UTGB Vol 5.pdf - Robson Hall Faculty of Law

130 Undern ath the Golden Boy
disputes with franchisees, 168 franchise legislation in Manitoba should
incorporate a;dispute resolution provision.
In doing so, Manitoba should adopt a different approach than the ULCC and
focus on both mediation and arbitration. Although the former is a useful tool
for franchise dispute resolution, franchise legislation should also address an
ADR method that does not rely on a party's willingness to participate for
success. Franchisors may have more resources to pursue litigation than
franchisees and may thus not cooperate throughout the mediation process.
Therefore, a binding method of resolving disputes, such as arbitration, will be
necessary.
Ontario a1d ·P.E.I. have adopted dispute resolution provisions that focus on
what must be disclosed, whereas New Brunswick, by following the UFA, has
adopted dispute resolution provisions that outline the process to be followed.
Manitoba should adopt a provision similar to Ontario and P.E.I. and not New
Brunswick, as the latter forces the parties to mediate, even when they may not
have mutually agreed to do so. Therefore, Manitoba's provision should not
dictate what process ought to be followed, instead only stating what must be
disclosed. ·
Attempting to preserve clarity, Manitoba's provision should require more detail
than both Ontario and P.E.I.'s. Whereas s. 5(1) of Ontario's franchise
regulations orily requires a description of the mediation or ADR process, Part
III, s. 16 of P.E.I.'s regulations adds the disclosure of any requirements relating
to the location or venue of such a process. Although P.E.I. was on the right
track by requiring more detailed disclosure, it still maintains Ontario's
vagueness. Thus, Manitoba should adopt more detailed provisions, allowing a
franchisee to know exactly what will take place in the event of a dispute.
If a franchisor chooses to resolve matters through mediation or arbitration,
Manitoba franchise legislation should require that all elements should be
outlined in the disclosure document. For example, an arbitration provision
should explain the methods for selecting an arbitrator, governing rules for
arbitration, special characteristics or experience of the arbitrator, costs of
arbitration, governing law of arbitration, venue of arbitration, and
confidentiality. 169
In contrast, a' mediation provision must cover elements such as the matters
accepted for mediationj a requirement that mediation is to proceed prior to the
matter being brought before a court, other tribunal or arbitrator; the mechanics
168
Gagnon, supra note 154 at 13.
169
Joseph Adler & Frank Zaid, "Drafting Franchise Agreements in the 2l't Century,'' {Paper
Presented to the Ontario Bar Association's Third Annual Franchise Law Conference:
Franchising in a New World of Disclosure, 2003), [OBA Continuing legal Education:
Toronto, 2003] at 26.