Should the mediator propose creative solutions?
January 20, 2023 By Brian Babcock There is no single simple answer to this FAQ. Mediation is rightly popular because in most disputes, the best result is one the parties agree to themselves. This applies especially to situations where the objective is about more than “who will pay how much?” But what happens if you […]
The Business Judgment Rule and Arbitration
November 15, 2022 By Brian Babcock THE ISSUE Courts do not generally have jurisdiction to decide upon matters of business judgment. This is referred to as non-justiciability. Because an arbitration clause creates “private law” between the parties, a clear and specific clause awarding jurisdiction to an arbitrator over matters of business judgment may be enforceable. […]
Non-Solicitation and Appealing from Arbitrations
November 15, 2022 By Brian Babcock THE ISSUE Unless a submission to arbitration provides otherwise, the Arbitration Act, 1991 only mandates a right to apply for leave to appeal on questions of law. The application of the law to facts is not a question of law. For leave to appeal to be granted, the issue […]
A Sticky Wicket about Cricket
May 30, 2022 By Brian Babcock An arbitrator’s award must include reasons which explain clearly how the decision was made. This principle was reviewed and reinforced in the Ontario Superior Court decision of Alberta Cricket Association v. Alberta Cricket Council. The case involved a dispute between two groups competing to be designated as the Provincial […]
Taking Arbitration Clauses Seriously
May 13, 2022 By Brian Babcock Until now, arbitration clauses in your commercial contract have likely been one of those “boilerplate” provisions tucked away deep into the document, drafted by a lawyer but largely ignored by the clients. If you have not been giving the arbitration clause serious thought until now, it is time to […]
Royalty Agreements – Arbitrate or Litigate?
November 13, 2021 By Brian Babcock Despite the complexity of mining royalty agreements, if they contain an arbitration clause, Ontario courts are likely to stay any court proceedings and defer to arbitration. This is consistent with the recent trend to defer commercial disputes to arbitration generally, if that is what the parties agreed to in […]
Enforceability of Arbitration Clauses in Employment Agreements
August 16, 2021 By Brian Babcock It may be that not all arbitration clauses in employment contracts are unenforceable. The Supreme Court of Canada decision in Uber Technologies v Heller has attracted a lot of attention for declaring that the particular arbitration clause in the Uber agreement was invalid because it was unconscionable. At a […]
Too Much to Ask
January 8, 2021 By Brian Babcock What happens when an arbitrator commits errors of law and a breach of natural justice which require a new hearing? Usually, a different arbitrator must be appointed. The principles of efficiency, cost-effectiveness and fairness to the parties must be balanced with the need to secure fair and equal treatment. Even […]
Unsettling Settlements
December 23, 2020 By Nick Melchiorre Careful drafting of your settlement agreements may avoid future grief, legal expense, uncertainty and delay. Poor drafting may even make your settlement vulnerable to being reopened. If it is a settlement you reach without lawyers, this is particularly problematic; but even if you have a lawyer, they need your participation […]
FAQ: Am I going to win?
December 7, 2020 By Brian Babcock In lawsuits, this must be the single most frequently asked question. The only honest answer is “I don’t know.” As much as clients hate to hear it, nothing is certain when you go to court. Your lawyer can give you an educated opinion on what might happen, but there are […]