The Power of Perspectives

The Canadian Bar Association

Alexander Gay

Arbitration

Bringing the dispute in time

By Alexander Gay April 16, 2018 16 April 2018

Bringing the dispute in time

When to commence arbitration is no small matter for a business to consider, particularly when there is a time bar clause in its commercial agreement.  And yet time bar clauses, which can shorten the limitation period found in a provincial limitations law, are rarely used and often misunderstood by counsel.

A contractual time bar clause in an arbitration agreement will typically require a party to commence arbitration within a given period of time, failing which it will not be able to assert the claim either in an arbitration forum or before the courts (though this must be stated clearly).

This type of clauses offers the promise of bringing certainty into a commercial relationship; or parties will use it in circumstances where the evidence supporting a claim is susceptible to immediate loss.

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Litigation

Designing the right clawback agreement for privileged information

By Alexander Gay March 5, 2018 5 March 2018

Designing the right clawback agreement for privileged information

 

Think of it as “produce first and verify later”. 

With the growth of e-discovery use, counsel are relying more heavily on clawback agreements to mitigate against the inadvertent production of privileged documents. Here a few essential elements that should be considered by counsel when drafting such an agreement.

A clawback agreement should contain a provision that confirms that the inadvertent production of a privileged document does not constitute a waiver of privilege.  That may seem obvious, but the obligation that a party be made to return a privileged document is separate and apart from the waiver that may occur with from its production in the first place. 

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Arbitration

The consequences of ignoring costs submissions in arbitration

By Alexander Gay February 6, 2018 6 February 2018

The consequences of ignoring costs submissions in arbitration

 

How are costs to be handled by an arbitral tribunal?  Legislation in Ontario, as well as in most other Canadian jurisdictions, offers little guidance. After a number of attempts, the international arbitration community has also tried and failed to articulate clear guidelines for arbitrators. 

That’s in part because arbitral tribunals will typically defer to domestic law in making their assessments.  But different jurisdictions have different approaches to awarding costs.  And in Canada, we have few decided cases on the issue. 

There is, however, a new case out of the United Kingdom that speaks to the risks associated with failing to adequately deal with costs in arbitration. It could have some application here in Canada.

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Arbitration

Arbitration and the challenge of maintaining confidentiality in Canada

By Alexander Gay November 24, 2017 24 November 2017

Arbitration and the challenge of maintaining confidentiality in Canada

Confidentiality is often touted as one of the key benefit of arbitration.  But the promise of confidentiality is a tricky matter in Canada, where the open court principle is enshrined. The tension arises when courts find themselves in a position where they require access to documents produced during an arbitration proceeding.

And yet, the courts have a role to play in supporting arbitration.  They must be sensitive to the appeal commercial arbitration holds for parties and be mindful that a legal system that allows easy disclosure of confidential information risks undermining it.  What’s more, in a context where the courts are over-burdened with Jordan applications and where arbitration affords an opportunity to alleviate some of these pressures, the courts need to reach a delicate balance between the open court principle and the confidentiality provisions of an arbitration agreement.

In Ontario, the Arbitration Act and the International Commercial Arbitration Act contain a number of provisions that allow arbitration issues to be put before the courts.  The same holds true in almost all other provincial jurisdictions.

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Technology

The use of predictive coding in Canada

By Alexander Gay October 30, 2017 30 October 2017

The use of predictive coding in Canada

 

The last few decades have seen an explosion of electronic information which counsel must manage to meet production obligations under the Rules of Civil Procedure.  These obligations remain intense and costly.  Technology can help to lessen the burden, such as keyword searches.  Perhaps the most promising tool to help us tame the electronic information beast is “technology-assisted review,” also called predictive coding.  However, to reach its full potential will require wider acceptance of this review method by counsel and the courts.

Predictive coding is a method where software analyses documents and ranks them for relevance.  Typically, parties agree on a protocol or a methodology in advance.  A representative sample of potentially relevant documents is then drawn from the database.  We call these “seed documents”.   A lawyer will review the initial sample, then rate its relevance to "train" the software to review the whole production.  There is then further statistical sampling to ensure that the exercise is fully responsive.  Once it reaches an acceptable level of accuracy, the software then categorizes all the documents for the parties, without the parties having to manually review any more documents.  

While it all sounds complicated, it is not. And predictive coding has a number of important advantages. It costs a fraction of what it would to review documents manually.  It is faster and more accurate than traditional document review. 

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