Litigating commercial disputes is generally considered a
necessary evil by some and a waste of time and money, by others. I
have never heard anyone except trial lawyers say that they are
truly happy about being in a good lawsuit.
Most commercial enterprises attempt to avoid litigation at all
costs. As a result, the majority of business disputes are resolved
short of the courtroom door. Given the current complexities of the
litigation process, the costs of litigation and the enormous
distraction and waste of time for management and staff, many
businesses look for alternatives to a civil lawsuit. These include:
arbitration, mediation and other forms of alternative dispute
resolution (ADR). Some just do not bother to sue at all. While it
is true that most commercial disputes settle, some cases simply
cannot and should not be settled.
The trial of a commercial dispute should not be considered a bad
thing. Going to trial does not necessarily reflect a failure by the
parties and/or the lawyers to act reasonably, or to find a business
solution to the dispute. Sometimes the parties can have an honest
and legitimate disagreement with respect to their legal
obligations. There can be real issues regarding the interpretation
of a contract or the ramifications of representations made by the
parties, both before and after a contract have been signed.
Sometimes trials are necessary because one side is being
unrealistic and is not prepared to settle on a reasonable
What is wrong with having a judge and/or jury decide such a
case? Why should the parties not have the benefit of an independent
judge ruling on their dispute? Why should a party accept a
settlement that it believes is less than fair and reasonable?
From my point of view, there is another very important reason
that we need to continue to have commercial trials. Without trials,
the law is stagnant and does not develop and respond to new
circumstances. While the world of commerce changes rapidly, the
laws that affect that commerce move very slowly. And even though
commercial activity is significantly regulated by statutes and
regulations, it is important to have judges interpret those
statutes and regulations and provide guidance and direction as to
how they are to be applied. Commerce is significantly impacted by
judge-made law, known as the common law. For example, the law that
applies to contracts is rooted in the common law. Without trials
the common law does not develop and that is simply bad for
Even ADR does not provide an answer. While there are many
benefits associated with ADR, the costs are not necessarily less
than litigation. While ADR will give you a specialized decision
maker and can usually move matters forward much more quickly than
litigation, the bottom line is that ADR does not create new
This is not to suggest that all disputes should be litigated or
tried. Most commercial disputes can and should be resolved.
However, some disputes must be determined at trial.
Properly conducted litigation can provide not only a fair and
just resolution of a commercial dispute that benefits not only the
parties to the dispute but the world of commerce as a whole. So the
next time someone says that lawsuits are bad for business, think
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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