Canadian Lawyer InHouse

25 CANADIANLAWYERMAG.COM/INHOUSE NOVEMBER/DECEMBER 2018 That's where the savings are," says Gay. "If you look at litigation, 90 per cent of all your costs are in discovery. That's where you can customize the process to the case you are faced with. That's where you achieve effi - ciencies financially." The release of R. v. Jordan by the Su- preme Court has diverted judicial resources to criminal cases to meet time requirements put on the system. That should be prompt- ing more civil matters to seek alternative measures for resolution, says Gay. "The frustrating part is that while Jordan has put added pressures on the courts, we have the tools to alleviate the pressures right before us. We have an army of retired judges and specialists that can be engaged," he says. Gay does object to lumping arbitration in with mediation. "Most law schools teach both topics together and I think that if we are going to break the cultural impediment that we currently face in this province, we need to de-link these two concepts," he says. "The fact is that arbitration is under- utilized in Ontario and this is due to the cultural impediments where lawyers in this province and elsewhere in Canada somehow view the courts [as] the only true vehicle that can dispense justice. This is far too nar - row and has put us in a difficult spot." Gay says change in this area requires a multi-pronged approach that includes edu- cating lawyers and law students on the prac- tice of arbitration. Arbitration capacity in the province should be built up by allocating funds, much like what British Columbia did with its International Arbitration Centre, and that the courts push arbitration where possible. "We have reference provisions in the Ontario Rules of Civil Procedure that allow judges to offer a form of arbitration on actions that are before the courts. While they are in the rules, they are not being used," he says. Gay concedes it may require some minor tweaking of the rules and the support of the provincial attorney general, but it is "well within reach," he says. "You have reference provisions in the rules of procedure that allow for arbitration on consent and they're not used," he says. "Talk to most lawyers and they don't know what the reference provisions in the rules are. We have mechanisms in the rules; we just need the courts and Attorney General of Ontario to lend some support to that process." Too often, the focus is on tailoring the process after the agreement has been signed, but Gay's advice to in-house counsel is that the arbitration clauses put into agreements be very carefully reviewed before signing. "In most cases, in-house counsel will adopt a clause that says 'we hearby agree to arbitration," but to me that is not enough. You have to start thinking well ahead of what you are going to do with your dispute and include it with part of your agreement with your party before the dispute is trig - gered," he says. IH Commercial Arbitration and Mediation. Experience when it counts. J. Brian Casey, FCIArb. Joel Richler, FCIArb. Marty Sclisizzi, FCIArb. • Joint venture, real estate, construction, energy, technology and intellectual property, banking, shareholder, partnership and M&A disputes • Ad hoc, AAA, ADRIC, ICDR, LCIA, ICC, ICSID • Located at Arbitration Place, the leading state of the art hearing facility Untitled-3 1 2018-10-25 2:50 PM

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