Gilbertson Davis LLP
Arbitration and Mediation Chambers

Moving Litigation to Arbitration
Arbitration Agreement Made After
Dispute Arises | No Arbitration Clause
When Can You Arbitrate a Dispute?

Moving Litigation Forward by Arbitration
Toronto Arbitrators for Transferred Litigation
Arbitrators with Reasonable Fees for Expedited 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.

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 and Mediation 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.

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 and Mediation 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 and Mediation Chambers through the Intake Coordinator, at 416 979 2020, ext 223, by or by using the Arbitrator Availability Inquiry Box located on this webpage, and here.

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Call: (416) 979-2020
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Chambers Roster of
Arbitrators & Mediators

R. Lee Akazaki

C.S., B.A. (Hons.), J.D.
Arbitrator & Mediator
$465 per hour*

David Alderson

LL.B, LL.M, Q.Arb
From $350 per hour*

John L. Davis

B.A. (Hons.), J.D.
Arbitrator & Mediator
From $450 per hour*

*plus facilities and applicable taxes.