Annual Conference 2017

ANNUAL CONFERENCE 2017

MINUTES

Date: October 23, 2017

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

Location: Toronto, Ontario

Synopsis

The 2017 Annual Conference featured a discussion of six hypothetical situations that raise practical and ethical issues arbitrators may encounter. Attendees received 2 hours and 40 minutes of Professionalism Content for Law Society of Upper Canada Continuing Professional Development purposes. The situations and discussions are outlined below.

  1. You are the arbitrator for a matter in the early stages of the proceeding under the CAA rules. You prepared for the preliminary conference call but the call was cancelled due to the plaintiff’s retention of new counsel on the eve of the call. The plaintiff’s new counsel requests time to allow him time to be brought up to speed on the file. Several weeks pass and the lawyer maintains that he needs more time. You feel that this should be a relatively straightforward matter and that the lawyer has had more than enough time to prepare. Counsel for the defendant is not complaining about the delay. What should you do?
  • The arbitration belongs to the parties and the process is in their hands.
  • Arbitration is supposed to be speedy.
  • You may want to establish a new timeline and hold firm with the next date.
  • Consider that, if the arbitration drags on, the parties may be upset about the length of time for the arbitration and may blame the arbitrator.
  • Our obligation is to manage the process as best as we can.
  • You have to balance the parties’ autonomy with preventing unreasonable delay.
  • If you get the clients on the call, that may be helpful.

Does your answer change if counsel for the defendant is complaining about the delay?

  • Do you attempt to compromise on the timetable?
  • Is there any prejudice to the defendant in the delay?
  • An arbitrator’s job is to do the best job he or she can in the shortest time he or she can.
  • Arbitrators should do their best to move the process forward.
  1. You are the arbitrator in a dispute over the termination of a lawyer’s employment with her previous firm. From the beginning, counsel have been uncooperative. It took several months to arrange a preliminary conference call following your appointment because of the unusually limited availability of counsel for the defendant, and there have been several delays relating to disclosure and submission of materials throughout the process on the part of both parties. After two years, you are finally at the hearing. During a break, you overhear counsel for the defendant say to his client, “Arbitration doesn’t normally take this long. This process is taking so long because of the arbitrator.” What should you do?
  • Do you pretend you didn’t hear it? Our job is not to protect ourselves.
  • Perhaps you explain the reasons for the delay in your Award without reference to that discussion.
  • Are you putting yourself in a position of bias if you say something?
  • Should you disclose to parties that you’ve heard this and see if they want you to recuse yourself?
  • If you decide to raise the issue, you must talk to both lawyers together.

What if, instead, you overhear counsel for the defendant make this comment to counsel for the plaintiff?

  • Is this any of your business?
  • What would you stand to gain by raising this with counsel?
  • It’s not uncommon for counsel to have discussions along these lines.
  1. You are the arbitrator in a CAA arbitration with a self-represented claimant. During the respondent’s opening arguments, the claimant becomes disruptive, yelling and banging his fists on the table. What should you do?
  • There are many arbitrators who never take on a case with a self-represented party.
  • Some arbitrators will only do an arbitration with a self-represented party with a court reporter in the room.
  • Do you talk to the parties about courtroom procedure and courtesy?
  • Frame the discussion so that the claimant knows he is not helping his case as he must help the arbitrator.
  • Perhaps take a break.
  • There is a balance between controlling the process and letting the self-represented party get out what they feel they need to say.

Assume the claimant calms down, and you are able to complete the hearing. After the conclusion of the hearing, the claimant delivers written submissions and introduces new evidence that was not raised at the hearing.

  • Do you send the new evidence to the other side and give them an opportunity to object?
  • Do you write to both sides and say I’ve received this and will not entertain it?
  • Do you re-open the hearing if the other side says don’t let this evidence in, and let the other side make submissions?
  • Are you more inclined to re-open the hearing if the documents may be determinative?
  1. Pursuant to a court order, you have been appointed (through the CAA) as sole arbitrator of a dispute relating to a real estate development. Following a preliminary teleconference, the plaintiff submits its signed Terms of Appointment along with the deposit you requested. The defendant fails to do so. The plaintiff submits its Notice of Arbitration in accordance with the timetable agreed to during the teleconference. The defendant fails to deliver its Response pursuant to the timetable. During a subsequent teleconference, counsel for the defendant advises that his client is unable to pay the deposit and has instructed him not to execute the Terms of Appointment.
  • If one party hasn’t objected to the Terms within 10 business days, they are deemed to accept the Terms under the CAA Rules.
  • Do you offer to the plaintiff the opportunity to pay the deposit for both sides and proceed?
  • The request to have an ex parte hearing should be denied. It’s really a separate issue from the payment of fees.
  • The only way to have an ex parte hearing would be if one party doesn’t show up.
  • Should you proceed with the hearing, write a decision, and not release your decision until the fees are paid in full?
    • Is this problematic? The court has ordered you to arbitrate.
    • You have the option of arbitrating for half of your regular fee.
    • You will have to make a judgment call.
  • If the Terms are not signed, are you actually appointed (absent a court order)?
  • You as the arbitrator have the right to waive your requirement of signed Terms.
  • You as the arbitrator have an inherent right to set the process. You might issue an interim decision setting out the process and give counsel seven days to appeal before proceeding on the merits.
  1. At a Bar Association event, you meet a lawyer who tells you that he is going to be initiating arbitral proceedings on behalf of one of his clients in the next couple of weeks. He says, “Let’s set up a time. I’d like to talk to you about the case to see if you’re the right person for this.” How should you respond?
  • It is okay to answer questions about your experience for information purposes as long as you don’t talk about the case or your tendencies.
  • Does it make a difference if the appointment is for a three-person panel or as a sole arbitrator? It should be the same test.

What if he says: “I’d like to buy you lunch later this week. You may be a good arbitrator for my client’s case.”

  • Going for lunch in and of itself may be problematic.
  • Do you need to disclose the lunch to the other side?
  • If you go, you should pay for yourself.

What if you meet this lawyer at your spouse’s family reunion, as opposed to at a Bar Association event?

  • Assuming you don’t have a particularly close relationship, there’s not much difference.
  • It makes sense to find out what the relationship is (and maybe it’s not a problem).

What if, instead of offering to buy you lunch later this week, the lawyer offers to buy you a drink at the Bar Association event?

  • Would a $5 drink influence or appear to influence anyone?
  • It’s trickier if the lawyer wants to buy you a drink and discuss the case.
  • Your radar should be really high; perhaps it’s better to say: “my preference would be to discuss over the phone tomorrow”.
  1. At the beginning of a conference call to discuss preliminary issues, counsel for the respondent says that she disputes your jurisdiction to continue as arbitrator because she just learned that, when you were a partner at your old firm, one of your partners did some corporate work for one of the subsidiaries of the claimant. Both parties had agreed on your appointment once they came to the CAA for assistance in resolving their dispute under the generic arbitration clause in their contract. Counsel for the respondent says that she won’t discuss procedural issues until the issue of jurisdiction is determined. She says an adjournment to give time to prepare and argue a motion would cause irreparable harm to her client, and the matter must be dealt with immediately. How should you respond?
  • The proceedings are at a preliminary stage. Does it make everyone’s life easier to get off the case if the respondent’s lawyer has a problem with you?
  • What if the claimant’s lawyer says the respondent is just trying to delay the matter?
  • You’re entitled to determine your jurisdiction receiving submissions based on what counsel know now; if new information is uncovered later, counsel can bring it up then and you can make a decision immediately.
  • Once they’re raising this objection, it may be an indication that they’ll be a problem litigant.