"The definition of insanity is doing the same thing over
and over and expecting different results."
That sentence has been attributed to Albert Einstein, Mark Twain
and others. Whoever said it has a point that applies to commercial
Developed countries have very complicated rules to resolve
commercial disputes in courts. In Canada there are formal
statements of claim and defence, counterclaims and third-party
claims. We exchange sworn affidavits listing all relevant
documents, and produce copies of them to everyone in the lawsuit.
Then it's on to formal examinations for discovery (depositions)
under oath, usually the preparation of expert reports, and
eventually a trial and perhaps an appeal. And all along the way,
there are motions when the lawyers disagree.
Too often, cases are settled before they have a chance to be
decided by a judge on the merits.
And all of this is expensive and time-consuming, not to mention
distracting and sometimes frustrating for businesses. So it makes
sense to try to make things shorter and less expensive but at the
same time, fair. Fair, meaning that litigants have to have a
reasonable opportunity to gather evidence and then present a
What about commercial arbitration? Can it be shorter, less
expensive and still fair? Yes it can.
But often it's not. Sometimes that's because when
arbitration is selected by commercial parties, they (or their legal
counsel) may, instinctively, simply adopt the same rules that
are used in court litigation to apply to the arbitration.
Literally, parties often agree in Ontario that the arbitration will
include document production, oral examinations and other steps in
accordance with the Ontario Rules of Civil Procedure.
Doing so admittedly can have great benefits: legal counsel and
the tribunal (which often includes a retired judge) are comfortable
with those rules, there is a body of case law interpreting the
rules and there is a balance between the interests of the claimant
(plaintiff) and the respondent (defendant) that lends itself to
procedural fairness before trial.
But incorporating the usual rules applicable to court litigation
also means that at least one central benefit of commercial
arbitration can be lost.
That benefit is better control of the process.
Commercial arbitration is by definition controlled by the
parties and the arbitral tribunal. They make and enforce the rules.
The trick is to take that control and use it wisely. Some rules can
come from applicable legislation but the stuff that is really
expensive and time-consuming is mostly within the control of the
parties and the tribunal. To ignore the opportunity to take better
control is to expect a different result by repeating the same thing
you and so many others have done before.
In my next Thought Network post, I'll discuss some ways to
use that control that help achieve better results using commercial
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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