CIArb Canada’s 9th Annual Symposium
Valeska Rebello
CIArb Canada’s 9th Annual Symposium took place on Monday September 20, featuring a keynote speech by J. Brian Casey. Casey was presented with the 2021 CIArb Award for Distinguished Service in Canadian Arbitration during the Symposium. CIArb Canada also launched its Arbitration Internship Program for CIArb Fellows who are members of the Canada Branch.
The Symposium opened with a warm welcome from Julie G. Hopkins, Chair of the CIArb’s Canada Branch. Hopkins then introduced Lisa C. Munro, Symposium Co-Chair, to announce the launch of the Arbitration Internship Program.
CIArb’s Arbitrator Pilot Program
Munro introduced CIArb’s Arbitrator Pilot Program – a practical arbitrator training program and the first of its kind in Canada. Munro explained that the program was designed to solve the chicken and egg problem: new arbitrators need arbitration experience to get appointments but need to be appointed to get this experience. This program will serve as an unpaid learning opportunity for new arbitrators.
The program has two models – the Panel Model and the Expedited Procedures Model. The Panel Model offers parties the option to have their dispute decided by a panel of three arbitrators: an experienced arbitrator who is paid for by the parties per their agreement, and two volunteer new arbitrators. The experienced arbitrator will chair the panel, and the disputing parties will gain a panel of three arbitrators for the price of one. The Expedited Procedures Model helps parties with commercial disputes with a value of $5000 to $250,000. One volunteer arbitrator will decide the dispute and will have access to an experienced arbitrator for procedural advice.
How can arbitrators participate in this program? New arbitrator applicants must be Fellows of the CIARb, not previously appointed as arbitrator, and have been accepted by the CIArb Canada New Arbitrator Program Advisory Committee for the New Arbitrator Program to be listed on the CIArb Canada website. Experienced arbitrators must be Fellows of the CIArb, have conducted at least three full arbitration proceedings, and have been accepted by the CIArb Canada Branch New Arbitrator Program Advisory Committee for the New Arbitrator Program.
Brian Casey’s Keynote Speech
After Munro’s presentation of the new Arbitrator Pilot Program, Symposium Co-Chair Christina Doria introduced keynote speaker J. Brian Casey. Doria described Casey as a major influencer in the arbitration community, who has been quoted many times in Supreme Court of Canada decisions. Casey’s keynote, entitled “Court Review of Arbitral Awards – Time for a Serious Reassessment”, focused on two areas where the present state of the law needs to be re-evaluated: appeals and set asides.
Appeals
Casey first began with an analysis of appeals. To what extent, if at all, should local courts be involved in the appeal of an arbitral award where the parties themselves have made no provision for appeals? There is a patchwork of legislation across the country in this area: provinces differ on whether parties can vary the statutory defaults on appeals, which are generally available from domestic awards where there is an “extricable question of law”. While Ontario and Saskatchewan allow parties to contract out of a default provision allowing for appeals from domestic arbitral awards on questions of law, Alberta, New Brunswick, and Manitoba do not. Casey noted that it appears the more the judge thinks the result of the arbitration is wrong, the more the judge will strive to find an “extricable question of law”.
Casey also covered the question of whether the standard of review for an appeal is correctness or reasonableness. In Sattva Capital Corp. v Creston Moly Corp[1] (“Sattva”), the Supreme Court of Canada adopted a reasonableness standard, as minimally intrusive upon consensual arbitration. Although Canada (Minister of Citizenship and Immigration) v Vavilov[2] has muddied those waters,[3] Casey contended that a correctness standard would be a deviation from the Supreme Court’s decision, and would confuse the position of an arbitrator with that of a trial judge.
Casey proposed that the time has come to give full meaning to the concept of party autonomy. In his view, if the arbitration agreement provides for a right of appeal, then there is such a right. If it does not, then there is none. By giving parties the right to choose, such a rule would bring certainty to the arbitral process, provide flexibility regarding the efficiency of the process, and respect the parties’ ability to craft a complete dispute resolution regime for themselves. Casey suggests that the legislature should review this troublesome barrier.
Set asides
Casey then moved on to the issue of set asides, where there are also problems that are within the power of the bar and the courts to fix. In fact, Casey suggested that set asides are more important than appeals because the same wording is used in all domestic acts, international acts, and the New York Convention. Setting aside of an award is entirely different from overturning it on appeal; set aside challenges the validity of the arbitration process itself. Casey also distinguished between set asides and judicial reviews, the latter being a public law remedy dealing with statutory tribunals and public officials. Judicial review cases such as Vavilov and Dunsmuir v New Brunswick[4] are continually referred to in set aside decisions, which, Casey insists, have no application to arbitration. This problem arose in Sattva, where judicial review cases were cited, but at least Sattva was an arbitration appeal case, not a set aside. Casey finished his keynote by reaffirming the need for a serious reassessment of court reviews of arbitral awards.
Following Casey’s speech, the Honourable Janet E. Mills and Joel Richler presented Casey with the CIArb Award for Distinguished Service in Canadian Arbitration.
Justice Mills noted that this award was given in recognition of Casey’s extensive contributions to arbitration in Canada. She highlighted that in the 30 years she has known Casey, he has been a strong and consistent advocate for commercial arbitration. When most Canadians only associated arbitration with labour disputes, Casey was sharing his knowledge and expertise of arbitration with the legal and business communities. Casey has literally written the book on commercial arbitration in Canada sometimes described as the Bible for Canadian arbitrators. It has been cited by many, including the Supreme Court of Canada. Justice Mills concluded her remarks by quoting Winston Churchill: “We make a living by what we get, but we make a life by what we give.” She thanked Casey for his many contributions to Canadian arbitration.
Joel Richler came next, and noted that Casey was an excellent trial lawyer with a profound sense of tactics and strategy. His experience as a litigator, Richler said, is what made Casey an excellent arbitrator. Casey is a regular teacher of arbitration and has participated in training programs for judges. On a personal note, Richler highlighted Casey’s positive demeanor, which makes him a pleasure to work with. Richler concluded by congratulating Casey for his accomplishments.
Following the presentation of the award, a tribute video was played with congratulatory remarks from the arbitration community.
Casey thanked the Chartered Institute and the Symposium Co-Chairs, expressing his deep gratitude to everyone who has helped him along the way. He thanked Baker McKenzie for providing him with the opportunity to become immersed in commercial arbitration, Justice Mills, with Casey a founding member of Bay Street Chambers, and Richler for his sound advice over many years. Casey thanked all the students, associates, and lawyers who helped him put out the three editions of his book (with the fourth edition on its way). Casey thanked his daughters for their support while he was travelling for work and his late wife of 52 years for her support. Casey thanked Kim Humphrey for the near 20 years as his assistant, noting that she started as “just” an assistant but is now a good friend. Casey concluded by emphasizing that this is not yet the end of his career; he still has more to give to the arbitration community.
The symposium concluded with a virtual networking session.