Part 29 published on 01/02/10
Arbitration under Alberta New Home Warranty Program not stayed as result of simultaneously court claim
The condominium corporation pursued warranty claims under the Alberta New Home Warranty Program (ANHWP). The condominium corporation also commenced an ordinary court claim (respecting the same building deficiencies) against parties involved in the original construction.
The Warranty Program applied for two Orders:
a) an Order staying the arbitration under the warranty claims process;
b) an Order adding ANHWP as a Defendant in the Court proceeding.
Both applications were dismissed.
The Court said that ANHWP could have no interest in the Court proceeding unless and until it makes payment to the Plaintiff or assumes liability – in which case it would have subrogated rights (as Plaintiff).
The Court also said:
In my view, there is an insufficient link between the Arbitration and the proceedings to justify a stay of the arbitration. The parties are not common. The legal and factual issues are different. Some of the evidence may overlap. However, the evidence required to make a finding on the Warranty Certificate is a small subset of the evidence which will be called at trial. The matters can be reasonably separated. No manifest unfairness arises.
Note: One of the Defendants in the Court proceeding also sought an Order staying the Court proceeding because of the ANHWP arbitration. For the same reasons, the Court declined to order any stay of the Court proceeding.