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Possibilities newsletter

April 2008

Issues

By Louis Marquis
A reflection on the future of the interaction between participatory justice and Quebec law.
Article en français

By Paul M. Iacono, Q.C.
A look at ADR in general and mediation in particular, going back to 1990.
Article en français

By George A. Derwin
A synopsis of Judicially Assisted Dispute Resolution, which is now widely accepted by the Manitoba Bar.
Article en français

By George A. Derwin
Details on the advantages of the Canadian Motor Vehicle Arbitration Plan.
Article en français

Section news

Information on the upcoming Canadian Legal Conference in Quebec City.
Article en français

A call for nominations for Secretary-Treasurer and up to 10 Executive Members.
Article en français

By Sheryl Beckford
A request for submissions for the spring/summer edition of Possibilities.
Article en français

By Serge Pisapia
An update on the ADR Section's annual meeting held in Oct. 2007, and a rundown of upcoming Section activities.
Article en français


Editors:
Sheryl Beckford, Serge Pisapia

Contributors:
Sheryl Beckford, George A. Derwin, Paul M. Iacono, Q.C., Louis Marquis, Serge Pisapia

Production:
Kathryn Robichaud

Canadian Bar Association logo

The views expressed in the articles contained herein are solely the views of the authors, and do not necessarily represent the views of the Canadian Bar Association.






Dynamism, participatory justice, and Quebec law
By Louis Marquis
Acting Vice-Principal for Institutional Relations and Secretary-General, University of Sherbrooke

Summary

This text is a reflection on the future of the interaction between participatory justice and Quebec law. Five proposals are put forward to nurture the dynamism of that interaction. They concern undergraduate training in law, the public, law, the judge, and participatory justice in itself. The author concludes that the gifts, the level, and the talents of today's jurists should reflect their full commitment to participatory justice.

Read the full text .pdf

Contents


Issues


Mediation and personal injury cases: where do we go from here?
By Paul M. Iacono, Q.C.

This article is a summary of my thinking about ADR in general and mediation in particular, going back to 1990. These comments are based on my experience, both as a counsel at mediation, and as a mediator. Since July 1, 2003, my practice has focused entirely on ADR, and I have probably mediated more than 2,000 personal injury cases since then. This article is based on my observations of the ingredients required in a successful mediation: what works and what doesn’t work. I have also intertwined my views on how the growth of mediation has affected civil justice in Ontario.

Read the full text .pdf

Contents


Issues


Judicially Assisted Dispute Resolution: ten years of success
By George A. Derwin
Chair, Manitoba Bar Association Alternative Dispute Resolution
Section Chair, CBA National Alternative Dispute Resolution Section Legislation and Law Reform Committee

In December 1997, the Court of Queen's Bench of Manitoba implemented Judicially Assisted Dispute Resolution (JADR). Since 1997, the use of Judicially Assisted Dispute Resolution has steadily grown, and is now widely accepted by the Manitoba Bar as an effective way to resolve disputes.

JADR, also often referred to as “judicial mediation,” is a simple, summary procedure. A judge, acting in the capacity of mediator, helps the parties to facilitate a resolution of the dispute. Mediation is a negotiation process which allows parties to reach agreements that are to be fair and practical and may or may not necessarily reflect the outcome at trial. The judge assists the parties in reaching a mutual agreement. The judge does not adjudicate the issues in dispute. Participation in the process is strictly voluntary.

The Manitoba Court of Queen's Bench, unlike courts in other provinces in Canada, has not introduced formalized rules or mandatory mediation rules. The JADR process is not contained in the Manitoba Court of Queen's Bench Rules. This relative freedom from the formal process gives our JADR process its strength. Parties are free to fashion their own process. The parties, in conjunction with a Court of Queen's Bench judge, set out the terms and requirements of the JADR proceedings. The parties, along with the judge, hold a pre-mediation meeting in order to determine the parameters of the JADR session and how it will proceed.

The Court of Queen's Bench (Winnipeg Centre) discloses the following statistical information:

2004

 

 

Statements of claim filed:

 

2767

Trials set:

 

262

Trials heard:

 

61

JADRs set

 

283

JADRs heard:

 

239

 

 

 

2005

 

 

Statements of claim filed:

 

2615

Trials set:

 

227

Trials heard:

 

63

JADRs set

 

233

JADRs heard:

 

192

 

 

 

2006

 

 

Statements of claim filed:

 

2539

Trials set:

 

257

Trials heard:

 

83

JADRs set

 

223

JADRs heard:

 

181

In reviewing statements of claims filed in comparison to the number of trials heard, only two to three per cent of the claims filed actually proceed to trial. The remaining 97 to 98 per cent of the statements of claim filed are settled, discontinued or abandoned.

In regard to the statements of claim set down for trial, only 23 to 32 per cent of the cases actually proceed to trial.

For JADR cases set down, 81 to 84 per cent of the cases proceed. The settlement rate is unknown, as the Court of Queen's Bench does not keep statistics in this area. In 2002, the Canadian Forum on Civil Justice reported that the Manitoba Court of Queen's Bench Judicially Assisted Dispute Resolution process provided an 85 per cent success rate. Anecdotal information indicates that the JADR settlement rate in Manitoba is in the range of 85 to 95 per cent, depending on the information source. Even without verifiable data, it is evident that the JADR process has been an immense success. Presently, in Manitoba, more cases are set down for JADR than for trial. Civil litigation matters are three-to four times more likely to proceed to JADR than to trial.

Judicially Assisted Dispute Resolution is an excellent dispute resolution mechanism. The advantages of JADR may be summarized as follows:

  1. Easy access: JADR may be initiated by a simple letter to the court, indicating that the parties want the dispute mediated by a judge. The only mandatory requirement is that an originating process must be filed in the Court of Queen's Bench (statement of claim or application).
  2. Flexibility: JADR can be started at a time convenient to the parties. JADR has no formal rules of procedure. The parties are free to fashion their own procedures with the judge.
  3. Informality: The rules of evidence and procedure do not apply. The parties are free to use any information that may be reasonably necessary to effect a settlement, even if the information would be inadmissible in a trial. The informal setting of JADR is more effective in getting the parties to communicate with each other. The informal setting is less stressful on the parties.
  4. Speed: It is faster to obtain a JADR date than a trial date. There are no procedural delays.
  5. Cost: It is cheaper to mediate than litigate. Generally, a JADR session will take approximately a half-day to a full day. The preparation for JADR is not as involved as a trial, as no witnesses are called.
  6. Non-adversarial: The parties attend JADR with a view to reaching a mutually acceptable resolution of their dispute. The trial process, in contrast, provides a “win-lose” result.
  7. Private and confidential: The JADR process is private and confidential. The court process is open to the public and the press. Many parties do not wish to have outside parties witnessing the dispute.
  8. Without prejudice: If JADR does not result in an agreement, the parties are free to proceed to trial. Any information disclosed in JADR cannot be used at trial.
  9. Control: The mediation process is driven by the parties. The JADR process can be tailored by the parties to meet the individual circumstances of the case.
  10. Choice of judge: A judge can be chosen not only for his or her skill in facilitating settlement, but also for expertise in a particular kind of dispute.
  11. Voluntary: Voluntary agreements tend to result in a higher rate of compliance. Mediation generally has a high settlement rate, depending on the kind of dispute.
  12. Parties with ongoing relationships: Parties may have to continue to deal with each other on a personal or business basis after the dispute is resolved. JADR can be used to preserve or restore the relationship of the disputing parties. A trial tends to polarize the parties.

When JADR was first introduced in Manitoba, a limited number of judges were available to provide JADR. Today, all judges of the Court of Queen's Bench are involved in JADR.

After operating in Manitoba for 10 years, JADR has proven to be an effective alternative dispute resolution operated by our courts.

For a more detailed version of this article, contact the author, George Derwin, via e-mail at gderwin@brockderwin.com.

Contents


Issues


The Motor Vehicle Manufacturers' Arbitration Program: CAMVAP
By George A. Derwin
Chair, Manitoba Bar Association Alternative Dispute Resolution
Section Chair, CBA National Alternative Dispute Resolution Section Legislation and Law Reform Committee

Established in 1994, the Canadian Motor Vehicle Arbitration Plan (CAMVAP) is an arbitration process to resolve complaints regarding motor vehicle manufacturing defects and warranty disputes between consumers and manufacturers. Consumers purchasing vehicles they feel are “lemons” may either file suit, in the alternative, seek arbitration through CAMVAP.

Members of the program include the provinces and territories of Canada, the Consumers Association of Canada, and the various vehicle manufacturers' and dealers' associations of Canada. Participating manufacturers include:

  • Chrysler Canada;
  • Ford Motor Company of Canada;
  • General Motors of Canada;
  • Honda Canada;
  • Hyundai Auto Canada;
  • Jaguar Canada;
  • KIA Canada;
  • Land Rover Group Canada;
  • Mazda Canada;
  • Mercedes-Benz Canada;
  • Nissan Canada;
  • Porsche Cars North America;
  • Subaru Canada;
  • Suzuki Canada;
  • Toyota Canada;
  • Volkswagen Canada; and
  • Volvo Cars of Canada.

The advantages of the CAMVAP process are as follows:

  1. Cost. The arbitration process is paid for by the automobile manufacturers and dealers. The arbitrator has the power to order a technical inspection of the vehicle by an independent expert, at no cost to the consumer.
  2. Speed. The process provides a set of rules designed to ensure the arbitration process is completed within 70 days. The arbitrator will issue an award within 14 days of completion of the hearing.
  3. Fairness. The process uses 120 independent arbitrators across Canada, of which 75 per cent are lawyers. CAMVAP reports that 70 per cent of the arbitral decisions have been in favour of the consumer. The arbitration process is conducted pursuant to the Manitoba Arbitration Act.
  4. Simplicity. Telephone your local CAMVAP office (called the “provincial administrator”), and they'll guide you through the process. A simple application form is all that's needed to start the process.
  5. Eligibility. Purchasers of most Canadian vehicles manufactured within the past four years are eligible for the process. For claims filed Jan.1, 2008-Sept. 29, 2008, the vehicle must have a model year of 2004 or newer. After Sept. 30, 2008, the vehicle must have a model year of 2005 or newer.
  6. Enforceable remedies. A CAMVAP arbitrator can order:
    • repairs to the vehicle;
    • vehicle buy-back (since 1994, 700 vehicle buy-backs have been ordered);
    • reimbursement for repairs; and/or
    • reimbursement for out-of-pocket expenses up to $500, including towing, taxis, hotels and other damages allowed by the program.
  7. Finality. There is no appeal, and the decision is only subject to judicial review (excess of jurisdiction, error in law, etc.).

A word of caution for consumers considering a cross-border purchase of a U.S.-manufactured vehicle: CAMVAP is only available to Canadian residents who have purchased vehicles through Canadian dealers or Canadian manufacturers. CAMVAP is only available if the vehicle was built for the Canadian market; however, if the manufacturer agrees to CAMVAP arbitration, the vehicle may become eligible. In other words, for CAMVAP to be available, the new or used vehicle must have been purchased from a manufacturer’s authorized dealer in Canada.

To obtain further information about CAMVAP, call 1-800-207-0685, or visit their website at www.camvap.ca

The Manitoba office of CAMVAP is operated by The Better Business Bureau of Manitoba:

Better Business Bureau of Manitoba
1030-B Empress Street
Winnipeg, MB R3G 3H4
204-989-9017
800-207-0685
Web: http://www.bbbmanitoba.ca/links.html
E-mail: camvap@mts.net

Contents


Issues


CBA Canadian Legal Conference and Expo 2008

Canadian Legal Conference and Expo 2008

Quebec City
Aug. 17-19, 2008
Quebec City Convention Centre

Alternative Dispute Resolution practice-focused presentation: Dynamism, Participatory Justice, and Quebec Justice
Monday, Aug. 18 from 9:30 to 11 a.m.

Contents


Section news


Call for Nominations

The National Alternative Dispute Resolution Section is seeking nominations for Secretary-Treasurer and up to 10 Executive Members for the term Sept. 1, 2008 to Aug. 31, 2009.

For further details, see the Section webpage.

Contents


Section news


National Alternative Dispute Resolution Section Newsletter – Call for papers
By Sheryl Beckford
News Editor, Alternative Dispute Resolution Section

We hope you enjoyed this edition of Possibilities.

The Section will put out a spring/summer edition of Possibilities and seeks your input. Please consider topics you would like to share that are of national interest to the ADR membership such as new developments in ADR, case summaries, stories about individual ADR practitioners, and developments of ADR in your jurisdiction.

Please send submissions by email to snbeckford@hotmail.com prior to Monday, May 5th.

We look forward to putting out another excellent edition of the newsletter.

Contents


Section news


Message from the Chair
By Serge Pisapia
Chair, National Alternative Dispute Resolution Section

I would like to take this opportunity, in this first edition of our newsletter for 2008, to welcome all Section members to the long-awaited spring.

This year is particularly meaningful for me because I have the privilege of chairing our Executive Committee, composed of dynamic members sincerely passionate about alternative dispute resolution.

Our annual meeting, held Oct. 29, 2007 in Toronto, demonstrated yet again the commitment and enthusiasm of representatives from every province toward the development and promotion of progressive modes of dispute resolution within the Canadian legal community and the general public. Timing our meeting with the annual conference of the International Academy of Collaborative Professionals allowed us to highlight the practice of collaborative law in family, as well as civil and commercial, matters.

Our objective for this year is to implement our Section’s mission, as redefined in our last annual meeting, through newly restructured committees.

As a result, the External Communications Committee is hard at work on a message for an awareness-raising campaign on the methods of ADR.

The Section's Continuing Legal Education Committee has organized a practice-focused presentation session during the Section's meeting at the 2008 Canadian Legal Conference in Quebec, featuring guest speaker Prof. Louis Marquis, on the future of the interaction between participatory justice and Quebec justice.

The Communications Committee is researching and compiling articles of interest for the ADR practice community for publication in this newsletter and for enhancing our Section’s website.

Finally, the Legislation and Law Reform Committee is considering the adoption and effects of the legislative changes regarding pardons in some Canadian provinces.

I invite everyone to participate in Section activities by providing us with your ideas and comments and sharing any information on the subject of ADR through the Section distribution list.

Contents


Section news

 



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