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40 J u l y 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m quickly but it really depends on the parties involved whether arbitration will work or not work." You can't always expect a faster or less expensive result says Paul Fruitman, a commercial litigator with Lax O'Sullivan Scott Lisus LLP in Toronto. "If people want to drag it out they can still drag it out. I don't think it's cheaper, I really don't." Fruitman says the same two-week matter at trial versus arbitra- tion might end up costing the same when you factor in arbitrator fees, facilities, and associated costs. He does believe while you can often get a result faster with arbitration, getting a court date in the Toronto area is becoming easier than it used to be. "If you're look- ing for an arbitrator who is in demand you're not necessarily going to get a hearing in six or eight months or more," he says. He says he recently tried to schedule an arbitration with former chief justice Warren Winkler. "Getting dates now for a two-week arbitration for the end of this year is looking to be difficult and we may be looking at March of next year," he says. Smith agrees that arbitrations aren't always faster. "I've seen it where parties have adopted the same discovery process that would have existed had they gone to good old litigation, so you're not sav- ing anything there. It can be more streamlined, which is the true intent of arbitration, and in that case you can generally achieve it more expediently and less expensively," he says. There is also a well-developed body of law on discovery and disclosure obligations in court proceedings that is still emerging in arbitrations, says Bob Sokalski, litigation counsel with Hill Sokalski Walsh Trippier LLP in Winnipeg. He says the rules of procedure and evidence are not as strict or well developed in arbitrations. As a result there's still an element of uncertainty in what you see when you get to arbitration, which can then lead to delays. "That can lead to time expenditures and adjournments lead to costs, as well," he says. By not going to court decisions aren't always made public and that's a plus for some but also a problem, says Smith. "You lose the jurisprudence but if you stand back and say it's a deter- mination of a private contract, really the law around it is pretty fulsome and they're not going to be adding much. So how a particular clause is interpreted may not be of import to others although it could be if that particular contract is used in multiple situations where someone may say, 'I have a beef with that party and I'd sure like to know how that contract was interpreted.' If it's gone to private arbitration they're not going to know that." Another layer of costs, Sokalski points out, is arbitrators need to be paid, judges do not, or at least not by the parties to a dis- pute. In an international arbitration, it's common to have a panel of three arbitrators who may come from different jurisdictions, requiring travel costs be paid. Compare that cost to a judge in a court that the parties don't have to compensate for their fees and disbursements. Sokalski sees more contracts including arbitration clauses and more parties leaning towards that option. He says some are building in a precedent provision that the arbitrator is bound, to some extent, by arbitral jurisprudence. "They have a lot more leeway than judges do and that could create a potential downside for a party who wants the legal certainty of precedent in achiev- ing a resolution," he says. "Arbitrations are, in my mind, better designed to resolve factual disputes than legal disputes." One thing parties can do to speed up matters is tailor the pro- cess to the dispute. When dealing with litigation, every dispute, no matter what its size or complexity, has to follow the rules of "I'm a big advocate of the Commercial list where there is a lot of flexibility in how the process can be done with active case management because the list is smaller and it runs differently. a lot of the benefits people see in arbitration exist with the Commercial list." LIsA MuNro, LerNers LLP lEgal rEport/lITIgaTIon www.kuretzkyvassos.com Tel: (416) 865-0504 BARRY KURETZKY AND GEORGE VASSOS LEXPERT ® RANKED SINCE 1997 AND SELECTED TO BE IN "BEST LAWYERS IN CANADA" ntitled-1 1 13-12-04 9:49 AM

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