William E. Demers
Please see disclaimer below*
“The general who wins a battle makes many calculations in his temple before the battle is fought. The general who loses a battle makes but few calculations.”
Commercial disputes are an unwanted part of doing business, to say the least. They are sapping in time and resources, often causing considerable mental and emotional anguish to the parties involved (and those indirectly involved, such as family). Obtaining a favourable award or successfully thwarting an action comes at a cost.
While steps should always be taken in any commercial transaction to limit liability, properly define relationships, mechanisms and forums for curing breaches or resolving differences, and to obtain necessary indemnifications and guarantees where available and appropriate, conflict is sometimes unavoidable. If you are facing or embroiled in conflict, qualified legal representation is vital.
Where private grievances are concerned, the common law in Canada (as received from England and formalized by statute) is adversarial in nature. Parties with appropriate standing and a valid cause of action may bring suit before a court of competent jurisdiction seeking such relief as is appropriate.
Plaintiffs typically seek damages (monetary compensation), be they expectation damages, consequential damages, pecuniary damages, liquidated damages, aggravated damages or punitive damages. Other remedies exist, such as orders of specific performance (an order by the court for a party to perform an act to satisfy its obligations under a contract), injunctions to compel or prevent certain actions where inaction or action would otherwise threaten a party’s legal rights, declarations, rescission, rectification, etc.
Whichever remedies are pursued, litigants must understand their eligibility or bars to different forms of common law and equitable relief.
Private mediation and arbitration are also well-established modes of alternative dispute resolution. Mediation is a non-binding process where an independent party attempts to mediate between the parties to assist them in reaching a resolution. Arbitration is binding and may involve a panel of one or more arbitrators who will decide a matter according to the rules of the arbitral body to which the parties are subject.
Contracts often impose a requirement for mandatory mediation prior to a dispute’s escalation or arbitration instead of litigation (often with carve-outs in certain circumstances, e.g., where injunctive relief is required to preserve a party’s rights). While alternative dispute resolution is often considered beneficial from the standpoint of expediency, cost and privacy, it can also be viewed as problematic for depriving parties of the full rigour of a court.
If you are involved in a commercial dispute, concerned one may arise or are looking to structure your transactions defensively, and require counsel or formal representation, please feel free to give me a call to discuss.
William E. Demers
Business Lawyer & Litigator
* The above article provides information of a general nature and does not constitute legal advice or the formation of a lawyer-client relationship.