Former high court chief justice Beverley McLachlin to join arbitration firm.
Former chief justice takes on new role
In a development that could well promote badly needed gender diversity among commercial arbitrators, Beverley McLachlin, the former chief justice of Canada, has joined Arbitration Place in Toronto as an arbitrator and mediator.
“Having (McLachlin) join Arbitration Place will be a real shot in the arm for women in the field,” said Louise Barrington, a member arbitrator at Arbitration Place, “It’s role modelling clear and simple.”
But that wasn’t the main reason behind McLachlin’s move.
“I love judging but my ability to judge in traditional courts in Canada is over,” McLachlin said. “I love the process of listening to counsel, sorting out the facts to the best of my ability and applying the law, and because I can no longer do any of that as a judge, I decided to give arbitration and mediation a try.”
With 35 years as a judge spent overseeing a wide range of common- and civillaw disputes, the bilingual McLachlin, who served as chief justice from 2000 to 2017 (a record tenure), seems tailor-made for her new role.
McLachlin’s experience as an arbitrator will most closely resemble the four years she spent as a trial judge on British Columbia’s Supreme Court, from 1981-85, largely because arbitrators — like trial judges and unlike appellate judges — must hear and weigh evidence.
“Arbitrating will, in a sense, bring me back to the trial process, in which I have always been really interested, and to commercial law, which I have always enjoyed,” she said.
There are, of course, a number of differences between the more flexible, informal arbitral process and the court process, governed, as it is, by legislated rules.
“Arbitration is a little less one-size-fits-all because parties get to choose their arbitrators and mould their own processes,” McLachlin said. “But in the end you’re still a decision-maker who has to listen.”
McLachlin chose Arbitration Place, a fully integrated state-of-the-art arbitration centre in downtown Toronto that has achieved a worldwide reputation, because “I have friends who have been very happy there.”
Indeed, the roster includes former Supreme Court of Canada justices Ian Binnie, Thomas Cromwell and Marshall Rothstein — all of whom sat on the SCC during McLachlin’s tenure, and former appellate and trial jurists from other courts, and prominent lawyers.
“I’ve always loved the concept of Arbitration Place, with its focus on dispute resolution outside the courts,” Louise Barrington said. “Being an arbitrator, especially an arbitrator on a one-person panel, can be a very lonely job, so it’s great to have colleagues with whom you can discuss and interact.”
As it turns out, McLachlin and Barrington are somewhat of an anomaly in the male-dominated world of commercial arbitration.
“The under-representation of women on arbitral tribunals has been a concern globally,” said Kim Stewart, founder and CEO of Arbitration Place. “While Canada has made strides to increase diversity in other areas, progress has been slower in commercial arbitration.”
Stewart knows whereof she speaks: just three of the 31 arbitrators on her roster (including McLachlin) are women. But it isn’t for lack of trying.
“Arbitration Place has presented and hosted a number of diversity programs over the past six years and has supported individual initiatives,” Stewart said.
Most recently, Arbitration Place partnered with Arbitral Women, an international non-governmental organization co-founded by Barrington that brings together women practitioners active in international dispute resolution.
For her part, McLachlin — who became a lawyer when there were few women in the profession — is hopeful that her move will encourage more women to consider a career in arbitration.
“I’ve never accepted the fact that females are confined to certain roles,” she said. “Now that I’ve become an arbitrator, it may well — in some quiet way — encourage other women to do it.”
It’s not that McLachlin has been bereft of things to do since she left the Supreme Court. Quite apart from sitting on Singapore’s International Commercial Court and the Hong Kong Court of Final Appeal, she’s released a well-received mystery novel, Full Disclosure, published earlier this year.
IT’S ROLE MODELLING CLEAR AND SIMPLE.