Thomas G. Heintzman, O.C., Q.C., FCIArb

A Mediation Obligation Is Enforceable Says The Ontario Court Of Appeal

Is a person bound to mediate before commencing an action or arbitration if the contract or applicable statute requires mediation? Or should an obligation to mediate only become effective after an action or arbitration has been commenced? And if mediation is a pre-condition to suing or arbitrating, does the limitation period run before the mediation […]

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Ontario Court Has No Power To Extend Period For Setting Aside A Domestic Arbitral Award

In R & G Draper Farms (Keswick) Ltd. v. 1758691 Ontario Inc., the Ontario Court of Appeal recently held that an Ontario court has no power to extend the time for an application to review or appeal from a domestic arbitration award. This is an important decision for anyone involved in arbitrations, especially in light […]

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English Courts Enforce An Obligation To Mediate And Negotiate

The articles on this site have often alerted the readers to the hidden dangers of mediation and negotiation clauses in construction contracts. The principle danger is that these sorts of clauses may be unenforceable, for two reasons. The wording of the particular clause may be drafted in such a way as to create no enforceable […]

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Does An Informal Agreement To Mediate Stop The Limitation Period From Running?

Mediation seems like apple juice:  no harm in taking it and it might do some good. But mediation has a trap:  the limitation period. If a party enters into mediation and lets the limitation period go by, then that’s real harm. In a number of reported cases, one party to a mediation did exactly that […]

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Alberta Court Of Appeal Upholds The Dismissal Of A Claim Which Ought To Have Been Arbitrated

One challenge facing a party to an arbitration clause is preserving a claim against the running of the limitation period. Starting the wrong claim may mean that the claim will be dismissed. That is now apparent from the recent decision of the Alberta Court of Appeal in A.G. Clark Holdings Ltd. v. HOOPP Realty Inc.. […]

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