UTGB Vol 5.pdf - Robson Hall Faculty of Law

132 Underneath the Golden Boy
through a mandatory mediation program may very well be a waste of time and
money in such instances. A mandatory mediation program should therefore not
be adopted in Manitoba.
A mandatory arbitration scheme lacks many of the disadvantages of mandatory
mediation. Since arbitration is a binding method of solving disputes, it means
that, once agreed upon, it will resolve the dispute between the parties, and
absent some specific circumstance, the parties will have no further recourse or
appeal rights after a decision is reached. 175 However, even many supporters of
ADR fear the ramifications of mandatory arbitration. Jean H. Gagnon, Vice.-
President of the Alternative Dispute Resolution Section of the Quebec Division
of the Canadian Bar Association and member of the Mediation and ADR
Committee of the Quebec Bar, argues that it is too delicate and dangerous to,
by law, force the parties to a franchise dispute to resort to arbitration or any
other ADR process. 176
When considering arbitration as a mandatory means of conflict resolution, it is
necessary to realize that a dispute resolved through arbitration can be as costly
in terms of fees and costs as a case going before a court. Furthermore, if one of
the parties is litigious in nature or is drawn to arbitration ainst its will,
arbitration can also be a slow process which may take months and, sometimes,
years before a final decision is reached and enforced. 177 Therefore, a mandatory
arbitration scheme would also fail to provide a desired alternative method to
litigation.
In conclusion, Manitoba . should adopt neither mandatory mediation nor
mandatory arbitration and should only introduce provisions dealing with a
franchisor's disclosure requirements with regard to what ADR means it will
adopt when a dispute arises.
This concludes the list of issues for consultation suggested by the Manitoba Law
Reform Commission in the Consultation Paper on Franchise Legislation.
F. Additional Suggestions
1. Exclusions on Oral Representations During the Franchise Sale Process
In order to prevent a franchisor abusing a franchisee by making oral
representations that will not be enforced, Manitoba should follow the UFA,
P.E.I.'s Act and New Brunswick's Bill and incorporate an exclusion for oral
arrangements. Section 2(3) of the UFA, the Arthur Wishart Act (Franchise
75
So, supra note 71 at 261.
176
Gagnon, supra note 154 at 13.
177
Jean H. Gagnon, "There Must be a Better Way to Resolve Franchise Disputes!" (2006),
online: Jean H. Gagnon Consulting Services at 2.
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