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Alternative Dispute Resolution
Campion, John A.
Fasken Martineau
DuMoulin LLP
(416) 865-4357
jcampion@fasken.com
Mr. Campion's trial and
appeal practice has
produced over 300
reported decisions from
courts including the
SCC, tribunals and arbi-
trations. His experience
includes class action,
corporate/commercial,
mining, energy,
competition and
securities cases.
Carfagnini, Jay A.
Goodmans LLP
(416) 597-4107
jcarfagnini@goodmans.ca
Mr. Carfagnini focuses
on banking, financing,
reorganizations, bank-
ruptcy and insolvency
with an expertise in
cross-border and inter-
national matters involv-
ing the US and the UK.
He has advised on most
recent major Canadian
restructurings.
Carron, AdE,
Christine A.
Norton Rose Fulbright
Canada LLP
(514) 847-4404
christine.carron@nortonrose-
fulbright.com
Ms. Carron's litigation
practice embraces ma-
jor class actions, prod-
uct liability, consumer
protection, banking,
privacy, e-commerce
and shareholder dis-
putes. She is a Fellow
of the American College
of Trial Lawyers and
Advocatus Emeritus.
Capern, Gordon D.
Paliare Roland
Rosenberg
Rothstein LLP
(416) 646-4311
gordon.capern@paliarero-
land.com
Mr. Capern advises
clients in resolution of
disputes in many areas
of corporate & commer-
cial activity, mergers &
acquisitions, liability of
professional advisors,
shareholder & partner-
ship disputes, director
& officer litigation. He
is a Fellow of IATL.
Carr-Harris, LSM,
J. Bruce
Borden Ladner
Gervais LLP
(613) 787-3505
bcarr-harris@blg.com
Mr. Carr-Harris's civil liti-
gation practice includes
commercial litigation,
defamation, judicial
review, professional
liability and discipline,
employment matters
and insurance law,
public inquiries, and
domestic and inter-
national arbitration.
Cavanagh, J. Stephen
Cavanagh LLP
(613) 780-2000
scavanagh@cavanagh.ca
Mr. Cavanagh prac-
tises in the fields of
professional liability,
insurance and com-
mercial litigation. He
is frequently consulted
by both insurers and
insureds on insurance
coverage issues.
controversial in some areas of the world; it may raise issues,
for example, of how to preserve privilege and identifying
who has control of the litigation. However, these issues are
being worked through by parties, counsel and tribunals, and
any such issues are not intractable."
e issue of confidentiality in arbitrations "is a pretty hot
topic and particularly important for clients, for example,
companies that may have serial arbitrations on the same issue
with a contractual counter party," says Clarke Hunter, a se-
nior litigation partner with Norton Rose Fulbright Canada
LLP in Calgary.
"One of the reasons a company might choose arbitration
in the first place is confidentiality, so that your fight is in pri-
vate rather than in the glare of the public eye," says Hunter.
"Yet another principle is that you'd like to have the same fight
only once; rather than paying lawyers and arbitrators to de-
cide the same issue on multiple occasions."
Hunter cites, as an example, a company with a pricing ar-
rangement where the contract provides for a three-year term
for a particular price formula and, aer that time period, has
to be revisited. "ere can be some real tension between
those two principles if somebody argues that a second ar-
bitration panel can't know what the first arbitration panel
decided on this issue three years ago and of course the losing
party doesn't want them to know the result, but the winning
party does."
e bottom line for Canadian companies, he says, is this:
"the law is a bit unsettled, and it remains to be seen how
confidential arbitrations are to be treated as precedents in
Canadian law. at is an issue of particular relevance in this
circumstance of serial arbitrations between counterparties to
a single contract."
In fact, not fighting the fight over and over again is one
of the reasons Canadian companies choose commercial ar-
bitration in either domestic or international situations, as
opposed to litigation. at's why, when arbitration clauses
are being drawn up, whether or not to preserve the right to
appeal an arbitral decision through the courts is oen a topic
for extended discussion, according to Joel Richler, a senior
partner with Blake, Cassels & Graydon LLP in Toronto in
the Dispute Resolution Group.
Richler suggests to clients if they're opting for arbitration
"it's because you want to have your dispute resolved efficient-
ly and quickly; on the other hand, if you provide for appeal
what you're really doing is creating a court process which has
arbitration as a first step."
He says the discussion with clients about whether or not
to provide for right of appeal in arbitration clauses "has be-
come much more focused since the Supreme Court of Can-
ada's decision in Sattva Capital Corp. v. Creston Moly Corp
(Sattva) last year, which determined the British Columbia
Court of Appeal erred in granting leave to appeal the com-
mercial arbitration award.
"Many existing arbitration clauses don't exclude the right
of appeal, and the Ontario arbitration statute, as most others
in Canada, provides that a party can apply for leave to appeal
from an arbitration award on a question of law. [But] there's
been a lot of case law trying to determine what actually is a
question of law, as opposed to a mixed question of law and
fact," says Richler. "What Sattva does is really limit what a
question of law is and does it so rigidly so that it effectively
excludes rights of appeal. e Supreme Court of Canada said
unless it's pure law, and has nothing to do with the facts…
then there's no right of appeal under those statutes."
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