This is the special page for students who took the Fall 2011 Arbitration course which has ended. It has been updated after each class with a summary of what was covered in the class. You may still comment or post questions here. This page will be available until the end of the year 2011 for your use and for our discussion. The class contact list and receipts were mailed to students on December 7th. Course completion certificates were couriered to Murray Miskin to sign and arrived and were sent out BY MAIL December 14th. MHM December 14, 2011
Thursday September 8th. First class was introductory to topics including qualification as an arbitrator. It was decided that the weekend class will proceed on Saturday October 22. We began to look at Ontario’s arbitration act and discussed Section 35 about mediation and section 3 covering opting out of provisions of the act and referred to each of those sections where it is listed that you can not opt out. Most importantly you can opt out against the prohibition of the arbitrator from mediating and you can opt out of the right of appeal. You can not opt out of the Section 46 right to apply to court to set aside an award but you can opt out of the limited right of appeal given under Section 45.
Tuesday September 13th. In this class we discussed Section 13 of the Canadian Charter of Rights and Freedoms and the protection it gives to witnesses from self-incrimination. This relates to Section 21 of the Arbitration Act which brings into arbitration the provisions of Sections 14, 15 and 16 of the Statutory Powers Procedure Act (SPPA) which were discussed and affect evidence at arbitration. We discussed offers to settle in Court under Rule 49 and in arbitration under Section 54 (5). We further discussed combining mediation and arbitration which effectively requires an opting out of Section 35 and Section 13 (1) 1 of the Arbitration Act. A new precedent agreement will be brought to the class on September 20th. There was a handout of Sections 127 to 130 of the Courts of Justice Act dealing with interest which are incorporated into the Arbitration Act by Section 57. Section 127 to 130 will be discussed in detail at a later class. We also discussed assessing an arbitrator’s account under Section 56 of the Arbitration Act which refers to the Solicitors Act as it is a similar process as a client challenging their lawyer’s bill. Section 13 of the Arbitration Act and the challenge of the arbitrator up to the court level was also discussed. The set up of courts in Ontario was discussed particularly in reference to arbitration where there can be a number of applications made to judge’s of the Superior Court of Justice. Procedures in a court action from the beginning to the trial stage were discussed and contrasted to steps in arbitration which were discussed with reference to Section 25 of the Arbitration Act related to Statements (in court pleadings) and the discovery process which is optional in arbitration and formalized in court.
At the September 15 class we discussed the Canadian Charter of Rights and Freedoms and its application to arbitration. We then discussed family arbitration and how it came to be regulated through amendments to the Arbitration Act when efforts were made to set up an arbitration process for religious Muslims applying Sharia laws in arbitration. We then discussed the role of the courts in Arbitration as seen through sections 4,6,7,8 and 10 of the Arbitration Act. Section 8 was discussed with reference to Section 18 as there are overlapping powers of the court and the arbitrator. We also discussed Section 9 of the Arbitration Act which says that there is one arbitrator in an Ontario arbitration unless the parties specify otherwise. This was contrasted to Article 10 of the Model Law on International Arbitration (made law in Ontario by the International Commercial Arbitration Act) where the default number of arbitrators is three. Section 10 (4) of the Arbitration Act where it is stated strangely that the chair of an arbitral tribunal is elected from among the arbitrators (rather than automatically the third arbitrator normally appointed most independently of the parties). In the next class we will continue on that point noting its importance because Section 34 gives tie breaking powers to the chair and Section 20 (2) allows questions of procedure to be delegated to the chair.
The September 22 class began with a review of a Mediation agreement which was just used in the course of a Condominium arbitration being conducted by Murray Miskin. The agreement contained strong language where the parties acknowledged the risks of the process and specifically opted out of the provisions of Sections 13 (1) 1 and 35 of the Arbitration Act. Section 13 of the Act was discussed as one where the courts may be involved in arbitration on a challenge of an arbitrator for reasonable apprehension of bias or lacking qualifications to conduct the arbitration. There was further discussion of the problems involved and imbalance created if the parties follow Section 10 (4) of the Arbitration Act with reference to Sections 34 and 20 (2). Court involvement in the arbitration process was discussed with reference to Arbitration Act sections which are: 10, 11, 13, 14, 15, 16, 17, 18, 39, 40, 45, 46 and 47. The next class will continue covering court involvement beginning with discussion of Section 48.
The September 27 class continued covering sections of the Arbitration Act dealing with court involvement in arbitration as follows: 48, 49, 50, 52, 53 (6) and 56. We then dealt with sections covering procedures in arbitration and the powers of the arbitrator as follows: 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 23 (refer to S. 52 (1) for limitation periods which are time limits for commencing arbitration which relate to when an arbitration is commenced), 24, 25, 26, 27, 28, 29, 30, 34, 35, 36, 37, 38, 39. Sections listed up to this point should be known for their contents (not section numbers) for purposes of the test to take place on Tuesday October 6 at the beginning of the class. The test is likely to begin at 6:45 PM and general questions or questions on specific sections can be asked and answered between 6:30 and 6:45. You may NOT (this means shall not) refer to any notes or other materials including the Arbitration Act during the test. Those who finish the test ahead of other are asked to hand in their paper and leave the room while others are completing the test. If anyone is not going to be at class or expects to arrive after 6:45 PM please let me know in advance.
The October 4 class is to include the test followed by review of the following sections (not on the test except in relation to court involvement in arbitration or as previously discussed) which also relate to procedures under the act and the powers of the arbitrator: 31, 32, 33, 40, 41, 42, 43, 44, 51, 52, 53, 54, 55, 56 and 57. At the October 4 class we will also discuss in detail how interest is awarded and calculated for arbitration with reference to Sections 127 to 130 of the Courts of Justice Act. These sections were discussed after the test along with the provisions for interest as they apply to arbitration. From the 13 students all present the following were the number of students with each of the following marks out of a maximum of 20:
2 – 20
If your score was less than 15 I suggest you review the act more.
Following the October 4 class we next met on October 13, 18 and 20 and discussed costs in arbitration, arbitration agreements, the role of experts in arbitration, pre-arbitration meetings, production and discovery in arbitration and procedures at a hearing. On the morning of October 22 there was lengthy discussion of marketing services and running an arbitration practice.
Here is the link to the Law Times arbitration article: http://www.lawtimesnews.com/Focus-On/Arbitration-becomes-more-like-litigation
The course continued and the Mock Arbitration took place on October 22, 2011. The decision was given by the Arbitral Tribunal at the Thursday October 27 class. By a unanimous decision Flinders was successful in its claim. Notes taken of the actual hearing were posted but have now been removed. If you email me a request I will directly send class members a copy of the notes
At the October 27 class we discussed interest and costs in relation to the Flinders decision and then discussed Condominium, Sports and Construction Arbitration. The class then broke into two groups to negotiate an arbitration agreement in the Fawlty v Blackadder case. The negotiation was adjourned at the end of class. The last class included discussion of the text Russell on Arbitration and review of its content on who may be an arbitrator. We discussed the decision making process in arbitration and how to make an award including the requirements of an arbitration award. The Finhert condo arbitration decision was discussed as an example. A handout was distributed of quotes related to making a decision which included Lord Mansfield’s quote discussed in a previous class. Labour arbitration and international arbitration were discussed as was community arbitration (and getting started as an arbitrator by doing community work). We covered issues related to sensitivity to various ethnic groups and cultures during the arbitration process. The AAA video of problems in an arbitration was not available but some of its contents were discussed. Students were encouraged the join the Ontario Bar Association’s ADR Section and also to join the ADR Institute of Ontario. A class photo was taken with Ayoub Ali’s camera and hopefully it will be distributed.
Congratulations to all for successfully completing the course. Receipts should have arrived by now along with a list of everyone’s contact information. Certificates from the ADR Institute were sent out by mail on December 14, 2011.