October 1, 2015

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

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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 Justice Sanderson.  Counsel for the appellant Gemma Depositario was Brad Teplitsky.  Also present was Paralegal Rick Goodman who acted for Gemma Depositario at arbitration.

To everyone’s surprise, no one appeared for the respondent Evergreen Solutions.  It looked liked it would be an uncontested appeal on an issue with Province-wide implications.

Having done trials and enforcement in both Small Claims and Superior Court and familiar with the Arbitration Act, 1991, I was qualified and granted leave to act as a friend of the Court and make submissions with respect to the enforcement of arbitration awards in Small Claims Court.

To that end, my submissions were:

–  I adopted the reasoning of the Deputy Judge Prattas in Small Claims Court, which reasoning I believe to be accurate;

–  I commented on the growth of ADR, lawyer and paralegal professional duties to consider and implement ADR, access to justice and the intent of Ontario’s Arbitration Act to provide party autonomy.  It is important the self-reps and paralegals be able to enforce claims up to $25,000 in Small Claims Court; and

–  I outlined how arbitration in the instance of this case was used in a creative fashion in order to have a private hearing before an arbitral tribunal as opposed to a public hearing in Court and that doing so was permissible according to the Small Claims Court jurisdiction and rules.

Many thanks to the Divisional Court for letting me speak and to my colleagues Teplitsky and Goodman for their professionalism.

Furthermore, and this is the hallmark of a top-notch advocate, Brad Teplitsky was kind enough to introduce me to the Court and took no issue with me speaking to the issues on appeal and actually welcomed me to do so.  I have complete respect for his style of advocacy and note that he delivered articulate submissions with confidence and conviction.

The appeal decision was reserved and I will post a copy once it is released.

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