Monthly Archives: August 2009

A Brief Note on Arbitration

Posted in: "All, "Brief Note" Series, Business Development, Legalese Dictionary by Admin | No Comments Tuesday, August 11, 2009

What is arbitration?

Arbitration is a form of alternative dispute resolution (ADR). The parties involved in a dispute voluntarily or obligatorily refer it to one or more persons for a decision, to which the parties agree to be bound.

Legal requirements

In Ontario, arbitration, other than international commercial arbitration, is governed by the Arbitration Act, 1991. It applies to arbitration conducted pursuant to “an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them.”*

Further to the statutory requirements as set out in the Arbitration Act, the common law has developed two concepts which it regards as characteristic of arbitration: (1) the existence of a dispute and (2) the duty (generally under contract) or intent of the parties to submit that dispute to arbitration.#

If the common law requirements above are not met, the proceeding cannot be regarded as arbitration and the Arbitration Act does not apply.

For example, disciplinary process as set out in a union constitution is not considered as arbitration.++ If one party to the dispute does not agree to proceed to arbitration, then the proceeding cannot be regarded as such, either.**

Arbitration clauses are often found in commercial transactions (particularly international ones) and labour and employment agreements.

What are the benefits of arbitration?

  • The arbitration process is often less formal and more expedient. As such, the costs will generally be lower than litigation in courts.
  • The parties may choose the arbitrator who hears the dispute. This is particularly useful when the matter is highly technical and a degree of expertise is required.
  • At the international level, arbitration awards are more easily to be enforced under private international law.^
  • Arbitration proceedings may be conducted in private, whereas documents used in litigation become public record.

If you require assistance or representation regarding arbitration, please contact my office at 416-433-5531.

* S.O. 1991, c. 17, s. 1

# Sport Maska Inc. v. Zitter, [1998] 1 S.C.R. 564 at 585.

++ Downey v. Leitner, [2004] O.J. No. 4466, 2004 CanLII 34927 (S.C.J.)

** Universal Workers Union, LIUNA, Local 183 v. Ferreira (2009), 95 O.R. (3d) 118

^ see e.g. International Commercial Arbitration Act, R.S.O. 1990, c. I.9

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Tourists, Be Wary of Unlincensed Tour Operators!

Posted in: "All, Business Development by Admin | No Comments Sunday, August 9, 2009

Lately downtown Toronto has been packed with tourists from all over the world. They’ve got places to go and money to spend. Therefore, it’s hardly surprising that sight-seeing tour operators are springing up at major intersections to attract potential customers. The packages vary from in-town rounds to day-tours to the surrounding attractions, such as the Niagara Falls.

Besides the well-established sight-seeing companies, there are also “underground” operators who attract budget-conscious tourists with lower rates.

For example, opening one local paper you may expect to see the following ads:

Buffalo Shopping Tour – $79

(A return bus ticket costs much more than $79)

Niagara Falls – $50 per person

(The licensed ones range from $79 to $139)

Airport rides – $20 one way

(A one-way taxi from downtown Toronto to Pearson International Airport costs at least $50)

These operators are mostly private individuals with a vehicle trying to make a quick buck. I call them “underground” because most of them aren’t licensed and don’t have the necessary registration and permits. They are often significantly cheaper than their established counterparts but promise the same attractions.

So what’s the problem?

The problem is this: what if there’s an accident during the tour?

Because these unlicensed operators often attract customers based on their low price, cost becomes a major concern. As the result of the relentless cost-cutting, proper maintenance of the vehicles may be neglected.

Further, these tour operators often work from their personal vehicles. Without commercial insurance coverage, injuries as a result of commercial activities are excluded. If an accident occurs during one of the paid tours, the insurance company will likely deny coverage to the injured passengers.

The consequences may therefore be devastating. Besides the physical injuries, there may be psychological trauma from being injured in a foreign place and financial ruin as the result of  astronomical medical care expense for the uninsured.

If you’re planning a vacation, be sure to remember safety first!

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Fraud Alert: Bad Cheque Scams

Posted in: "All, Business Development by Admin | No Comments Wednesday, August 5, 2009

Lawyers take cheques often because we’re not allowed to accept cash in large amounts. Therefore, lawyers are a logical target of bad cheque scams.

But take note: the “bad cheque scams” here are not your ordinary garden-variety bounced cheques. The fraudsters don’t just skip their bill; they walk away with real money. The type of scam involves running a counterfiet cheque or bank draft through a lawyer’s trust account before it’s cleared by the bank. When the bad cheque bounces, the victim lawyer is left with a significantly shortfall in the trust account.

One might ask, why would anyone pay out real money before the cheques are cleared?

According to LawPro, the Lawyer’s Professional Indemnity Company, the fraudsters are sophisticated. They generally come with proper documentation (invoices, letters), and corporate background checks often look normal. The certified cheque or bank draft invariably appears authentic with all securities features present. The scammers are often very charismatic and can pressure the lawyer into disbursing funds earlier than normal for a variety of reasons.

Adding pressure to the lawyer, the “client” often arranges that the closing date is generally around a bank holiday and appears distressed about the troubled cash flow.

Remember, it takes only one seemingly legitimate reason for the victim lawyer to cave in and pay out the funds.

What can be done to avoid bad cheque scams?

LawPro offers the following tips:

  • Do a reverse phone number search on the company and verify the company’s phone numbers, addresses and email contacts with an independent third-party, such as the telephone company.
  • Go to the bank website to verify the branch transit number, address and phone number as they appear on the cheque.
  • Hold the funds until your bank confirms that the cheque has cleared, and it’s safe to withdraw the money from deposit.
  • Exercise caution when clients are previously unknown to the firm and are “in a rush.”
  • Be suspecious of higher-than-usual fees promised by the client for the quick turnaround.

For more information, please visit LawPro at www.lawpro.ca.

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Photographic Evidence before the Landlord and Tenant Board

Posted in: "All, Administrative Law, Legal Aid Ontario by Admin | No Comments Tuesday, August 4, 2009

Visual presentation can be powerful.

As a lawyer who often appears before the Landlord and Tenant Board, I find photographic evidence helpful. While the testimonies of the parties are often contested, photographs offer a fairer and more accurate representation of the scene.

Under the law, the Landlord and Tenant Board may consider “any document or other thing” that is relevant to the proceeding as evidence.* However, for the evidence to be given  proper weight, it should be  authenticated. This is particularly important in the digital age, where photos can be digitally enhanced or edited.

Although the authentication requirements before the Landlord and Tenant Board may be less stringent than those of the Superior Court, the following questions must generally be answered to the Board’s satisfication:

  • Who took the photo?
  • When was it taken?
  • What does it depict?
  • Is it a fair and accurate representation of the scene?

If for legitimate reasons a photograph requires digital enhancement, it’s best done by a reputable third parties, e.g. a commercial photo studio. The person who has enhanced the photos should give evidence on what the purpose of the work was and how it was done. The original, unadulterated version should also be presented for comparison.

Finally, for cases funded by Legal Aid Ontario, there’s generally a cap on how much you can spend on photographs. Therefore, sometimes you may have to choose the most compelling photos to submit as evidence rather than throwing in the kitchen sink.

*Statutory Powers Procedure Act, R.S.O. 1990, c. S22, s. 15(1)

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