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2016
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LEXPERT 7
to court, I doubt we would even have had an ex-
change of pleadings in a year."
MacDonald offers the anecdote as just one pos-
sible example of how arbitration may be prefer-
able to litigation. "Litigation today is prohibitively
expensive and getting more so," he says. "It is also
very time-consuming, so it should be avoided, if
possible, at all costs."
Of course, litigation may still be the best mech-
anism to resolve particular disputes — or, in some
cases, the only one acceptable to one or more par-
ties involved — but there's little doubt that, with
some exceptions, it's the least economical option,
in terms of time and money.
Delays in resolving a litigated dispute, which
obviously contribute significantly to the cost, are
a serious problem, says Ian Binnie, QC, a retired
Supreme Court of Canada judge and partner at
Lenczner Slaght Royce Smith Griffin LLP in To-
ronto. "I think there's a general concern within the
legal profession that the courts are not delivering
a fast enough service. If you're looking for a trial
in excess of five days [in duration], you're months,
if not years, away from trial. Most businesses can't
afford to wait around that long."
Binnie says many corporate counsel "are fairly
obsessed with the topic of avoiding litigation." In
addition to their concerns about time and cost,
"I think it's [also] the desire to deal with things
privately within arbitration or mediation. I think
they feel that, when they get to court, they have
pretty well lost control over a situation."
While mediation and arbitration are the prin-
cipal alternatives to litigation, Cliff Lax, QC, a
partner in the Toronto firm Lax O'Sullivan Lisus
Gottlieb LLP, notes that the best way to reduce the
possibility of a costly dispute is to properly conduct
business transactions in the first place. "[at]
would involve proper documentation, clarification
of any ambiguous aspects of a commercial litiga-
tion and proper due diligence at the outset of a re-
lationship among other responsibilities."
Another avoidable pathway to litigation, says
Tina Cicchetti, a partner in the Vancouver of-
fice of Fasken Martineau DuMoulin LLP, is for
the parties to understand the difference between
a legal dispute and a business one. "e business
people [sometimes] haven't applied themselves to
the problem to make sure it's actually a legal dis-
pute," she says. "I think that's when things typical-
ly get off the rails, right from the start."
MacDonald oen advises lawyers working
within corporations to have a trained litigator
review a significant contract before it's finalized.
"We tend to read things differently [from them],"
he says. "I'm looking for potential problems. I oen
pick up things that showed confusion or weren't as
clear as they could be. I oen say, 'You can pay me
a little now or a whole lot later.'"
Blair, QC, John D. Borden Ladner Gervais LLP
(403) 232-9723 jblair@blg.com
Mr. Blair is the leader of BLG's Commercial Litigation Group. His practice
focuses on broker/advisor liability and investigations, employee misconduct,
securities class actions, shareholder disputes, take-over bid defences, secu-
rities regulatory hearings, corporate investigations, plans of arrangement
and cross-border civil and regulatory matters.
Bjorkquist, Sonia L. Osler, Hoskin & Harcourt LLP
(416) 862-5876 sbjorkquist@osler.com
Ms. Bjorkquist defends companies in class actions, commercial arbitration
and other complex litigation, including product liability, director/officer
liability and business-critical issues relating to commercial agreements.
Bishop, David C. Gowling WLG
(403) 298-1941 david.bishop@gowlingwlg.com
Mr. Bishop practises corporate/commercial litigation with an emphasis
on directors' and officers' defence, product liability, professional liability
disputes, shareholder disputes, class actions, large property claims
and environmental litigation.
Binnie, CC, QC, Ian Lenczner Slaght Royce Smith
Griffin LLP (416) 865-3737 ibinnie@litigate.com
Mr. Binnie, a former SCC Justice, draws on his judicial insights and courtroom
experience as counsel to share strategic and practical advice. He frequently
receives appointments as arbitrator and mediator both domestically
and internationally.
Benchetrit, George Chaitons LLP
(416) 218-1141 george@chaitons.com
Mr. Benchetrit brings more than 20 years of experience in the areas of cor-
porate restructurings, bankruptcy and insolvency, and commercial litigation.
He regularly represents shareholders of private companies in the context of
disputes, both in court proceedings and in alternative dispute processes.
Bell, Derek J. Bennett Jones LLP
(416) 777-4638 belld@bennettjones.com
Mr. Bell's practice focuses on Commercial List litigation, including merger
and acquisition litigation and insolvency matters, and competition litigation.
He represents a wide variety of industries and business sectors, including
public issuers, individual directors and officers, banks, securities dealers,
manufacturers, and private and public investment funds.
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