Gilbertson Davis LLP Arbitration Chambers

---

Motion by Arbitrator – Early Dates
Application by Arbitrator – Early Dates
Case Management Arbitrator
Procedural Arbitrator
Moving Litigation Steps to Arbitration

The courts in Ontario continue to address access to justice in the time of the coronavirus, providing a triage process to determine which matters are considered urgent and should be heard.  Video conference arrangements in the courts are evolving.  We are mindful that both criminal and family law matters are likely to take priority both now and when traditional hearings become available post-coronavirus.

Lawyers are Already Doing It – Motions by Arbitrator | Applications by Arbitrator

Due to the current difficulty in obtaining an early date for the hearing of a motion or of an application, commercial and civil litigation lawyers are proactively addressing their client’s needs by arbitrating motions and application.  They agree to do so in writing.

David Alderson is qualified and experienced arbitrator with over 40 years of civil and commercial litigation practice experience here and in other jurisdictions. He has been appointed arbitrator by the Superior Court of Justice in commercial arbitration matters. David offers appointment as an arbitrator in both substantive and procedural disputes. He charges competitive and reasonable fees, and has good availability, as arbitrator, to hear, determine and decide your client’s motions or applications.

David is an arbitrating member of the ADR Institute of Canada, the Toronto Commercial Arbitration Society and is on the Ontario Bar Association’s Response and Recovery Arbitrator Roster. The David is a roster arbitrator of the Toronto Commercial Arbitration Society, and has successfully completed the Toronto Commercial Arbitration Society Gold Standard Course in Commercial Arbitration. He is also a Full Member of the ADR Institute of Ontario and appears in its Member Directory.

David has completed each of the Foundations in Judicial Competencies Series, and the Adjudicative Tribunal Competency Series and has been granted a Certificate of Completion in each by the Ontario Bar Association.

David has appeared in all level of courts of the province and Canada, including the Superior Court of Justice, including the Divisional Court, the Court of Appeal for Ontario, the Federal Court, the Federal Court of Appeal,  and the Supreme Court of Canada.  His practice includes summary judgment, urgent equitable remedies including injunctions and mandatory orders, and all manner of civil and commercial practice and procedure.

He is the author of, inter alia, two chapters of the Annual Review of Civil Litigation (in 2018 and 2021), which presents a survey of appellate decisions concerning summary judgment over seven years since the decision of Hyrniak v Mauldin in the Supreme Court of Canada,  at which David was co-counsel for Mauldin, et al.

In the appropriate circumstances, David, as arbitrator, can hear, decide and make binding decisions in all motions and applications, enforceable by the court, including applications, with our without an evidentiary hearing, motions for summary judgment, strike-out motions, Anti-SLAPP motions, security for costs motions, refusals and undertakings motions, motions for particulars and documents, injunctions and mandatory orders (not affecting non-parties), and references to determine loss and/or damages and / or to determine and assess costs, whether the main proceedings are in the Superior Court of Justice or the Federal Court of Canada.  Where the parties agree, David can, as an arbitrator, hear private appeals and private review of orders and judgments in the courts.

Moving Litigation Forward Through Arbitration

If you, or your clients, are contemplating civil or commercial litigation by court-based process, because the governing agreement does not provide for arbitration (the so-called pre-dispute arbitration agreement), you should be aware that, except in very limited exceptions, those engaged in a dispute, can nonetheless agree to resolve their disputes by arbitration, whether post-dispute, mid-dispute or when court-based litigation is otherwise being contemplated or on-going.

The roster of arbitrators at Gilbertson Davis LLP Arbitration Chambers accept appointment to arbitrate disputes in a wide variety of matters.

What Can be Agreed to be Referred to Arbitration

Moving court-based litigation or contemplated litigation to arbitration can include the entire contemplated proceedings; only the remaining proceeding if court-based litigation has been commenced; for part of the proceedings, such as central procedural or core substantive issues only; for limited procedures, such as motions, references, assessments, appeals; or proceeding only until the court resumes hearings at a pre-COVID-19 state.

These are a matter of party autonomy expressed through agreement.

Case Management Arbitration

We have been offering “case management” arbitration and “case management” arbitrators throughout the pandemic.

Moving court-based litigation to arbitration can include the entire contemplated proceedings; the remaining proceeding if court-based litigation has been commenced; or only procedural parts / interlocutory steps of the proceedings, such as: pleadings motions; document production and discovery issues; undertakings and refusals motions; other procedural motions; and while at the same retaining the parallel court-based proceedings for the core, substantive merit decision-making.

This is so-called Case Management Arbitration.

Each of these options are a matter of party autonomy that can be expressed through mutual agreement of the parties.

Arbitration When No Arbitration Clause

When Is Arbitration Available?

An agreement to refer or submit disputes to arbitration may be made before a dispute arises or after a dispute has arisen.

Arbitration Clause and Standalone Agreement to Submit Disputes to Arbitration

An agreement to arbitrate typically appears as an arbitration clause in a contract in relation to which a dispute has arisen. However, resolving disputes by arbitration may be possible even if the parties have not included an arbitration clause in the contract – if they agree to submit disputes to arbitration by a standalone arbitration agreement.  This option provides the parties with the advantages of arbitration as a presumptively private and confidential, efficient, faster and therefore less expensive way to resolve disputes.

Statutory Authority for Standalone Arbitration Agreement

This standalone agreement to submit disputes to arbitration is recognized by stature in Ontario in both the Arbitration Act, 1991, S.O. 1991, c. 17 and the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5, and in Canada under the Federal (Canada) Commercial Arbitration Act R.S.C., 1985, c. 17 (2nd Supp.)

In particular, subsection 5(1) of the Arbitration Act provides: 5 (1) An arbitration agreement may be an independent agreement or part of another agreement.  1991, c. 17, s. 5 (1), and  Chapter II. Arbitration Agreement, Article 7 of each of the International Commercial Arbitration Act and, with minor modification, the Commercial Arbitration Act, since both incorporate the UNCITRAL Model Law, and provide: (1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

Arbitration at the Pace Parties Require

Through effective Case Management and Procedural Orders, the parties will find that arbitration proceeds at the speed the parties require, while maintaining statutorily ensured fair and equal treatment of all parties.

Remedies in Arbitration

The Arbitration Act provides arbitrators with jurisdiction to award damages, specific performance, injunctions (that do not affect non-parties to the arbitration) and other equitable remedies. Enforcement of Arbitration Awards is dealt with by the courts.

Good Availability and Reasonable Fee Rates

The arbitrators at Gilbertson Davis Arbitration Chambers have good availability at reasonable fee rates.

To inquire about arbitrator availability and fee rates, or to request a resume or draft Terms of Appointment, please contact Gilbertson Davis LLP Arbitration Chambers through the Intake Coordinator, at 416 979 2020, ext 223, by info@gilbertsondavis.com or by using the Arbitrator Availability Inquiry Box located on this webpage, and here.

* Sole Arbitrator – from $450.00 per hour, plus HST (does not include Panel Arbitrator, or a Sole Arbitrator that becomes a Panel Arbitrator)
Lower Rate if Disputes About $1 Million or Less

Chambers Roster of Arbitrators

*plus facilities and applicable taxes.