Law Times

Law Times • apriL 11, 2016 Page 11 www.lawtimesnews.com FOCUS New in this edition • Updated Case Law: — R. v. Nur (2015, S.C.C.) – Where mandatory minimum sentencing laws are challenged, the question is what situations may reasonably arise, not whether such situations are likely to arise in the general day‑to‑day application of the law — Carter v. Canada (Attorney General) (2015, S.C.C.) – Court struck down the law prohibiting physician‑assisted dying as unconstitutionally overbroad in violation of s. 7 — R. v. Geddes (2015, Ont. C.A.) – Crown must prove beyond a reasonable doubt that accused secured the complainant's apparent consent by the exercise of coercive authority over the complainant • Legislative Amendments: — Victims Bill of Rights Act (S.C. 2015, c. 13) — Combating Counterfeit Products Act (S.C. 2014, c. 32) — Protecting Canadians from Online Crime Act (S.C. 2014, c. 31) — An Act to amend the Criminal Code and the National Defence Act (criminal organization recruitment) (S.C. 2014, c. 17) — An Act to amend the Criminal Code (personating peace officer or public officer) (S.C. 2014, c. 10) Get access to the three formats: hardcover book plus CD‑ROM plus Thomson Reuters ProView™ eBook beginning with the 2016 edition.* *ProView not available to bookstores, academic institutions, and students New Edition Martin's Annual Criminal Code, 2016 Edition With Annotations by Edward L. Greenspan Q.C., The Honourable Justice Marc Rosenberg, and Marie Henein, LL.B., LL.M. Order # 804735-65203 $120 Hardcover + CD‑ROM + eBook approx. 2540 pages August 2015 978‑0‑88804‑735‑9 2 additional annotated supplements $20–$30 per supplement Annual volumes supplied on standing order subscription e‑Notes delivered by email on standing order subscription Multiple copy discounts available Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00235KX‑A54109 CANADA LAW BOOK ® How to solve consumer disputes Creativity in consumer arbitration BY JUDY VAN RHIJN For Law Times E ven advocates of alternative dispute resolution admit that arbitration and consumer disputes don't go well together. The question is is there a better option, and if not, what can be done to make arbitration more appropriate? While investment in new processes needs to come from the corporate sector, arbitra- tors are still waiting for the call to design a custom-made solution. "e reason consumer disputes are thought of differently to other disputes is that they usually involve small amounts, there is a large power imbalance, and there is a desire to get the dispute resolved quickly," says Allan Stitt, president of ADR Chambers in Toronto. "ese issues are not necessarily rel- evant to all other kinds of disputes." Marvin Huberman, a mediator and ar- bitrator at ADR Chambers, observes con- sumer disputes pose both challenges and opportunities to ADR practitioners and ADR itself. "e acronym for alternate dispute resolution also stands for 'appropriate dis- pute resolution.' You must strive to choose the most appropriate process with the goal of increasing settlement, having regard to three things: the people, the problem, and the process. If you can fit all those into a tailor-made process, it's a terrific oppor- tunity to meet the praiseworthy goals of ADR," he says. Huberman cites several reasons why arbitration of consumer dis- putes is generally a bad idea. "e costs and expenses of arbitration, in the majority of consumer cases, will be higher than court costs, mainly because you have to pay the arbitrator. Arbitration doesn't guarantee that a consumer will stay out of court. ey will oen need interim remedies to preserve the status quo or to get documents, so they need to go to court in any event." Stitt says that, at this point, people might ask what other options they have. "Do you give up and give the company your money and do nothing, or do you self-help and commit a crime? Or you could go to court. ey are all far worse choices than arbitration," he says. Stitt says there is a general consensus that the courts are not an option. "Even the Small Claims Court is far too time-consuming and expensive when you are arguing over $25 or even $500. If you pay the filing fee and factor in anything for your time, it makes no sense," he says. Huberman is not so pessimistic. "I think most people are overlooking the utility of the Small Claims Court," he says. "In Ontario, there is a monetary limit of $25,000 exclusive of costs. I'd venture a guess that almost all consumer disputes will fall within the limit. It is specifically geared for people who don't have the mon- ey or inclination to engage counsel." He says the mandatory settlement con- ference can be used as mediation. "Most matters settle before trial, or you can get a binding decision in a fairly short period of time at little cost," he says. Huberman also recommends media- tion and the growing field of on-line dis- pute resolution. "Mediation is really the presumptive fallback for most disputes, commercial and consumer. ere are very few that are not appropriate to at least at- tempt to resolve through mediation," he says. He observes that on-line dispute reso- lution is gaining tremendous acceptance, particularly in the U.S., and in Canada, too. Huberman says, "eBay and PayPal claim they have 60 million disputes per year, 90 per cent of which are resolved without any human input. ese disputes are too ex- pensive to litigate or arbitrate. ey are for small amounts and involve people who are not sophisticated. Online dispute resolu- tion is a must." Stitt is not giving up on the arbitra- tion route, but he warns that creativity is required. "When people use the term "ar- bitration," they have a set idea of what it means. It does not mean a hearing. It does not mean witness cross-examination. ere are enormous opportunities for cre- ativity." He suggests that one possibility is for the consumer and the company to each send in a page of information to the arbitrator, who reads them and makes a decision. Another is the double-blind automated mediation process offered by ADR Chambers. "If both parties agree they want to settle, they send in confidential offers to an auto- mated mediator. If the offers overlap, they are advised of the amount. It doesn't cost anything and it only takes a few minutes," Stitt says. "e real challenge is that the difficul- ties with consumer arbitration are not difficulties for the company," he notes. "Its only incentive is in respect to customer relations — a hope that the dispute can be resolved in a way that maintains a way of the consumer coming back, or at least not badmouth the company." Stitt is hoping that, in the next five years, the more forward-thinking compa- nies will move to forward-thinking arbi- tration systems. "We can work to customize arbitration with companies on a case-by-case basis, depending on the type of disputes they have and the volume of disputes, so that the process and the process costs make sense. With a small amount, it only works if the company buys into a very specific arbitra- tion program in advance. Few consumers will see court as an option, so they may see arbitration as the best chance they have." LT Allan Stitt says there are enormous opportunities for creativity in arbitration.

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