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

Who Decides If There Is An Appeal From A Court Order Requiring Arbitration: The Parties Or The Court?

One of the first issues that can arise in a dispute is whether arbitration or court proceedings must be pursued. The issue will often arise from a motion by a defendant in the action.  The defendant will bring a motion to stay or dismiss the action on the basis that the dispute must be arbitrated. […]

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Does A Mediation Agreement Suspend The Limitation Period Or The Period To Set Down A Lien For Trial?

An agreement to mediate is often found in arbitration and building contracts. Yet, the impact of mediation upon court or arbitral proceedings is uncertain. Does an agreement to mediate mean that, until the mediation occurs, there is no cause of action and therefore there is no entitlement to commence arbitration or an action?  In that […]

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Is An Agreement To Mediate Enforceable?

A recurring issue in arbitration and construction law is whether an agreement to mediate is enforceable. That is because an arbitration or building contract may contain a clause imposing an obligation to mediate before arbitrating. If the agreement to mediate is enforceable, that likely has certain consequences.  The limitation period is likely not running and […]

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Is A Third Party Obliged To Bring Its Claim Under An Arbitration Agreement?

A recurring issue in arbitration law is whether a third party is bound to assert his or her claims by way of arbitration, even though the third party is not a party to the arbitration agreement. In Yaworski v. Gowling Lafleur Henderson LLP, the Alberta Court of Appeal recently held that, where a limited partnership […]

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ULCC Working Group Issues Discussion Paper on a new Uniform International Commercial Arbitration Act

In January 2013, a Working Group of the Uniform Law Conference of Canada (“ULCC”) issued a Discussion Paper with respect to proposals for a new Uniform International Commercial Arbitration Act. The Discussion Paper is intended to generate consultations by May 2013 and final approval by the ULCC in August 2013.  Background to the Discussion Paper […]

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Does The UNCITRAL Model Law Apply To A Claim Under The Consumer Protection ACT?

The Queen’s Bench Court for Saskatchewan recently applied the Saskatchewan International Commercial Arbitration Act (SICAA) and the UNCITRAL Model law annexed to that Act and stayed an action based on the Saskatchewan Consumer Protection Act and a contract which was apparently between two Canadian entities. The decision in Zwack v. Pocha is important for two […]

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Can An Arbitration Award Be Set Aside For Unreasonableness?

If an arbitration agreement states that there is to be no appeal from the award under the agreement, can a party seek judicial review on the ground that the award is unreasonable?  In Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, the Supreme Court of Canada set out a comprehensive analysis for the judicial review […]

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Six Points To Consider Before Commencing An Arbitration

On October 10, 2012, I gave a speech at an Advocates’ Society program.  The program was  entitled Arbitration is the New Black.  My presentation focused on seven issues which should be addressed when a party is contemplating the commencement of an arbitration. Starting the arbitration seems like the easiest thing in the world.  After all, […]

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The New Canada-China Foreign Investment Agreement: Will the UNCITRAL Arbitration Rules Result In Enforceable Justice?

Canada has recently signed a Foreign Investment Promotion and Protection Agreement (FIPA) with the People’s Republic of China.  Under the Agreement, a complaining investor is entitled to submit a claim and have it dealt with under the UNCITRAL Arbitration Rules.  The real questions about this Agreement are: Will the UNCITRAL Arbitration rules in FIPA provide […]

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Is Certainty An Essential Element Of A Building Contract?

Overview Courts are often unwilling to hold that an agreement is unenforceable for uncertainty when, by all appearances, the parties intended to make a contract.  But in a very spirited and colourful judgment, the Court of Appeal for Alberta has recently weighed in very heavily on the need for certainty in any contract, and particularly […]

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