CJCA Launch Webinar

You can view our launch webinar in full here. A text summary of the discussion is below.

 

 

Canadian Journal of Commercial Arbitration Hosts Webinar to Launch Inaugural Issue

Beryl Meng

On June 25, 2020, The Canadian Journal of Commercial Arbitration launched the journal and presented its inaugural issue at a webinar attended by hundreds of arbitration students, lawyers, and scholars from across Canada and around the world. Executive Editor Barry Leon kicked off the proceedings, thanking the webinar’s hosts at Arbitration Place Virtual and the journal’s partners, Juris Publishing and the Queen’s Faculty of Law. Executive Editor Gerald Ghikas thanked the Journal’s Editorial Advisory Board (EAB) for its support and contributions. EAB member Louise Barrington praised the journal for filling a notable gap in the Canadian arbitration scene: a forum for regular discussions on salient issues, to promote commercial arbitration in Canada and raise standards for Canadian lawyers. The journal’s launch marks, observed Barrington, the maturation of the Canadian arbitration community and a sign that Canadians need no longer leave home to build a practice and find success in international arbitration. As EAB member Yves Fortier, a legend in the field, remarked, “the journal is another indication that Canadians are in the forefront of arbitration, not only in Canada but throughout the world”.

The webinar’s main feature was a panel discussion on “Major Milestones in Canadian Arbitration Law”. The panelists were all contributors to CJCA’s inaugural issue: J. Brian Casey (Bay Street Chambers), Joel Richler (Bay Street Chambers), Douglas F. Harrison (Harrison ADR), Prof. Alyssa King (Queen’s University), Prof. Janet Walker (Osgoode Hall Law School, York University, CJCA Executive Editor), and Prof. Anthony Daimsis (University of Ottawa Faculty of Law, CJCA Case Comments and Recent Developments Editor). The discussion was moderated by CJCA managing editor Prof. Joshua Karton (Queen’s University).

Joel Richler, whose article for the inaugural issue dealt with Canadian courts’ attitudes toward arbitral competence-competence, cited two Supreme Court decisions as the key milestones: Dell v Union des consommateurs[1] and Seidel v TELUS Communications.[2] Under those cases, courts will only stay arbitration where the dispute over the arbitrators’ jurisdiction relates to questions of law alone, or where, on a question of mixed fact and law, the question can be determined by a superficial review of the evidence and the stay application was not brought only for dilatory purposes. Richler characterized the principle as signifying Canadian courts’ deference to arbitration and to arbitrators’ decisions on their own jurisdiction. Pure questions of law are rare occurrences, given the Supreme Court’s decision in Sattva Capital v Creston Moly that contractual interpretation is generally a question of mixed fact and law.[3] Richler concluded that most courts are following Dell and Seidel, and construing the exceptions to competence-competence narrowly. Ending on a positive note, he described respect for competence-competence as key measure metric of Canada’s arbitration-friendliness. On that score, at least, Canadian courts are in good shape.

Brian Casey pursued the same theme, of the relationship between courts and arbitrators, but from the other end of the arbitral process: setting-aside applications. He presented a decidedly more mixed picture than that disclosed by Richler. In particular, Casey observed that the standards for setting aside arbitral awards under the provinces’ domestic and international arbitration legislation has been confused with the common law remedy of judicial review, leading to inconsistent approaches to the standard of review. In Sattva, at issue was a right of appeal from a domestic arbitration award, where the court determined that on the appeal itself, the standard of review will in most cases be reasonableness; that is, courts will only overturn unreasonable determinations of law by arbitrators.[4] Sattva may have led lower courts to wrongly import the standards for judicial review into setting-aside applications, even those governed by the provincial International Arbitration Acts, which are based on the UNCITRAL Model Law.[5] However, the recent Ontario Court of Appeal decision in Alectra Utilities Corporation v Solar Power Network gives some reason for optimism.[6] The Court of Appeal held that under a setting-aside application, it is irrelevant whether the arbitrator’s decision was reasonable or unreasonable, correct or incorrect; it matters only whether the arbitrator had the jurisdiction to make that decision. Casey expressed a hope Alectra will be a milestone on the road to better judicial treatment of setting-aside applications. Nevertheless, Canadian courts still have a long way to go toward a proper application of the setting-aside remedy.

Douglas Harrison’s article examines a delicate subject, the removal of arbitrators for incapacity or undue delay. In what circumstances may parties rid themselves of an unwell, overcommitted, or just plain slow arbitrator? In particular, when will courts intervene to remove an arbitrator in the name of supporting the arbitration process?[7] Harrison’s research showed that courts and arbitration institutions will do almost anything they can to preserve an ongoing arbitration, so the bar to remove an arbitrator for incapacity or delay is extremely high. Harrison took this to be a sign of Canada’s arbitration-friendliness as a jurisdiction. Arbitration-friendliness is often taken to mean non-intervention by courts. However, a well-functioning arbitration system needs occasional court intervention to support the arbitration process, or to defeat challenges to the system.

Janet Walker’s remarks were of a different character. She surveyed the development of the international arbitration bar in Canada. Not long ago, the arbitration community was tiny, and most of the figures who developed international arbitration in Canada are still active. Professional societies like the ICC’s Canadian Committee, the Chartered Institute of Arbitration’s Canadian Branch, and the ADR Institute of Canada—and, as in many countries, the Willem C. Vis International Commercial Arbitration Moot—have expanded, strengthened, and united the arbitration community. The newly established CanArbWeek will give Canada not just a place in the world but a place on the calendar, where the community can focus its energies and pool its talents. The Canadian Journal of Commercial Arbitration constitutes the last piece of the puzzle: to provide thought leadership, foster collaboration, and advance understanding of arbitration in Canada.

The remaining speakers focused on some recent case law coming from the Ontario Court of Appeal. Alyssa King and Anthony Daimsis offered contrasting opinions of the 2019 ONCA decision in Heller v Uber Technologies Inc.[8] (The Supreme Court’s decision on the appeal in that case would be released the day after the webinar, and was the subject of some speculation by the panelists.) At issue in Heller is the enforceability of the arbitration clause in Uber’s service agreement with its Canadian UberEats drivers, which required all disputes be mediated and then arbitrated in the Netherlands under the ICC Rules. The majority at the Court of Appeal held that the arbitration clause was invalid both because it was unconscionable and because it purported to contract out mandatory provisions of Ontario’s Employment Standards Act.

Daimsis criticized the decision on a number of bases. In particular, he disparaged the ONCA for ignoring the international origin of the Ontario legislation—the UNCITRAL Model Law—and failing to interpret it in accordance with principles of uniform interpretation.[9] Daimsis contrasted the ONCA’s parochial approach in Heller and another ONCA judgment issued around the same time, Disney v American International Reinsurance,[10] with a recent decision of the Eastern Caribbean Supreme Court, Commercial Division, Hualon Corp v Marty Limited, which he described as a positive example of a court taking the Model Law seriously.[11] By surveying recent decisions interpreting the Model Law from around the world, considering leading treatises, and taking into account the travaux, the court seated in the British Virgin Islands took an approach properly aligned with international practice. Daimsis warned that when foreigners look to Canada, they look at our case law, and if Canadian courts are not applying international law correctly, we might not be seen as a favourable seat of arbitration.

Alyssa King put cases like Heller v Uber and the Supreme Court’s decision in Telus v Wellman[12] into an international context, contrasting them in particular with developments in the United States. The arbitration clause in Heller recalls the debate over arbitration clauses the United States, and the US Supreme Court’s apparent hostility to class arbitrations. The American courts seem to have in mind a narrow conception of arbitration as an individualized and quick system of justice outside of the courts, and have given free rein to American business to draft individual arbitration clauses, combined with class action waivers, to deter employees and consumers from making legal claims. Such arbitration clauses are, ironically, designed to prevent arbitration. King queried how Canadian courts might come up with a more nuanced response to this access-to-justice problem than the US Supreme Court’s blanket pro-individual arbitration stance. Her proposed solution was to bring forward new legislation to protect parties harmed by abusive arbitration agreements, or through the development of case law such as Uber, in which the Ontario Court of Appeal applied the doctrine of unconscionability to preserve the ability of weaker parties to adhesive contracts to bring their claims in court.

The milestones of Canadian arbitration law mark out a road toward greater sophistication and stronger court support for arbitration. But there have been some wrong turns, especially on the confused Canadian jurisprudence on the standard of review.[13] The Uber case, as well, has generated uncertainty about the impact of unconscionability doctrine on the validity of arbitration clauses, uncertainty that may not be resolved by the Supreme Court’s decision in that case.[14] The direction overall is toward greater differentiation between domestic and international arbitrations, and between commercial and employment or consumer arbitrations. That road may lead to greater fairness, but also to greater unpredictability.

 

This was the first webinar in a series to be presented by CJCA. The next will be held on Friday, July 3^rd at 12:00pm EDT, on the much-anticipated Supreme Court of Canada decision in Uber Technologies Inc v Heller. A distinguished panel will discuss the case and its implications not only for arbitration, but also for Canadian employment and consumer protection law and the gig economy. To view the full program and register for the webinar, click here.