This Week in Family Law Newsletter

THE ARBITRATION EDITION

Mediation and Arbitration: Don't Take it for Granted; Use it or Lose it; And Don't Just Say it - Do Something!

Provincial arbitration acts generally serve to entrench the primacy of arbitration proceedings over judicial proceedings by directing courts to not intervene, and establishing a presumptive stay of court proceedings where parties have agreed to arbitrate. See, for example: Ontario Hydro v. Denison Mines Ltd., 1992 CarswellOnt 3497 (Gen. Div.); Grosman v. Cookson (2012), 25 R.F.L. (7th) 284 (Ont. C.A.); Hopkins v. Ventura Custom Homes Ltd., 2013 CarswellMan 355 (C.A.); and Haas v. Gunasekaram, 2016 CarswellOnt 16116 (C.A.).

However, the right to arbitrate is not unfettered. A submission to arbitration is a contractual relationship, and the parties are entitled to rely on the conditions and timelines in the agreement to arbitrate. Arbitration (and mediation for that matter) cannot be used as a procedural weapon. Three recent cases - two from Ontario and one from Nunavut - make these points. —

Comren Contracting Inc. v. Bouygues Building Canada Inc., 2020 NUCJ 2 (C.J.) - Bychok J.

Paulpillai Estate v. Yusuf, 2020 CarswellOnt 15032 (C.A.) - Doherty, Hoy, and Jamal JJ.A.

George v. Wang, 2020 CarswellOnt 14605 (S.C.J.) - Diamond J.

To read the full newsletter of Franks & Zalev - This Week in Family Law (Issue 46) click here.