsel for the plaintiff would be prompted to participate.
  • Can you tell counsel that there is no one putting forward this claim and if there is no response by a certain date, you’ll assume this matter is not proceeding?

What if neither party is responding to emails or calls from either you or your assistant and neither has submitted a brief?

  • At what point do you decide that you’ll summarily dismiss the claim if you don’t hear back from counsel by a certain date?
  • If you don’t hear from the parties, you can treat this application as withdrawn on a without prejudice basis.

 Does it matter whether or not either side has paid its share of your retainer?

  • If you’ve accepted the appointment as arbitrator, you must act on that appointment.
  • The fact that someone hasn’t paid doesn’t change your obligation.
  1. You are the arbitrator in a CAA arbitration. The plaintiff began the arbitration with counsel, but has since discharged his lawyer. He is now self-represented. He is doing his best to undo any work done by his lawyer, including reneging on aspects of the process that were previously agreed upon. You have already spent a significant amount of time on the case. The defendant argues in a procedural conference call that the plaintiff has been attempting to run up the defendant’s legal bill.

What do you do?

  • How is this different from a new a lawyer being retained on the file and wanting to make changes to the timetable or procedure?
  • Do we really assume that the clients are running the show when the timetable and procedure are set?
  • The plaintiff shouldn’t renege on decisions made by his lawyer previously; on the other hand, the plaintiff may have discharged his lawyer because he disagreed with what he was doing. You have to find out what’s really going on.
  • You must be careful to not help an unrepresented party too much but you also have to convince him that he’s being heard.
  • It may help keep the parties reasonable if you point out that there are cost implications associated with reneging on aspects of the process, and those may be payable by the party responsible for the increased costs.
  1. You are appointed as arbitrator in a high dollar value commercial leasing dispute. One month before the hearing, counsel for the respondent writes to you saying that he is involved in a court hearing which was originally slated to finish a week before the date for the hearing in this arbitration. The court hearing has been scheduled for the same week, and he will be unable to attend the arbitration. He asks you to adjourn the hearing and to fix a new date two weeks later. He says he is the only person who knows the respondent’s case, and that, without him, his client will not be able to present its case adequately. The claimant’s counsel objects, saying that she has a large family reunion planned that week in Hawaii that she does not want to miss.

What do you decide?

What if your next available date for the hearing is in six months?

  • Perhaps the claimant’s counsel can have someone step in to assist in her absence, particularly if she is in a large firm.
  • Does it matter if the respondent’s lawyer is a sole practitioner and the claimant’s lawyer is in a large firm?
  • If nothing can be worked out, perhaps the original dates should be kept.
  • Is there is a difference between a lawyer’s inability to attend due to a conflicting court date versus a personal obligation?
  1. At the conclusion of an arbitration hearing over unpaid invoices, counsel ask what is your preferred method of costs submissions. You knew all along that you would be expected to make an order allocating costs of the arbitration, including your fees and expenses, and the costs of the parties.

 How will you ask the parties to make their submissions? In oral closing statements? By post-hearing briefs? By supplementary briefs once your decision has been released? What is the best method and why?

 Parties tend to be more reasonable in their costs submissions before they know the result, so costs submissions with post-hearing briefs are one possibility.

  • The parties may want to address arguments about suggesting a shorter, less expensive process, or they may want you to consider settlement offers in making your award on costs. It would not be appropriate to deal with these submissions before your award on the merits is rendered.
  • If you ask the lawyers if there were settlement discussions, you give up control over what counsel might reveal to you, even if you are expecting a simple yes or no answer.
  • Lawyers’ capacity to say something useful about costs may be limited until the outcome of the case is known.
  • There is no right answer, and there are pros and cons associated with the different methods.
  1. You are the arbitrator in a commercial arbitration. A timetable and potential hearing dates are tentatively set with counsel during a preliminary teleconference. A few days later, counsel for the plaintiffs advises that their expert witness is not available on any of the suggested dates. New dates are canvassed and a few days later, counsel for the plaintiffs again advises that their expert witness is unavailable on the dates when all other parties are available. You are confident that the plaintiffs are eager to move forward with the arbitration, and that the issue is not being created by the plaintiffs or their counsel.

 What do you do?

  • You might receive the expert’s evidence by videoconference instead of in person, or you might issue a subpoena.
  • Do you inquire as to why the witness is unavailable? Do you, as the arbitrator, tell the plaintiffs to issue a subpoena?
  • You might tell the plaintiffs’ counsel that he has three options available to him: he can receive the expert’s evidence via videoconference; he can receive the expert’s evidence in person before and/or after hours; or he can issue a subpoena.
  • Alternatively, you might proceed with the original timetable but hear the witnesses out of order so that the expert’s schedule can be accommodated.
  1. You are the arbitrator in a CAA arbitration. Counsel for the plaintiff repeatedly misses deadlines and fails to participate in two teleconferences, for which he had previously confirmed his attendance. He is extremely late in paying your deposit and in submitting signed Terms of Appointment. He admits to you and to counsel for the defendant that the delays are his own fault and have nothing to do with his client, who provided the requested funds months earlier. When counsel appear before you for the hearing of a preliminary motion, plaintiff’s counsel looks unwell. He is sweating and his eyes are bloodshot. He apologizes and asks for an adjournment of the motion, telling you that he is completely unprepared to defend the defendant’s motion.

 What do you do?

  • You have to take this lawyer’s client into consideration, and it is appropriate to adjourn to either allow the lawyer to dry out or to allow the client to retain a new lawyer.
  • To what extent do we as members of the Law Society of Upper Canada have an obligation to report if a lawyer is unfit to practice and/or represent his client?
  • You have a positive obligation to reach out to the Law Society and report that you have concerns about this lawyer.
  • Is this confidential information? What is confidential information in a confidential process?
  • Arguably, confidentiality doesn’t extend beyond the issues in dispute. You can talk about the lawyer’s behaviour without talking about confidential facts of the case.
  • You might call counsel in for a meeting where you can express your concerns. You can ask the plaintiff’s lawyer if he has an obligation to report himself to the Law Society; you can also ask the defendant’s lawyer if he has an obligation to report the plaintiff’s lawyer to the Law Society.
  • It would be problematic for you as the arbitrator to report a lawyer who is appearing before you and to then proceed with the arbitration. The plaintiff will likely not be convinced of your impartiality at that point.

Assume that the plaintiff retains new counsel and the preliminary motion proceeds with new counsel. Your decision on the preliminary motion is released to the parties.

 A few days later, you receive a call from the local police authority. The officer says he has a few questions about the status of this arbitration as it relates to the plaintiff’s first lawyer and a pending fraud investigation.

 What do you do?

  • It would be appropriate to give the police information about your observations, but not about the facts of the case.
  • You can only produce your file if ordered to do so by a judicial authority.
  1. You are a party-appointee in a tribunal of three under the CAA Rules. The evidence is in and you and the other arbitrators are considering your decision.

 The other party-appointed arbitrator is clearly just blindly accepting the arguments of the lawyer who appointed her, and refuses to even listen to reason. You believe the result should be mixed, but you’re concerned that if you suggest that and the other arbitrator argues forcefully in favour of the side that appointed her, the Chair will accept some of your suggestions and some of the other arbitrator’s.

Should you be more one-sided in your deliberations to counteract the actions of the other party-appointed arbitrator?

  • You must have confidence in the Chair and his ability to appreciate what is going on. It’s up to the Arbitral Tribunal to discuss any disagreements and the Chair will arrive at the most compelling outcome.
  • If it’s obvious to you what the other party-appointed arbitrator is attempting, then it should be obvious to the Chair as well.
  • If the Chair is being swayed by a partial arbitrator, then you can require a notation that the decision arrived at is a majority decision. You can also consider writing dissenting reasons.
  • As a party appointee, you should be completely neutral. It is wrong to take a perspective that you don’t believe is correct in an attempt to balance another perspective.
  1. You are an arbitrator in a CAA arbitration. The amount in dispute is $100,000. Both lawyers insist that, notwithstanding the amount in dispute, the legal issues are very complex and the arbitration cannot be completed in less than a week.

 What should you do?

  • Do arbitrators have a duty to insist that a dispute must be proportionate to the cost of the arbitration?
  • Arbitrators need to be really conscious of proportionality—not just the complexity of the issues but also the amount in dispute.
  • Perhaps arbitrators should be more aggressive in managing the cost of the arbitration.