Notes from the Section
Chair's message
By Anne Gottlieb, Chair ADR 2009-2011
The impetus and the drive are ever present – to continue to search for ways to successfully bring parties to a resolution of their issues, in a cost effective, timely and enduring manner. It’s against this backdrop that the CBA ADR Executive has flourished.
Now available on the CBA PD website: The impact of apologies on the resolution of conflict, with the assistance of legislation or not - Audio replay
By Andrée Gosselin, Commission de lésions professionnelles du Québec, Montreal
Apologizing can help parties avoid the emotional burden and financial cost of litigation and re-establish a dialogue. John Peter Weldon and George Derwin discuss the 12 messages to avoid and the five rules to follow when presenting an apology in this ADR Section webinar, originally presented on April 27, 2011.
Join the CBA ADR Section at the Canadian Legal Conference in Halifax
At the upcoming CLC in Halifax, the ADR Section will present Proportionality: The Effective Use of Dispute Resolution, on August 16. Hear top Canadian practitioners share insights into the latest trends in ADR, including mediation, arbitration, ethical issues and cross-Canada developments.
2011 Award of Excellence in Alternative Dispute Resolution: Barry Fisher
By Deborah C. Anschell, ADR Chambers, Toronto
The Ontario Bar Association, ADR Section, is pleased to announce that Barry B. Fisher, arbitrator and mediator, is the recipient of the 2011 Award of Excellence in Dispute Resolution.
Articles
Consumer arbitration clauses and class actions – the latest from the Supreme Court
By Michael Schafler, Fraser Milner Casgrain LLP, Toronto
Many consumer contracts of adhesion contain arbitration and waiver of class action clauses. But are these enforceable? Not necessarily, according to the Supreme Court of Canada decision in Seidel v. TELUS Communications Inc.
Lawyers' conduct not protected by mediation confidentiality
By Kathleen Kelly, arbitrator, mediator, lawyer, Toronto
In Law Society of Upper Canada v. Ernest Guiste, a hearing panel of the Law Society ruled that lawyers’ conduct during the mediation process is subject to the Rules of Professional Conduct.
Law Society of Upper Canada v. Ernest Guiste
By Lawrie Cherniack, C. Arb, C. Med, Chair of the ADR Sub-Section of the Manitoba Bar Association, Winnipeg
Lawyer misconduct is something with which a law society must concern itself. We owe a duty as lawyers to conduct ourselves courteously in all respects.
Year-end Message from the CBA ADR Chair
By Anne Gottlieb
Wow – how quickly the years pass!
When I came on board the CBA ADR Executive in 2008, I intended to serve as Secretary/Treasurer and was instead catapulted to Vice Chair of the National Section. Although I was surprised by the decision, there was no hesitation on my part. I was familiar with the workings of the CBA ADR Executive, as I had participated on it, when I served as Chair of the OBA ADR Section. What I didn’t know, in 2008, was that I would in fact be spending 2 years as the Chair of the CBA ADR Section. And it is with great pride that I say that the second year as Chair has surpassed my expectations as well as my experiences as Chair during my first year.
Canada’s ADR landscape is varied. There are parts of the country that have benefitted from ADR for nearly 20 years. There are regions where private practice for mediators and arbitrators thrive. There are other jurisdictions where the majority of the process is in the hands of the judiciary – known as JDR. There is mandatory mediation in parts of the country, and there are regions where colleagues face resistance when they recommend mediation.
The impetus and the drive are ever present – to continue to search for ways to successfully bring parties to a resolution of their issues, in a cost effective, timely and enduring manner. The spectrum of methods available within ADR continues to evolve and grow. The need to guide clients to a more satisfying and proportionate process is being dictated, by clients.
It’s against this backdrop that the CBA ADR Executive has flourished. In our monthly telephone conference calls we’ve learnt from one another. We’ve explored what is happening in many different practice areas and have shared provincial experiences. We have been able to disseminate information to the ADR provincial branches and bring forth new ideas at the national level.
We are not the largest of the CBA sections. At last count - we numbered 1676 members in Canada. But we are experiencing tremendous growth and we are receiving countless inquiries, about the work that we do. Our Executive is comprised of the provincial Branch Chairs, the Table Officers and the 5 Members at Large. We are, not surprisingly, a collaborative group and a determined executive. And we have all been very active, very involved and very busy, lately!
I believe that the role of the CBA ADR Executive this year has been unprecedented, serving as a resource to the provincial branches in a way that it has not previously. We have made efforts to reach out and have a truly national presence, and we have provided support to our Provincial Chairs as they take on their local ADR challenges. Our in-person meeting in October was held in Montreal, we will be presenting an ADR program in Halifax in August, and we will be holding our CBA in-person meeting in Vancouver in October 2011. We have received funding approval from CBA for these initiatives because we want to be accessible to our membership and because we have made a commitment to support local ADR committees. This is one of our greatest achievements, and one for which I will take some credit, personally.
Of note, is the support we offer to our Provincial Chairs as they take on their local ADR challenges. One such example was OBA ADR’s attempt to defeat a Resolution that was to appear before OBA Council in December. Ultimately it was withdrawn – at the 11th hour. Thank you to all those who spent time writing and sending emails, and those who took the lead on this matter, and made presentations at the OBA Council.
In the past few months, Pat Paradis, David Merner and Laura Bruneau provided a very crucial ADR perspective to the CBA’s working group when participating in the CBA consultation process with the Canadian Human Rights Tribunal. David and Pat were also instrumental in sharing their expertise with various provincial representatives when the Canadian Human Rights Tribunal approached provincial organizations to participate in consultations. In this manner – ADR was able to deliver consistent ADR messaging – at all consultation levels. This was a great coup for ADR – and many thanks to all for their insight, expertise, and many hours.
In April 2011 the ADR Section presented a terrific online CPD program titled The Impact on Dispute Resolution of Effective Apology – With or Without Legislation. Designed and co-ordinated by Ellen Desmond and Andre Gosselin, and featuring presentations from George Derwin and John Peter Weldon, this session broke the attendance record for the ADR Section.
The program combined overviews of legislation, in Canada and elsewhere with an analysis of an actual apology, in order to assess the highlights of an effective apology. The program was informative and interactive and I extend my congratulations and thanks to our speakers, and to our organizers.
As we continue to learn from one another, I have been informed that 2 provinces have expressed an interest in starting a local ADR award. Following Ontario’s lead (where there has been an ADR Award of Excellence for over a dozen years), I am pleased that more local and national ADR practitioners will be similarly honoured. I look forward to reading future articles about these award recipients.
I must again commend the work of our newsletter co-editors, Moira Goodfellow and Rebecca Morse. For the past 2 years, they have produced excellent editions of our newsletter Possibilities. We have received many compliments on our last edition, particularly our cross-Canada comparison chart. It provided a snapshot of the ADR landscape that was much talked about and will be emulated by some other Sections. Thanks to Laura Bruneau for the inspiration, and to all the Provincial Chairs who contributed the information.
I cannot help but be excited about our most ambitious endeavour to date. The CBA ADR Section will be presenting a session at the CBA CLC in Halifax on August 16th titled Proportionality and the Effective Use of ADR. It will be an interactive, whirlwind 3-hour session. Please join us in Halifax. Support ADR, and meet some of the ADR Executive!
Many thanks to the Co-Chair of the Halifax CLC ADR Subcommittee, Michael Schafler, and to the subcommittee comprised of Jacinta Gallant and Laura Bruneau, with input from Pat Paradis and David Merner. The sub-committee has been working since last spring to make this program exciting and unique. This marks the ADR Section's first presentation at a CBA CLC – click here to see our exciting list of speakers! Thanks to James Musgrove for co-ordinating the marketing initiative in the Atlantic Provinces.
I want to extend my congratulations to Ellen Desmond, who will be taking on the role of Chair next year, and to Paul Harquail who will serve as Vice Chair. They have made enormous contributions to the section, and I look forward to their continuing leadership.
I also want to welcome aboard Catherine Bisson who stepped into the role of CBA liaison to our section, in January. It is not an easy feat, to join such a busy and active Section mid stream. I am very appreciative of Catherine’s energy, her enthusiasm, and her efforts on behalf of the CBA ADR Section.
I am very thankful to have had the opportunity to work with such a capable, dynamic and inspiring executive committee, and I look forward to continued successes for the CBA ADR Section!
I wish everyone a great summer. See you in Halifax, in August.
Anne Gottlieb
Anne Gottlieb, Mediation At Work Ltd - agottlieb2011@gmail.com, Mediation
By Andrée Gosselin
On April 27, 2011, the CBA-ADR Section held a webinar titled: The Impact of Apologies on the Resolution of Conflict, with the Assistance of Legislation or Not. This webinar was presented by John Peter Weldon from Quebec and George Derwin from Manitoba and very much appreciated by all attendees.
A review of the reasons cited for litigation demonstrates that there are two major motivations why clients pursue litigation: (i) to obtain explanations or apologies and (ii) to ensure correction for the future.
While most anglophone countries have enacted legislation providing for apologies, four provinces in Canada still have not adopted such legislation. Yet apologizing can avoid the emotional burden and financial cost of litigation and re-establish a dialogue between the parties.
However, apologies have to be presented in an adequate format. This webinar revealed the 12 messages or expressions to avoid when presenting an apology and the five “R” rules to follow for appropriate apologies: recognition, responsibility, regret, non-recurrence and restitution.
To learn more about how to craft an effective apology with your client and the consequences of not getting it right, you may purchase the recording from the CBA PD website.
Andrée Gosselin is an adjudicator at the Commission de lésions professionnelles du Québec in Montreal.
Join the CBA ADR Section at the Canadian Legal Conference in Halifax | August 14-16, 2011
The CBA ADR Section is proud to present a session at the CBA Halifax CLC on August 16, 2011, titled Proportionality: The Effective Use of ADR. The program will comprise four panels, highlighting mediation, arbitration, ADR ethical issues and a Canadian snapshot of ADR initiatives. It will be a dynamic and informative session and we encourage both ADR practitioners and civil litigators to attend!
The first panel will focus on mediation, and participants will receive practice tips relating to mediation of insurance cases from counsel Jean McKenna and Ray Wagner. Anne Gottlieb will serve as the moderator.
The second panel will develop a fact scenario to highlight the evolution of a complex arbitration. The panel will feature Michael Schafler, Jennifer Ross-Carrière and J. Brian Casey.
There will be a 45-minute segment on ADR ethics moderated by Laura Bruneau, with panellists Elaine Newman and Pamela Large-Moran. This will be an interactive session with instant polling features available so that the audience can participate directly with the panel.
A final panel will discuss topics including judicial dispute resolution, small claims court mediations, and mandatory mediation, and Jacinta Gallant will make a presentation on collaborative law.
The ADR Section is counting on your attendance and support to make this program a huge success!
Please register for the program, and join us for a lunch buffet following – so that we can continue discussing the exciting developments in ADR happening across the country!
For more details on this program, please visit the CBA CLC website.
2011 Award of Excellence in Alternative Dispute Resolution: Barry Fisher
By Deborah C. Anschell
The Ontario Bar Association, ADR Section, is pleased to announce that Barry B. Fisher, arbitrator and mediator, is the recipient of the 2011 Award of Excellence in Alternative Dispute Resolution. Barry was toasted and roasted at a dinner held in his honour on June 1, 2011 in Toronto.
The ADR Award of Excellence recognizes exceptional contributions and achievements in Alternative Dispute Resolution in the following areas: academic excellence, development of excellent ADR practices, enhancement of the practice of ADR, and leadership in the bar or the government or the Law Society of Upper Canada or OBA in relation to ADR issues, legislation and practice.
Past award winners include: Mr. Justice Robert N. Beaudoin, Paul Iacono, Chief Justice Warren K. Winkler, Anne E. Grant, Allan J. Stitt, Leslie Macleod, Rick Weiler, Dr. Barbara Landau, Kathleen Kelly, Donald Short, Madam Justice June Maresca, Professor D. Paul Emond and Genevieve A. Chornenki.
Barry Fisher has excelled in all four categories enumerated above. Barry is a prolific writer with respect to ADR, and a constant presence at continuing education seminars. He is best known for authoring the Wrongful Dismissal Database, a computerized database of over 3,000 reported wrongful dismissal cases dealing with the issue of reasonable notice, published by Thomson Carswell. Beyond the Database, he is also the author of countless papers dealing specifically with mediation and arbitration.
Barry has held senior positions on the executive of the OBA ADR Section, including program coordinator (2003-2004), Vice-Chair (2004-2005) and Chair (2005-2006). Barry was also the Chair of the Sub-Committee on Summary Judgment, OBA Taskforce on Wrongful Dismissal, Submissions to the Honourable Warren K. Winkle, Chief Justice of Ontario. Currently, Barry is a member of the executive of the Labour & Employment Section of the OBA.
Barry has been certified by the Law Society of Upper Canada as a Specialist in Civil Litigation. He is referred to as a “leading practitioner in employment law” by Lexpert. He has also been referred to as a leading ADR provider in Best Lawyers in Canada for 2008, 2009 and 2010. Barry has the respect of his peers and clients regarding his employment mediation practice.
Barry can be described as a pioneer in developing one of the leading employment practices in Canada. He was called to the Ontario Bar in 1979 and has been an ADR practitioner since 1987. His practice focuses on both labour and employment law matters.
Throughout his career as an ADR practitioner in the employment field, Barry has shared his knowledge with students and fellow practitioners. Barry has performed as a mediator for the Canadian National Mediation Advocacy Competition. He served as a coach for the Lawyer as Negotiator course at Osgoode Hall Law School. He was a facilitator for the ABA Section of Dispute Resolution Program held in Toronto in 2006. He was a co-organizer, speaker and coach at Negotiations and Mediation in the Employment Industry, a two day course sponsored by Osgoode Hall Law School in 1998. In sum, Barry has immensely contributed to the development and growth of ADR in Ontario.
Deborah C. Anschell practises at ADR Chambers in Toronto.
By Michael Schafler
Since the late 1980s, private arbitration has been thriving across Canada. This path was paved by a change in judicial attitude towards acceptance of arbitration as a true alternative to litigation, coupled with legislative reform across the country. Consequently, with some exceptions, parties who have agreed to arbitrate a dispute will now be held to their bargain.
Many consumer contracts of adhesion contain arbitration and waiver of class action clauses. But are these enforceable? In provinces like Alberta, Ontario and Quebec, both waivers of class proceedings and arbitration clauses in consumer contracts are inoperative due to statutory rules. These legislative reforms followed (or coincided with) decisions such as Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, to the effect that, in the absence of an express legislative prohibition, all arbitration agreements, even those in the consumer context, are to be enforced by the courts.
British Columbia does not have such express language; the language is, at best, debatable. Yet, the Supreme Court of Canada has recently ruled that the language was sufficient to protect the consumer. In an unusually stinging dissent, four of the nine judges criticized the majority, arguing that its opinion represented “an inexplicable throwback to a time when courts monopolized decision making and arbitrators were treated as second-class adjudicators.”
Such language, alone, merits a closer look. This paper examines both the majority and dissenting reasons, and comments on the various arguments. We conclude that, while the apparent schism in the high court as to the role of arbitration viewed through the prism of access to justice may, on its face, be somewhat troubling, nothing much has changed: it is now clear that in the consumer context an arbitration agreement is as valid as in any other commercial context, so long as the provincial legislature has not enacted specific legislation to override the parties’ bargain.
Read the full article 
Michael Schafler is a partner and co-head of the National ADR Group at Fraser Milner Casgrain.
Lawyers' conduct not protected by mediation confidentiality
By Kathleen Kelly
This article was originally published in the April 2011 edition of Keeping Tabs, the official newsletter of the Ontario Bar Association’s Civil Litigation Section.
A hearing panel of the Law Society, in a recently released tribunal decision, Law Society of Upper Canada v. Ernest Guiste [2011 ONLSHP 24 (CanLII)], has ruled that lawyers’ conduct during the mediation process is subject to the Rules of Professional Conduct. In arriving at its decision the panel found that the provision of confidentiality contained in an agreement to mediate was for the benefit of the parties and was not intended to protect lawyers from allegations of misconduct.
That lawyers should always conduct themselves in a professional manner is not the issue, or concern. My concern with the decision, as it relates to the lawyers' conduct in mediation, is based on three issues:
- that the LSUC accepted a complaint about the conduct of a lawyer during a mediation process that was bound by a confidentiality provision in the agreement to mediate;
- that the complaint was from one lawyer about the conduct of another lawyer, during the mediation process that was bound by an agreement on confidentiality; and
- that the hearing panel has ruled that the Rules of Professional Conduct are mandatory, without exception, even in the context of communications and conduct in a mediation process bound by an agreement on confidentiality.
The lawyer, who was the subject of findings of professional misconduct, was alleged to have committed six acts of professional misconduct. Two of the six allegations were about the lawyer’s conduct and choice of words during a mediation session, one of the two allegations was dismissed. Three of the six allegations, including the two involving the mediation session, stemmed from one matter where the lawyer and the opposite counsel acted for parties adverse in interest.
The allegation with respect to the conduct during mediation is:
- On June 21, 2007, during a mediation in the matter of D.L. v. N. Ltd. et al., the respondent failed to be courteous, civil and act in good faith by using sexually explicit, rude and profane language, and raising his voice at a mediation session, contrary to Rule 4.01(6) of the Rules of Professional Conduct:
(6) A lawyer shall be courteous, civil, and act in good faith to the tribunal
and with all persons with whom the lawyer has dealings in the course of
litigation.
In my reading of the decision, the panel had sufficient grounds to make findings against the lawyer in three of six of the allegations, without having to consider the lawyer’s conduct in the mediation session. The panel’s decision to first consider and second rule as it did, has placed the integrity and durability of the confidentiality protection during the mediation process in jeopardy. This in turn puts the utility of the mediation process in question. In ruling as it did, the panel has conceivably placed every lawyer and every mediator who also happens to be a member of the LSUC in the untenable position of having to report a lawyer whose conduct in the mediation process is contrary to the Rules of Professional Conduct.
The courts have protected the principle of confidentiality to the point of making a finding of contempt where it was breached. See Rogacki v. Belz, 2003 CanLII 12584 (ON C.A.), (2003), 67 O.R. (3d) 330, where Justice Abella wrote:
[38] The failure to protect confidentiality could profoundly prejudice the effectiveness of mandatory mediation. It is difficult to see how anyone would agree to be open and frank in discussions designed to effect settlement – discussions they have no choice about participating in – when there is no protection for the confidentiality of the process. (...)
[47] Mandatory mediation is a compulsory part of the court’s process for resolving disputes in civil litigation. Wilful breaches of the confidentiality it relies on for its legitimacy, in my view, represent conduct that can create a serious risk to the full and frank disclosures the mandatory mediation process requires. It can significantly prejudice the administration of justice and, in particular, the laudable goal reflected in Rule 24.1 of attempting to resolve disputes effectively and fairly without the expense of a trial.
In the case of Rudd v. Trossacs Investments Inc., 2006 CanLII 7034 (ON S.C.D.C.), 79 O.R. (3d) 687, which involved the issue of disclosure of the mediator’s notes and records, the Divisional Court upheld the principle of confidentiality. On behalf of the court, Justice Swinton, wrote:
[32] The second condition requires a determination that confidentiality of communications during the mediation is essential to the functioning of the mediation process in which the parties were engaged. In order for mediation to succeed, parties must be assured of confidentiality, so that discussions can be free and frank...
Without the protection of confidentiality, mediation will lose many of its benefits and will be nothing more than a step in the litigation process that parties must take to get a trial date.
The matter is not yet concluded as the penalty hearing has not occurred, and thus it is not known yet whether this decision will be appealed.
Kathleen Kelly, arbittrator, mediator, lawyer - kellyadr@rogers.com.
Further case comment: Law Society of Upper Canada v. Ernest Guiste
By Lawrie Cherniack, C. Arb, C. Med
I have read Kathleen Kelly’s article on the Guiste decision and have read the decision itself. If a Manitoba lawyer may make a comment, the decision does not upset me.
The only evidence from the mediation heard by the LSUC panel was the way in which the lawyer conducted himself. The particulars of the mediation – what each side was willing to concede or offer – were not part of this hearing except as they related to the lawyer's conduct.
Lawyer misconduct is something with which a law society must concern itself. We have a duty as lawyers to conduct ourselves courteously in all respects – not simply in court, but in day-to-day relations with other counsel. We owe a duty to the public in general.
We are professionals, and the way in which our professional behaviour is monitored is through our adherence to our Code of Professional Conduct.
Consider the LSUC's Rule 6.01(1): “A lawyer shall conduct himself or herself in such a way as to maintain the integrity of the profession.” Or 6.03(1): “A lawyer shall be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice.” Or 6.03(5): “A lawyer shall not in the course of professional practice ... communicate to ... another legal practitioner, or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.”
It is sad that such common-sense rules of professionalism have to be spelled out as they are, and that a lawyer can argue that somehow those common-sense rules do not apply during mediations.
Kelly’s citations from Rogacki v. Belz and Rudd v. Trossacs Investments Inc. fail to move me. Naturally, any negotiations, whether mediated or not, should be confidential and privileged if they are to bring out from the parties their basic interests, and encourage free and frank discussion. With respect, however, the need for free and frank discussion does not excuse discourteous conduct, inappropriate language, and intimidating demeanour by a lawyer acting on behalf of a client.
It is true, as Kelly says, that some of the six allegations did not involve conduct by the lawyer during mediations. I assume that by pointing that out, she means that the lawyer could have been disciplined for misconduct without including the conduct during the mediation sessions. That is, with respect, beside the point. Any misconduct by a lawyer at any time should be subject to disciplinary proceedings.
Section 49.8 of The Law Society Act of Ontario provides specifically for disclosure of privileged or confidential evidence in the course of investigations/hearings into misconduct by lawyers, and provides for the protection of the confidential nature of that evidence other than in the course of the investigation/hearing. It should be no shock whatsoever to any Ontario lawyer that his or her conduct is at all times subject to oversight by the Law Society of Upper Canada, and is not protected by confidentiality or privilege. As a matter of fact, the confidentiality clause in the mediation agreement even suggests that the parties anticipated the partial non-enforceability of the clause itself.
Mediations are not special. They should not be the only kind of activity undertaken by lawyers where lawyers can misconduct themselves. They are no more special with respect to lawyer conduct than any other aspects of the relationship of lawyers to other people.
In one respect, however, mediations are special. As a mediator, I think that mediations impose an even greater responsibility on a lawyer to act professionally and courteously. If “free and frank discussion” should be the hallmark of a mediation, a lawyer should not try to impose his or her personality upon the mediation, and should rather, through professionally courteous conduct, encourage the parties to work things out. Adversarial behaviour – let alone discourteous and unprofessional behaviour – should be out of place during a mediation.
Lawrie Cherniack, C. Arb, C. Med, is Chair of the ADR Sub-Section of the Manitoba Bar Association.
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