Canadian Lawyer InHouse

NOVEMBER/DECEMBER 2018 24 INHOUSE A lexander Gay is a big believer that Canada, and specifically Ontario, needs to breathe some new life into arbitration as a means to settle civil disputes. "It has to be given greater importance. Look at Europe — most commercial dis - putes are resolved through arbitration and there's good reason for that," says Gay, who is senior counsel with the civil litigation sec- tion of the Department of Justice in Ottawa. He says Canada has the lowest use of arbitration in the Commonwealth, far less than what is used in the United Kingdom, Australia and New Zealand. Some argue arbitration can cost as much as a trial, but it all depends on whether the right process is in place with the right ar - bitration agreement. And that's where Gay says education has to come in. "Most counsel who conduct arbitrations treat it like a case. If you're going to treat it like a case along the rules of civil procedure Taking matters to arbitration instead of the courts can result in a more efficient, focused and cost-effective process. By Jennifer Brown and not designing a process that works, then it can be as expensive or more expensive. It's about designing a process that works," he says. While public law matters are not suited to arbitration — anything involving Char - ter claims or anything of public inter- est should never go to arbitration — even copyright or patent matters that have some bearing on others and public knowledge of what has happened are not suitable, but matters such as construction disputes are well suited to arbitration. It's not a path she has chosen frequently, but, on occasion, Marni Dicker has used ar - bitration to settle civil commercial matters in her time as general counsel in the con- struction industry. The benefits, she says, of going the path of arbitration include the ability to choose an arbitrator and facility you are comfortable with. "If I think arbitration will get me a more expedient result, I will go that route," she says. "I do feel if there are narrow issues to be resolved or if there are personality issues, mediation can be a good way to go." Dicker, who is executive vice president and general counsel of development com - pany LiveWorkLearnPlay, and formerly of Infrastructure Ontario, has used arbitration on several instances in her career in-house, but she says, in her experience, it can be "just as expensive" as going to trial. The upside should be a more controlled scenario where the parties in charge of get - ting to a decision have greater experience in the sector in question. "Most litigators these days will tell you going to court is a bit of a gamble," says Gay. "You don't know who you are going to get, whereas when you do an arbitration you know who you are going to get, and you've agreed on that person — someone who has expertise in the subject matter." Gay says he has dealt with construction delay claims in front of qualified arbitrators who have been able to resolve issues for par - ties in cases he says he would never put be- fore a court. Court, he says, has become "a high-risk game." Dicker says she likes "binding arbitra- tion" if it will be more expedient and gets a binding result that allows the parties to move forward. The Alberta Energy Regulator has two internal alternative dispute resolution pro - cesses and as part of its hearing process, it has a binding dispute resolution process (they differentiate it from arbitration be- cause they have separate appeal mechanisms and processes than what is provided for in the Arbitration Act). "As a result, we are strong proponents of alternative dispute resolution and use it to help create efficiencies," says Keely Cam - eron, legal counsel with the regulator. "Our processes are available both to resolve stake- holder disputes, but we also offer ADR in certain cases to resolve internal disputes. In terms of our civil litigation experience, we have not used binding arbitration; however, we have used our mediation staff to facili - tate discussions, which has been very suc- cessful in terms of resolving litigation." Some like arbitration because it can be considerably faster and cheaper if done well. "What most counsel fail to realize is that when you do an arbitration it can be custom tailored for the needs of your file. SEEKING ALTERNATIVE MEASURES

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