Canadian Lawyer

48 M A Y 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m arbitration chambers are: Alternative Resolution Group Inc., Arbitration Place, British Columbia International Commercial Arbitration Centre, Canadian Commercial Arbitration Centre, Global Resolutions Inc., Amicus Chambers, Ottawa Dispute Resolution Group Inc. and Bay Street Chambers. In 2012, Brian Casey founded Bay Street Chambers, which practises commercial arbitration, split evenly between domestic and international matter. The firm's work focuses on commercial disputes, construction, shareholder and M&A, technology and intellectual property. Casey says he's recently seen an upsurge in technology and intellectual property arbitrations. While historically, he says, tech firms did not use arbitration, they appear to have changed their minds. In 2019, a pressing issue for all arbitrators in Canada, he says, is the trend of companies using arbitration clauses to extricate themselves from class actions. "What we're seeing is the courts are struggling to maintain the ability to have small consumer matters dealt with by class actions in the face of an arbitration clause," Casey says. "And the courts are, in my opinion, stretching the law to try and attain justice but are harming commercial arbitration precedence." Some provinces have passed laws to the effect that arbitration clauses are void with respect to consumers. Casey says the courts sometimes offer this benefit to commercial entities because it is being given to consumers, "and that is a problem." He says provinces need to look at the legislation more carefully. "You've got to change the legislation one way or the other, because what's happening is courts are now saying we can in fact hear commercial cases, even though the arbitration clause is valid," Casey says. "And then the question becomes, OK, how far are people going to try and push that?" Though he maintains that legislation is needed, Casey says a recent Supreme Court decision gave guidance on business customers subject to arbitration clauses that are participating in class actions. In TELUS Communications Inc. v. Avraham Wellman, customers of the telecommunications company formed a class action alleging TELUS rounded up calls to the next minute and thus overcharged them without notification. The motions judge certified the class as containing both consumer and non-consumer claims and declined to stay that of the non-consumers. TELUS argued that the non-consumer claims are governed by the mandatory arbitration clause and ought to be stayed. The Court of Appeal of Ontario ruled the motions judge had it right, but the Supreme Court differed — in a five-to-four majority — finding the judge was entitled to stay the claims and force the business customers to arbitrate. Top arbitration chamber Alternative Resolution Group Inc. is led by Shari Novick and Guy Jones. Earlier in her career, Novick was a litigator in private practice, but she says she was drawn to the neutrality of ADR. She became an arbitrator with the Financial Services Commission of Ontario and served two terms in the office of adjudication at the Ontario Labour Relations Board. Now having moved from public to private sector ADR, she spends her time mediating employment disputes, including disability and wrongful dismissal, as well as human rights disputes. She arbitrates many unjust dismissal claims and other labour grievances. "We have a lot of collective experience between the two of us," she says. "We've got something like 50 years between us of dispute resolution experience. And that means that I think we hit that sweet spot between being flexible and let- ting the parties involved dictate the process that works best for them. But we are skilled enough to guide the ship, so to speak, toward an effective resolution." "We've got something like 50 years between us of dispute resolution experience. And that means that I think we hit that sweet spot between being flexible and letting the parties involved dictate the process that works best for them." Shari Novick, Alternative Resolution Group www.baystreetchambers.com 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 ntitled-3 1 2019-04-18 4:10 PM

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