Sébastien Richemont – Litigation
Dispute in business is inevitable. It is an integral part of growing a business, succeeding within it, and maintaining that success. It is how disputes are handled that matters. By consulting experienced and skilled legal experts, disputes may not always be avoided entirely, but they can be navigated effectively and a solution beneficial to all involved is more likely to be settled.
In this expert insight feature, Sébastien Richemont, Partner at Woods LLP, a Canadian law firm, gives his outlook on the Canadian litigation system, referring to statutory obligations, class action certification, and the extent of ADR methods in disputes.
According to a recent Litigation Trends Annual Survey commissioned by Norton Rose Fulbright, companies globally are facing a more litigious business environment as they are faced with growing legal challenges. What are these legal challenges in your experience?
The main challenges our clients face are twofold. On one hand, they face increasing statutory obligations in many fields (consumer protection, product liability, securities legislation, and D&O liability, to name but a few), and even a minor breach can lead to a class action or to enforcement actions by various regulators. On top of that, public companies have to deal with the growing expectations and increased scrutiny of shareholders. To meet these challenges, clients should have a strong in-house team that ensures compliance with the numerous statutory regimes and that works proactively to avoid litigation. If litigation is inevitable, I believe that hiring litigation specialists with extensive trial experience is essential.
How tough is the Canadian litigation system on defendants? Is the Court process particularly complex?
Each Canadian province has its own court system and the approach can be quite different from one province to the other – hence the importance of having local counsel as part of the defence team. Courts and legislators are trying to simplify, harmonize and speed up the court process, with varying degrees of success, but substantial differences remain from one province to the other. For example, it is generally much easier to certify class actions in Quebec than in other provinces, and Quebec is therefore perceived as a jurisdiction that is friendly to the plaintiff class action bar. Quebec also has specific consumers’ protection legislation. As a defendant, you must be sensitive to these differences and adapt your strategy accordingly. I believe that any good case, including on the defence side, deserves a quick hearing. Across Canada, the biggest challenge is obtaining a hearing date in a reasonable amount of time and not getting bogged down in procedural and discovery sideshows.
What quirks does the Canadian litigation system possess that make it unique?
Canada’s private law system is built around both the Common Law (in nine provinces and the three territories) and French Civil Law (in the province of Quebec). Over the years, our Supreme Court has occasionally imported Common law principles into the Civil law, or the other way around. I would not go as far as to say that we have a hybrid system but we definitively have a unique one.
You work on international cases and domestic, often as arbitrator or mediator; to what extent would you say Canadian disputes are resolved via ADR methods as opposed to litigation?
The current trend is to try to mediate as many cases as possible. We have no precise statistics on arbitration, but it is not as prevalent as it was fifteen years ago when arbitration clauses were almost automatically included in all commercial contracts. However, I expect a resurgence as businesses try to avoid the courts in favour of arbitration or other forums to resolve disputes. For most companies, it is no longer an option to wait up to ten years to have a final resolution of a legal problem.
Are there any changes that you think would make your job easier?
The end of the hourly billing model!
