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Jan Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 49 lawyers can simply blame the legislation, the “system”, the courts or the arbitration process itself for the fact that the promise of an efficient and effective dispute resolution process was not achieved by opting for arbitration. Unmet expectations are endemic to our legal system for the resolution of disputes. What is needed to fulfill those expectations are clear alternatives that maximize the utility to parties with disputes while minimizing the extent, duration and cost of legal services provided in the process. THE “OPT IN” OPTION The “opt in” option adopted by the new UAA recognizes the foregoing objections to and difficulties arising from the combination of arbitration and court appeals, but preserves party autonomy to the extent that the parties can agree to an appeal on a question of law. This option responds to the argument that allowing for a right to appeal on a question of law will better meet user expectations for non-international arbitration in Canada. In situations in which parties are operating commercially, it places the onus on the party that is seeking an appeal right to justify it and bargain for it, or to provide some other mechanism for addressing its specific concern—for example, by specifying particular qualifications for the tribunal or allowing for an internal appeal process within the arbitration. See as to the latter, “A View from the Centre” at p. 79 of this issue – Asst. Ed. Given the fundamental incongruity between the concept of arbitration and merits-based appeals to the courts, as well as the substantial undermining of the benefits of arbitration that can occur when appeals are undertaken, it is important that appeals occur only when parties have made an express choice to so provide. This allows parties the freedom to make that choice when it is important to them, but does not taint the concept of arbitration itself as a dispute resolution process when appeal processes go wrong, as they often do. ENDNOTES 1. The Uniform Law Conference of Canada was founded in 1918 to harmonize the laws of the provinces and territories of Canada and, where appropriate, the federal laws as well. 2. The author was a member of the steering committee and chair of the sub-committee tasked with considering and reporting to the working group of the DALP on appeals-related issues. 3. See R v Chisholm, 2012 NBCA 79 at para 6, HL v Canada (Attorney General), 2005 SCC 25 at paras 180–181, R v W(G), 1999 3 SCR 597 at para 8; R v Smith, 2004 SCC 14 at para 21. 4. 1993 2 SCR 53. 5. Ibid at 69–70. 6. RSC 1985, c 17 (2nd Supp). 7. SQ 2014, c 1. 8. We are not here discussing judicial review of arbitration awards on issues such as jurisdiction, due process and other such grounds. It should be noted that, even with reference to judicial review, only grounds of judicial review that are found within the applicable arbitration Act are available: see J Kenneth McEwan, Q.C., & Ludmila B Herbst, Q.C., Commercial Arbitration in Canada: A Guide to Domestic and International Arbitrations (Toronto: Canada Law Book) (loose-leaf).


Jan Advocate 2017
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