December 2, 2016

Are Arbitration Clauses Enforceable? Of Course Says Court of Appeal

The Court of Appeal for Ontario recently released a decision in Haas v. Gunasekaram re-confirming the obvious: arbitration clauses are enforceable. The case is about a simple, broad arbitration clause in a shareholders agreement for a restaurant business.  One of the shareholders alleged fraud.  Fraud does not oust an Arbitrator’s jurisdiction.  The Supreme Court of Canada…

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November 20, 2016

R. v. Jordan, Delay and Arbitration

The Supreme Court of Canada released a seminal decision on the Charter right to a trial within a reasonable time: R. v. Jordan. Already murder charges are being stayed for delay. Ministers of Justice and Crown Attorneys across Canada are reviewing the status of serious charges as priority case above all others.  Criminal law comes…

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August 12, 2016

Hassell Arbitration enhances rules on Arbitrator Appointment

In addition to being the principal arbitrator at Hassell Arbitration, Mick Hassell is frequently retained to act as counsel at arbitrations given his experience as a trial lawyer at Hassell Trial Counsel. Since Mick frequently proposes Hassell Arbitration’s rules as the process to resolve disputes when acting as counsel, it is necessary to go outside of…

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April 29, 2016

For the Ontario Paralegal Association

Here are my letter and the slides from the April 30, 2016 presentation to the OPA membership: 160430 MH letter from Hassell to OPA re paralegals, advocacy & arbitration Hassell Arbitration presentation to OPA (slides) Further resources for paralegals interested in learning more about arbitration: Arbitration vs. Court What you need to know in order to arbitrate  An overview…

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April 2, 2016

Fixed Fee Arbitration

Hassell Arbitration is delighted to introduce a new fixed fee schedule for arbitrations. Our fee schedule combined with the benefits of arbitration make us an attractive alternative to Small Claims Court and the Simplified Procedure. Click here to learn more about our fixed fee schedule.  

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March 5, 2016

Legal Fee Disputes: Arbitration instead of Court or an Assessment

Here’s an article on arbitrating legal fee disputes: Hassell Arbitration on Arbitrating Legal Fee Disputes Where things currently stand: The Small Claims Court, Superior Court and Divisional Court are becoming more and more reluctant to deal with legal fee disputes, preferring to send legal fee disputes to an assessment. The Small Claims Court will not hear…

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March 3, 2016

Law Society Update on Paralegals in Arbitration

The Law Society of Upper Canada says that it was never the intention of section 6 of By-Law 4, which addresses a paralegal’s scope of practice, to include arbitrations under Ontario’s Arbitration Act, 1991 and Ontario’s International Commercial Arbitration Act. The Law Society further indicates that the Law Society is examining the issue of whether and how…

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February 27, 2016

Law Society says Paralegals Cannot Represent Clients before Certain Arbitral Tribunals

In late May 2015, Hassell Arbitration asked the Law Society of Upper Canada whether a paralegal can represent a party in an arbitration pursuant to Ontario’s Arbitration Act, 1991. After multiple follow-ups over the course of several months, the Law Society’s answer arrived February 2016: no. The Law Society also indicated that a paralegal cannot represent a party…

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February 11, 2016

Arbitrating Small Commercial Disputes

Small and medium size businesses can’t afford to litigate in Court.  Arbitration presents an opportunity to deal with small business disputes fast and cost-effectively. If you want to set yourself apart from the crowd by offering clients representation in a system that works, agree to arbitrate small commercial disputes. By the end of the evening,…

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November 30, 2015

Arbitration Awards up to $25,000 Can be Enforced in Small Claims Court

Arbitration awards can be enforced in Small Claims Court, says a recent ruling from the Divisional Court. The Divisional Court reinforces the importance of paralegals in making the “justice system more accessible” and describes arbitration in relation to the Small Claims Court as “another parallel process also designed to provide increased access to justice”. Michael Hassell…

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November 11, 2015

Employment Arbitration

Labour arbitration abounds.  Employment arbitration is underdeveloped. Employers and employees are missing out.  Big time.  Arbitration certainly has its pros and cons, but in the world of employment law, the pros outweigh the cons. I am confident that any employment lawyer would prefer litigating their cases before an arbitral tribunal than before a Court due to reasons of procedure.…

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November 2, 2015

Arbitration and Shipping Containers

Each year about 10,000 shipping containers, each weighing anywhere from 5,000 to 55,000 lbs., fall overboard during ocean transport. In the process, goods are lost or damaged, and falling containers have the potential to seriously injure or question the safety of personnel transporting the containers. The International Convention for Safe Containers (“Convention”), adopted by Canada…

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October 29, 2015

Arbitrating Fence Disputes

Have a fence issue with your neighbor? Arbitration may be the answer. This may be news to some: the Line Fences Act (the “Act”) does not address boundary issues between adjoining properties. The Act only addresses fence issues, more specifically, line fence issues. Line fences are fences that mark the boundary between properties. The purpose of the…

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October 17, 2015

An Overview of Ontario’s Arbitration Act, 1991

Party Autonomy The guiding principle behind Ontario’s Arbitration Act, 1991 (hereinafter the “Arbitration Act”) is party autonomy. Parties resolving disputes privately are able to design just about any process they want, subject to minimal Court oversight. Arbitrations in Ontario The Arbitration Act applies to domestic arbitrations in Ontario unless another act applies. For example, the…

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October 5, 2015

Sample Arbitration Clause

Concise, or short and sweet is the way to go. With thanks to our colleague, Arbitrator Hari Balaraman, here’s our sample arbitration clause: Should any dispute arise out of or in relation to this contract, the parties agree to confidential, binding arbitration in accordance with Hassell Arbitration’s rules, available online at: Click here to…

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October 1, 2015

Michael Hassell acts as Amicus Curiae in Divisional Court on Arbitration Appeal

I went to Divisional Court on September 30, 2015 to watch an appeal that will affect private arbitrations and access to justice across Ontario. The issues on appeal are discussed in an earlier blog post here and relate to whether an arbitration award can be enforced in Small Claims Court and if so how. Presiding was the Honourable…

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September 30, 2015

Enforcement of an Arbitration Award in Small Claims Court: Appeal Today.

Can you enforce an arbitration award in Small Claims Court (claims up to $25,000)?  If so how? This question is of great interest to self-reps and paralegals interested in arbitration as an alternative to Small Claims Court. A decision of the Small Claims Court in Evergreen Solutions v. Gemma Depositario says you can enforce in Small…

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August 24, 2015

Arbitration Seminars – Fall 2015

What do you need to know to take a litigation case to arbitration? We are hosting arbitration seminars to help lawyers and paralegals appreciate how to take a civil/commercial litigation case to arbitration instead of Court. Arbitration is win-win for representatives and clients alike and the explosion of ADR makes arbitration a compelling practice area…

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August 17, 2015

Healthcare Arbitration

Healthcare Arbitration is grabbing the attention of patients, healthcare professionals and healthcare organisations. Arbitration respects the extremely private nature of healthcare issues due to arbitration’s confidentiality. The speed and simplicity of arbitration permits continued relationships without the strain of other dispute resolution mechanisms such as Courts and complaints.  And the cost-effectiveness is unbeatable. Click here to…

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July 30, 2015

I’m Sorry. Arbitrations and Apologies.

It is ok to apologise before an arbitration, unless there is a limitation period issue or criminal or quasi criminal implications. Subsection 2(3) of Ontario’s Apology Act states the following: Despite any other Act or law, evidence of an apology made by or on behalf of a person in connection with any matter is not…

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July 21, 2015

Convert Litigation to Arbitration

It is prohibitively expense to go to Court for cases worth $100,000.00 or less. Back in 2007, well-respected civil litigation lawyer Ron Slaght said it it may not be worth taking a case to court unless more than $100,000.00 is at stake. As of 2007, the Toronto Star was reporting that a 3-day trial was…

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July 17, 2015

Tim McGraw Named “Country Arbitrator of the Decade” by Hassell Arbitration

Tim McGraw was bestowed the honour of “Country Arbitrator of the Decade” by Hassell Arbitration for his work implementing arbitration clauses in various agreements on his Shotgun Rider Tour, such as the one featured here (search for or scroll down to “arbitration” for the arbitration clause). In the photo below, Chris Jones, Director of Business Development at…

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July 5, 2015

Time is Money

One of Ontario’s top Judges, Justice David M. Brown wrote an exceptional article on how to improve the civil justice system.  You can review it by clicking here. Recommendation number 1 of a list of 5 recommendations is to to adopt a “front-end assignment of trial dates” system.  What this means is that a trial date…

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July 2, 2015

Lawyers: it’s time to arbitrate!

It is highly recommend that lawyers review their list of active client matters and consider which cases would be better off in arbitration rather than Court. Settling things through negotiation is best, mediation is second best, and for those cases that just won’t settle, arbitration may be better than Court. Please see some of the main…

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June 26, 2015

Arbitrating Legal Fee Disputes

Beyond negotiation and mediation, when it comes to solving legal fee disputes, there are 3 options: 1. Court 2. Assessment; or 3. Arbitration Of these options, arbitration is an under-utilized opportunity for lawyers, paralegals and clients. For a detailed discussion of why arbitrating legal fee disputes is best for lawyers, paralegals and clients, please click here.

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June 19, 2015

How mediators can add tremendous value when the parties don’t settle completely

Sometimes a case just won’t settle, but mediators can still add tremendous value. The way to do so is by keeping the productive aspects of the mediation going beyond the mediation. Here’s how: 1. Work out an agreement on the issues in dispute for trial; 2. Work out an agreed upon statement of facts for trial; 3.…

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June 18, 2015

Paralegals Can Represent Clients in Arbitration

ADR is growing and the Paralegal Rules of Conduct mandate that paralegals shall consider ADR when appropriate and to pursue ADR if instructed.  Arbitration is one of the most common forms of ADR and the future of arbitration is full of opportunity as clients look for out of Court dispute resolution. The time to seize these opportunities…

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June 17, 2015

Arbitration and Consumer Protection

It is time to reform the Consumer Protection Act to respect consumers when it comes to arbitration. How do the Arbitration Act, 1991 and the Consumer Protection Act, 2002 interact? Unlike a business agreement where arbitration of all future business disputes can be mandatory, a consumer agreement cannot include a clause that mandates arbitration for…

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June 16, 2015

Draft Addition to Clarify Paralegal Scope of Activities in Arbitrations

We’ve drafted a proposal to update section 6 of by-law 4 to clarify a paralegal’s scope of practice in arbitrations. All that is needed is one definition.  We propose the following definition: “tribunal established under an Act of the Legislature of Ontario” includes an arbitral tribunal pursuant to the Arbitration Act, 1991 but does not include…

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June 15, 2015

Arbitration vs. Court – A Comparison Table

The main difference between arbitration and Court is party autonomy.  In arbitration, the parties call the shots on how the case is run.  In Court, the Court determines how the case is run. Courts have an excellent track record in achieving justice.  Judges and Juries do a great job.  Massive litigation such as class actions should be…

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June 15, 2015

Why Arbitrate? 17 years later.

Why Arbitrate?: Ontario’s Recent Experience with Commercial Arbitration by Randy A. Pepper is one of the best articles on commercial litigation. The article appeared in the winter 1998 edition of the Osgoode Hall Law Journal.  In 1998, Mr. Pepper wrote about the advantages of arbitration in light of the Arbitration Act, 1991 and the International Commercial…

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June 14, 2015

Arbitration Law

What law do you need to know if you are going to be self-represented or you are a paralegal or lawyer going to arbitration? 1. The applicable Arbitration Act. For Ontario, click here for an overview of the main Arbitration Acts. 2. The substantive law applicable to the case it relates to liability and damages.…

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June 12, 2015

Arbitration in Ontario

This is a brief overview of the statutory framework of arbitration in Ontario to help clarify which legislation will govern an arbitration conducted in Ontario. Arbitration Act, 1991: The Arbitration Act applies is for domestic arbitration and applies unless another statute says it does not. The Arbitration Act sets the ground rules for arbitrations in…

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June 10, 2015

4 page rule book or 1,980 page rule book?

If given the choice, would you prefer a 4 page rule book or a 1,980 page rule book? Hassell Arbitration’s rules are 3-4 pages long.  By comparison, leading texts on civil procedure are a couple of thousand pages long. In fairness, the civil ligation texts have helpful commentary and case law and we commend the authors of…

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June 10, 2015

Paralegals and Arbitrations where more than $25,000 is at stake

The following is a discussion of some considerations for paralegals considering arbitration where more than $25,000 is in dispute: Competence – If a matter is above $25,000, a paralegal must be competent to handle it. Many tribunals including arbitral tribunals have no $25,000 limit and the paralegal must appreciate with this increased amount comes additional…

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June 9, 2015

Hassell Arbitration Opens its Doors to Paralegals

Hassell Arbitration welcomes paralegals to represent clients in arbitrations of business disputes. Unlike the Small Claims Court, Hassell Arbitration’s rules have no $25,000 monetary limit.  Paralegals can select from our rules for claims up to $50,000 or our rules for claims over $50,000. Paralegals in arbitration is an emerging issue and subject to any change in the…

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June 8, 2015

High-Low Arbitration or Bracketed Arbitration

High-low or bracketed arbitration is when the parties agree that the award should fall within a range of outcomes. Most trials and arbitrations deal with liability and damages.  The parties may agree on one or the other. If the parties don’t agree on liability, that is an issue for arbitration.  If liability is established, the outcome…

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June 8, 2015

Baseball Arbitration

Baseball Arbitration is where both sides submit a proposed outcome and the arbitrator decides which one is best. This forces the parties to put forward reasonable proposals for consideration and gives them greater control over the outcome. Night Baseball Arbitration is where the parties don’t share their proposals with the arbitrator and instead the arbitrator…

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June 3, 2015

Civil Trial Checklist

Our friends over at Hassell Trial Counsel have released a civil trial checklist to help self-represented parties, paralegals and lawyers prepare for civil trials. While a trial in Court is more complicated to prepare for than arbitration, the trial checklist touches on a lot of the key concepts that are required to prepare for arbitration,…

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June 1, 2015

Paralegal Rights of Appearance at Arbitration

There are tremendous opportunities for paralegals in arbitration. Rule 3.02(12) of the Paralegal Rules of Conduct states that paralegals “shall consider the use of alternative dispute resolution (ADR) when appropriate, inform the client of ADR options, and, if so instructed, take steps to pursue those options”. Paralegal regulation is fairly new.  Arbitration is growing in popularity.  The…

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May 28, 2015

Paralegals and Arbitration

Can a paralegal represent a party in an arbitration? Ontario’s Paralegal Rules of Conduct define “tribunal” to include “arbitrators”. Section 6 of by-law 4 indicates that a paralegal can represent a party before a tribunal established under an Act of the Legislature of Ontario. The Arbitration Act, 1991 deals with arbitral tribunals including jurisdiction of arbitral…

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May 28, 2015

Back in 1991, when the Arbitration Act was introduced

Going back to Hansard transcripts, here’s what the government said when it introduced the Arbitration Act, 1991: STATEMENT BY THE MINISTRY ALTERNATIVE DISPUTE RESOLUTION Hon Mr Hampton: One of the commitments this government has made to the people of Ontario is to improve access to justice in the province. The fulfilment of this commitment will…

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May 27, 2015

Lawyers Hate the Rules of Civil Procedure

If you are reading this and you are a lawyer, ask yourself the following question: Do you hate the Rules of Civil Procedure? If you answered this question in the affirmative, you are not alone. There are much simpler ways to resolve disputes.  

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May 24, 2015

Entrepreneurs Hate the Rules of Civil Procedure

It’s not surprising why: the Rules of Civil Procedure result in an incredible amount of lost time, wasted effort and squandered money. Entrepreneurs like to get things done and make things happen.  Fast, efficient and cost-effective. The Rules of Civil Procedure are designed to bog down civil litigation. Rule 1.04 sounds great: “These rules shall…

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May 18, 2015

Litigation Island

Litigation Island is where litigation goes to hang out.  It is separated from the real world.  Not much happens on Litigation Island, even though it consumes a lot of your time.  Inhabitants speak of “Litigation Island time”. For some reason, it sounds like the place to go until you get there. It costs a heck of a…

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May 13, 2015

When mediation fails, arbitrate to close the gap

Mediation is good.  It’s a great opportunity to close off litigation. Too often, mediation results in offers from both sides that are not accepted.  We sometimes say that the gap is too big to settle. A second mediation might or might not close the gap.  Arbitration will close the gap.  In fact, you can direct the arbitrator to make…

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April 29, 2015

What to do if a claim is between $25,000 and $50,000

Arbitrate. These claims tend to be too large for Small Claims Court, which has a $25,000 maximum. These claims also tend to be too small to be cost-effective in the Superior Court’s so-called “simplied procedure” (Rule 76). Rather than reduce the claim to $25,000 or get tangled up in the Court’s “simplified procedure”, check out…

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April 26, 2015

Want to settle a bunch of litigation cases this month?

Nothing drives settlement like a trial or arbitration date. To settle a litigation case this month, all you need to do is commit to Hassell Arbitration’s process if your case does not settle by the end of the month. Click here to arbitrate now Complete a notice to arbitrate and send it to us indicating you would…

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