22/03/2019 – Jurisdiction Ontario
Part 66 published on 01/06/2019
Mandatory mediation and arbitration did not apply to dispute under Reciprocal Agreement
This is a dispute between parties relating to a Reciprocal Agreement dealing with shared facilities. One of the parties to the agreement claimed that the dispute could not be determined by Court process, but rather was subject to mandatory mediation and arbitration under the terms of the Agreement and Section 132 of the Condominium Act. The Court disagreed and held that the Court process could continue. The Court said:
While the amount of claimed arrears that TSCC 1628 seeks to resist flows from the Reciprocal Agreement, I find the essence of this claim to be about Soho’s allegedly oppressive conduct. More specifically, the pith and substance of this dispute relates to allegations that Soho imposed a disproportionate burden on TSCC 1628 through the Reciprocal Agreement, as well as the consequences that flowed from this allegedly oppressive conduct.
…
While an arbitration could deal with some aspects of this dispute, and while other aspects remain contingent on how narrow or broad an arbitrator sees the jurisdiction of the arbitration clause in the Reciprocal Agreement and s. 132 of the Condominium Act, it is apparent that what I have concluded are the core or essential aspects of this application would need to proceed to this court to be resolved, as they arise under s. 135 of the Condominium Act.