mARCH 2012 18 Global Arbitration www.lawyer-monthly.com

ARBITRATION CANADA

Taking a look at the issues surrounding arbitration in Canada, Lawyer Monthly speaks to J.L. McDougall and Michael Schafler, from one of the country’s oldest and largest business law firms, Fraser Milner Casgrain LLP. FMC has over 500 lawyers practicing in virtually all business law areas from offices located in Vancouver, Edmonton, Calgary, Toronto, Ottawa and Montreal, which makes them perfectly placed to comment on the Canadian system of arbitration and the challenges commonly raised.

J.L. McDougall, Q.C. is based in Toronto where he is engaged in the practice of corporate/commercial litigation and is an arbitrator with extensive experience in international commercial arbitration. He was appointed a Queen’s Counsel in 1980 and elected to the American College of Trial Lawyers in 1989. He has been recognized by a number of legal publications as a leading lawyer in the areas of Arbitration and Dispute Resolution. J.L. is a member of the Law Society of Upper Canada and all other similar bar associations across Canada.

Michael is the co-lead of FMC’s National

ADR Group and he also heads up the local Litigation Department in the Toronto office. He was called to the Ontario Bar in 1997, became a partner in FMC in 2003 and now acts as counsel to parties in complex domestic and international disputes,

including domestic and

international institutional and ad hoc arbitrations.

Q

what are the common causes of disputes between businesses in Canada, and across borders?

Most, if not all, commercial disputes are motivated by disputes over money or, more specifically, damages alleged to have been occasioned as a result of breach of contract. Almost invariably, the reason behind the dispute has to do with one party’s alleged failure to provide the services or goods in question on the agreed upon terms and conditions. The supplying party will assert that it complied with all such terms and conditions whereas the receiving party will say the exact opposite. When the case is stripped to its core, however, it is often discovered that the receiving party is either experiencing financial difficulties or is simply attempting to renegotiate the purchase price through the medium of dispute resolution, hoping that the proceeding will result in a favourable

settlement. These matters are typically exacerbated by a failure or breakdown in communication between the parties, which is often the result of personality conflicts within the relationship.

Q

Is there a typical method of dealing with dispute resolution for all businesses or do you have to employ a specific tactic for foreign companies compared to local companies?

In our view, it does not matter whether the parties to the dispute are domestic or foreign or a combination thereof. The basic approach is always the same: the parties exchange their legal positions in the form of pleadings, they then exchange documents and engage in some form of pre-hearing discovery (which can be oral or written or a combination of both) and, failing a settlement, the hearing then