Underneath the Golden Boy - Robson Hall Faculty of Law

340 Underneath the Golden Boy
disputes. 155 Due to the importance of ADR to both franchisors and franchisees, it
is necessary to determine how Manitoba will address the subject in its franchise
legislation. The questions facing Manitoba with regard to ADR are twofold.
First, what should be disclosed to the franchisee in pre-contract documents
Second, should ADR be mandatory Prior to addressing either issue, it may be
helpful to consider how the various legislated Canadian jurisdictions and the
UFA deal with ADR.
1. Dispute Resolution Provisions in Canada and the ULCC
i. Ontario
Ontario addresses the issue of ADR in section 5 of the Regulations Made Under
the Arthur Wishart Act (Franchise Disclosure), 2000. 156 The section requires
that where a franchisor will use an internal or external alternative dispute
resolution process, a disclosure document shall include a description of the
mediation or other ADR process and the circumstances when the process may
be invoked. Furthermore, as per s. 5(2), every disclosure document shall state:
Mediation is a voluntary process to resolve disputes with the assistance of an independent
third party. Any party may propose mediation or other dispute resolution process in
regard to a dispute under the franchise agreement, and the process may be used to resolve
the dispute if agreed by all parties.
In other words, Ontario requires that a franchisor who chooses to use ADR
disclose all elements to the franchisee in the disclosure document. Franchise
legislation in Manitoba should adopt a similar provision to ensure that
franchisees are aware of what action a franchisor may or may not pursue.
In Toronto Truck Centre Ltd. v. Volvo Trucks Canada Inc., 157 an agreement
included a dispute resolution process that provided for binding mediation of any
dispute, including a dispute for termination of the agreement. The manufacturer
purported to terminate the agreement without notice, and the dealer applied for
an interlocutory order compelling the manufacturer to submit to mediation and
to continue the dealership until completion of the mediation. The court held
that the order should be granted, since the clear intent of the agreement was
that disputes should be submitted to the dispute resolution process. 158 This is a
clear example of the necessity to disclose what, if any, ADR methods will be
pursued.
155
Ibid. at 7-12.
156
O.REG 581/00.
157
(1998), 163 D.L.R. (4th) 740 (Ont. Ct. Gen. Div).
158
Frank Zaid, supra note 65 at 339.