Here Is A Sample: The Speedy Justice Agreement

Here is a pro forma draft of the Agreement. I welcome any comments.

Court File No.: CV-?

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ONTARIO

SUPERIOR COURT OF JUSTICE

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AND IN THE MATTER OF THE ARBITRATION ACT, 1991 SO 1991 c. 17 AS AMENDED

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AND IN THE MATTER OF THE SUBMISSION OF CERTAIN INTERLOCUTORY DISPUTES TO MEDIATION AND ARBITRATION PENDING TRIAL OF THE ACTION IN THE ONTARIO SUPERIOR COURT

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B E T W E E N:

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ABC INC.

Plaintiff

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- and -

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CED LTD.

Defendant

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SPEEDY JUSTICE AGREEMENT

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WHEREAS the Plaintiff commenced the captioned Action (the Action);

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AND WHEREAS the Defendant has defended the said Action;

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AND WHEREAS the Parties agree that the Action shall be tried by a Judge of the Superior Court, but wish to submit upon election by the parties certain or all pre trial motions, issues, controversies, and disputes, including the timing and scheduling of such matters to binding Arbitration and non-binding Mediation.

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AND WHEREAS the parties hereto, in consultation with their respective lawyers have determined that they wish to enter into this binding SPEEDY JUSTICE AGREEMENT (SJA) to deal with any or all such pre-trial interlocutory, interim or final matters, motions, controversies, disputes and proceedings that may arise in the Action;

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AND WHEREAS the parties hereto are entering into this SJA to document their submission of any or all pre-trial issues, proceedings, disputes, controversies, motions, and steps, be they final or interlocutory in nature, to Arbitration or Mediation as the case may be.

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AND WHEREAS the parties and their counsel have each agreed that each of them wishes to secure the just, most expeditious and least expensive determination of the proceedings, which are the subject matter of this SJA.

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AND WHEREAS the Parties and their respective counsel agree to act in good faith, and to do all things reasonably necessary to comply with the spirit and intent of this SJA.

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AND WHEREAS the Parties acknowledge and agree that the procedure, process and protections of the Arbitration Act, 1991 and Rule 24.1 of the Rules of Civil Procedure, where applicable, shall govern the performance of this SJA;

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NOW THEREFORE THE PARTIES HERETO AGREE with each other to make this SJA on the terms and conditions hereinafter set out, and to settle or deal with the issues as between them as hereinafter set out.

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APPOINTMENT OF THE ARBITRATOR/MEDIATOR

1.???????????? The parties hereby jointly appoint Gary M. Caplan to act as Arbitrator and Mediator for all Issues as hereinafter described before trial that may arise in the Action by the following terms.

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2.???????????? The parties acknowledge that:

a)???????????? They are satisfied that the Arbitrator is impartial and has no interest in the dispute; and

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b)??????????? The Arbitrator’s retainer can only be terminated by joint agreement of the parties communicated to him in writing or by Court Order.

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THE ISSUES

3.???????????? The parties agree that upon their joint election:

a)???????????? The matters to be subject to this Agreement (hereinafter the Issues) are as follows.

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i)?????????????? All or any pre-trial motions, steps, proceedings, controversies and disputes, be they final or interlocutory in nature, arising from, in relation to, or in connection with the captioned Action including and not limited to matters relating to pleadings, discoveries (documentary and oral), motions for summary judgment, injunctions, and all pre-trial remedies contemplated by the Rules of Civil Procedure, and where applicable, the Courts of Justice Act;

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ii)???????????? Any other Issue that the parties may agree, should be the subject of this Agreement, including the determination of the ultimate issue or issues in the Action.

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iii)?????????? All or any Issues or disputes relating to the timing and the case management of the Action including the scheduling for the completion of any step or steps required to advance the proceedings in a cost-effective, efficient, and orderly fashion or manner; and

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iv)?????????? The parties may agree that there shall be no party and party costs awarded in respect of the Issues or the costs regime of the Rules of Civil Procedure or the Act may be followed in which event the Arbitrator shall award costs accordingly.

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v)???????????? The mediation of any issue in the action and to this extent the parties hereby waive Section 35 of the Act and such mediation shall be conducted as set out below.?

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THE PROCESS

4.???????????? Other than for the mediation process described below, the process of this SJA shall:

a)???????????? be an adjudicative process;

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b)??????????? Result in a written decision or decisions on the issues raised, each of which shall be deemed to be a final Award within the meaning of the Arbitration Act, 1991 and not subject to appeal.

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5.???????????? The Arbitrator shall be entitled to make such interim and interlocutory or where applicable final orders, declarations, or determinations that he in his sole discretion determines are necessary, including but not limited to those interim, interlocutory, or final orders contemplated by the Rules of Civil Procedure and where applicable the Courts of Justice Act.

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6.???????????? The parties, by executing this Agreement, undertake to forthwith comply with same.

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7.???????????? The Arbitrator agrees that any interim or interlocutory orders or determinations shall be rendered in writing to the parties with copies to the respective lawyers for the parties.

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8.???????????? The parties agree that:

a)???????????? The Arbitrator has the absolute and exclusive authority to decide any or all of the issues to be arbitrated.

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b)??????????? Each interim, interlocutory, or final orders, awards, or determinations (the Award or Awards) ?shall be final and binding and not subject to appeal unless the Parties agree otherwise.

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c)???????????? Where necessary, a party may engage the processes of the Arbitration Act and the Ontario Superior Court as an aid to the enforcement of the Award or Awards of the Arbitrator.

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9.???????????? Issues to be arbitrated shall proceed in the following manner:

(a)?????????? All timing or scheduling of all Issues, which are the subject matter of this Agreement, including the setting of the time and place of the hearing or hearings shall be in the sole and unfettered discretion of the Arbitrator.

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(b)????????? The Parties shall meet or confer with the Arbitrator to determine and clarify the Issues prior to a hearing.

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(c)?????????? The parties shall cooperate with the Arbitrator and with each other to permit the hearing to be completed in an orderly and timely fashion; and

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(d)????????? The Parties acknowledge and agree that the Arbitrator shall determine the procedure to be followed in respect of the determination of each of the Issues.

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10.???????? This Agreement and the process contemplated shall be governed by the provisions of the Arbitration Act, 1991, SO 1991 c.17 as amended and where the provisions of that Act shall conflict with the provisions of the Rules of Civil Procedure, the Act shall prevail.

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11.???????? The laws of the Province of Ontario shall be applied in the interpretation and application of this Agreement and the conduct of each of the parties in respect of their obligations and performance with respect to same.

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CONDUCT OF THE HEARINGS

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12.???????? The Arbitrator may rule on his jurisdiction to conduct hearings and in particular as to whether any Issue is to be properly considered as part of this SJA.

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13.???????? The Arbitrator shall provide each of the parties with an opportunity to present a case and to respond to the other’s case.

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14.???????? The Arbitrator shall be at liberty in his absolute discretion, to determine the time periods in which to conduct the hearings or proceedings under or pursuant to this Agreement or any part thereof.

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15.???????? The parties waive the right to make application to the Court in respect of any interim or interlocutory or final order or question as to the jurisdiction of the Arbitrator pursuant to s. 17(8) of the Act.

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16.???????? Subject to the provisions of this SJA, the Arbitrator is bound by the provisions of the Act and the terms of this Agreement.

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17.???????? If there shall arise any procedural matter for which there is no provision in this Agreement, the Arbitrator shall have the sole and absolute discretion to determine such matter.

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18.???????? The Arbitrator shall treat the parties fairly and conduct the process contemplated by this Agreement judicially, allowing the parties the opportunity to present their case without procedural obstruction.

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19.???????? The rules of evidence shall apply to the Arbitration process as if the matter, issue, or controversy was to be resolved by a Judge or Associate Judge of the Superior Court by way of interlocutory motion.

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THE AWARD(S)

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20.???????? The Arbitrator shall decide the issues under law, including equity.

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21.???????? No party may appeal any Award of the Arbitrator except as may be agreed to.

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MEDIATION OF THE ISSUES

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22.???????? This provision applies if the parties select the Arbitrator to mediate the Action under Rule 24.1 of the Rules of Civil Procedure or any of the issues to be determined by Arbitration.

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23.???????? The parties recognize that the Arbitrator may receive relevant information while acting as Mediator during private caucuses and otherwise and agree that this will not impair the ability, status, or jurisdiction of the Arbitrator to proceed as Arbitrator if the Action is not settled by Mediation.? The Mediation phase will terminate if the parties reach a settlement of all outstanding issues or if the Mediator/Arbitrator determines in his sole and unfettered discretion that the Mediation process should be terminated. If the Mediation is terminated, the Arbitration process will begin or continue.

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24.???????? All written and oral communication at the mediation session shall be deemed to be without prejudice settlement discussions.? For this section, mediation communication shall include all conduct, statements, promises, offers, views, opinions, admissions, and communications for purposes of considering, initiating, continuing, or reconvening a mediation or retaining a mediator together with the delivery and exchange of any documents during the mediation made by any party, their agents, employees, representatives or other invitees and by the mediator.

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25.???????? The parties agree that:????????????????????????????????

a)???????????? the mediation is a settlement negotiation;

b)??????????? the mediation is confidential and no stenographic, visual, or?? audio recordings shall be made;

c)???????????? all mediation communication shall not be discoverable or admissible for any purpose including impeachment in the Arbitration involving these parties and shall not be discussed with anyone not an agent, employee, expert witness, or representative of any of the parties, provided that mediation communication otherwise admissible or subject to discovery does not become inadmissible or protected from discovery or admission because of its use in mediation.

IMMUNITY OF THE ARBITRATOR

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26.???????? The Parties agree that the Arbitrator shall have the same immunity from liability as a Judge of the Superior Court of Justice of Ontario under the Courts of Justice Act.? Without limiting the foregoing, the Arbitrator and/or his notes and records are not compellable in any legal proceeding except as required by law.

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EXPERTS

27. The parties and counsel acknowledge that they may or have retained, employed, or consulted with experts who may have been retained or employed by the mediator in the ordinary course of his practice of law.? The mediator shall disclose such retainer or retainers, and the parties hereby expressly waive any appearance of conflict or apprehension of bias arising therefrom.??

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FEES, EXPENSES AND INDEMNITY

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27.???????? The lawyers agree that the fees and expenses of the Arbitrator set out in Schedule A shall be paid by lawyers, in equal shares, unless explicitly stated otherwise.? The Arbitrator will not look to the clients of the lawyers or the parties for payment.?

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28.???????? The lawyers acknowledge and agree that the fees and expenses are non-refundable in whole or in part.

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29.???????? Each of the Parties and their respective lawyers hereby jointly covenant and agree to indemnify and save the Arbitrator harmless from and against any liability, cost, claims, expenses, demands, proceedings, and causes of action howsoever arising under this Agreement or as a result of the conduct of the Arbitration and its consequences.

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GENERAL

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30.???????? This Agreement has been reviewed by the respective lawyers for the parties and the parties acknowledge that they are satisfied with its terms.

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31.???????? This Agreement shall be executed in counterparts which execution shall be effective to the same extent as if executed by one copy.? Execution and delivery by email or fax shall be deemed to be sufficient execution of the within Agreement.

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IN WITNESS WHEREOF the parties have hereunto set their respective corporate seal attested by the hand of a duly authorized officer in that regard and affixed their hands and seals on the date set out herein.

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Dated at Toronto the ______ day of ____________________, 2024

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Plaintiff

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Per: ________________________

(Authorized Signature)

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____________________________ ????

Lawyers for the Plaintiff

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Defendants

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Per: ________________________

(Authorized Signature)

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____________________________ ???? Lawyers for the Defendant

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I Accept This Appointment As Arbitrator

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SCHEDULE “A?

OPTION A :??

$7500 plus HST per party. Under this option, the number of interlocutory motions that you can bring shall be limited to three and one Rule 24.1 mediation of the Action shall be limited to one-half day. The cost shall include all preparation and Award writing.

OPTION B: ?

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Pay as you go: The cost is $1875.00 per party for a half-day motion and $3750.00 per party for a full day motion, plus HST. ??The cost shall include all preparation and Award writing by the Arbitrator

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