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Canada – Different Levels of Courts Urge the Parties Before Them to Mediate Instead of Litigate

by Daniel Urbas

November 2020

Daniel Urbas

This article first appeared on Urbas Arbitral, here.

In separate cases, the Court of Appeal in Iyad Al-Qishawi Professional Corporation v. Alexander C. Yeh Professional Corporation, 2020 ABCA 372 and the Court of Queen’s Bench in Soloniuk Estate v. Huyghe, 2020 ABQB 616 each urged the different groups of parties before them to consider mediation as a dispute resolution. Each level of court dutifully undertook and completed the task assigned to it by the parties under the applicable Alberta Rules of Court, Alta Reg 124/2010 and, having done so, paused before closing to urge that the parties consider other forms of dispute resolution.

Court of Appeal – In Iyad Al-Qishawi Professional Corporation v. Alexander C. Yeh Professional Corporation, the parties disputed the validity/scope of and compliance with terms of a settlement agreement designed to resolve disputes stemming from their business relationship and operation of dental clinics.  The dispute lead to an application for injunctive relief and a competing cross-application for access to patient records.  The chambers judge issued an injunction enjoining one party from accessing or entering certain clinics and dismissed that party’s application for access to patient data at those clinics.

On appeal, the Court of Appeal determined that, on the applicable standards and in the circumstances of the record before it as set out at paras 22-45, the appeal should be dismissed.  Having completed its tasks, the Court of Appeal provided the following comments to close its reasons:

[46] As mentioned at the hearing of the appeal, we are troubled that this dispute has become so acrimonious that it has now spawned numerous claims and counter claims, which, if left to run their course, will preoccupy the parties for years to come, at very significant expense. In our opinion, attempts should be made to resolve this matter through mediation rather than litigation and we strongly recommend that counsel pursue this prospect, whether to a judge of the court (including the Court of Appeal) or with a private mediator”.

Court of Queen’s Bench – In Soloniuk Estate v. Huyghe, the parties disputed whether and how to restore title to land following a land transfer transaction which took place after the death of a joint owner.  During the course of the litigation, the parties disputed applications on procedural matters subject to the Alberta Rules of Court, Alta Reg 124/2010 (“Rules of Court”).  Master Lucille R. Birkett had issued orders and endorsement regarding the proper approach, set out in the Rules of Court, to such matters.  One of the parties was self-represented and had declined the assistance of amicus counsel in an earlier appearance.  

Master Birkett reiterated the reserves mentioned in the Court of Queen’s Bench protocol for Communicating with the Court.  Before limiting her comments to outline some of the applicable Rules of Court and court processes at paras 20 and following, Master Birkett stated the following:

[17] The Court of Queen’s Bench protocol provides that responses to communications from litigants shall not include legal advice but may give information, explain general legal principles and include contact information for public legal services for legal advice and social service agencies for information or assistance.

[18] [H] advised in his correspondence of September 10, 2020 that he has struggled with the Covid 19 restrictions on filing at a wicket or getting assistance within the courthouse. He further advised he has limited internet services where he lives; he can be reached by telephone to arrange for access to a fax machine.

[19] As noted in the preamble of my March 4, 2020 Order, [H] declined the assistance of amicus counsel on that day. With the Covid 19 restrictions, access to such legal advice may now be more difficult. The Alberta Law Library at the Court of Queen’s Bench is accessible. The Rules of Court can be found there. There is likely internet available in the library to access Resolution and Court Administration Services and legal resources identified there”.

Master Birkett offered comments in a closing section to her reasons which she titled “Alternative Dispute Resolution”.

[36] I draw the parties’ attention to the Foundational Rules 1.2(3) (a) and (b) which require them jointly and individually to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense. The parties must periodically evaluate dispute resolution process alternatives to a full trial.

[37] The Rules of Court are intended to be used to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable.

[38] Using the disclosure of information and questioning provisions of Part 5 effectively and efficiently should allow the parties to narrow the dispute between them. There are alternatives to a full trial to be considered.

[39] The quickest means of resolving the dispute at the least expense may be to obtain the assistance of a neutral third-party mediator”.

urbitral note – First, the prompts to mediate appear similar but issued from different levels of court providing different stated reasons at different stages of litigation involving different types of disputes. 

Second, the closing comments by Master Birkett ought to be read in light of her earlier reference to the protocol for Communicating with the Court.  She prefaced those comments with her own reference to limits confirmed by the protocol effectively explained that her comments to consider obtaining the assistance of a neutral third-party mediator were not presented as legal advice.

Daniel Urbas is an experienced litigator, arbitrator and mediator with over 25 years of dispute resolution experience. He has earned a variety of repeat, annual peer recognitions including “Leading Lawyer” in “Commercial Arbitration” in the 2019 edition of the Lexpert ® / American Lawyer Guide to the Leading 500 Lawyers in Canada, “Most Frequently Recommended” in the 2019 edition of The Canadian Legal Lexpert® Directory for Commercial Arbitration, “Thought Leader” in 2019 edition of Who’s Who Legal – Litigation and AV® Preeminent™ by Martindale-Hubbell®.
 

Daniel focuses exclusively on serving as an arbitrator and mediator.  As arbitrator, Daniel serves as a sole arbitrator, as chair or as party-nominated member of three (3) member arbitration tribunals. His appointments have been made by individual parties, by the parties jointly on consent, by court orders and by various administering institutions including ICC, CCAC and IATA.
 

A Fellow of the Chartered Institute of Arbitrators (“CIArb”) based in London, UK, as well as a founding Director of the CIArb’s Canada Branch, Daniel is listed on various rosters including general commercial rosters organized by the ICDR, CIETAC and BCICAC and on more specialized, industry/activity specific rosters such as the Canada Transport Agency’s roster.

 

Daniel’s dispute resolution experience spans a variety of commercial and civil matters, intellectual property (including anti-piracy and anti-counterfeiting litigation) and information technologies, energy (wind, bio), natural resources (mining, forestry, fishing), shareholder disputes, real estate and lease disputes, product liability, construction, distribution and franchise, Aboriginal law matters including treaty and land claims litigation and dispute resolution of agreements relating to governance and natural resource development on native peoples’ territories.

 

He handled trial and appellate advocacy, as well as urgent and extraordinary applications. He has appeared before the provincial and federal courts, including the Supreme Court of Canada, as well as before arbitration tribunals and various administrative tribunals. Fluently bilingual in both English and French with degrees in both Common Law and Civil Law, Daniel is an active member of the Barreau du Québec, the Law Society of Ontario and the Law Society of British Columbia.  At his former national law firm, up until June 2017, Daniel served as Regional Leader of the International Trade Litigation and Arbitration group and Regional Leader of the Intellectual Property Litigation group. Formerly, Daniel was also Regional Leader of the Commercial Litigation group and National Leader of the Intellectual Property Litigation group.



Website: urbas.ca

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