24/06/2019 – Jurisdiction Ontario
68 published on 01/12/2019
The dispute between the parties should be determined by Arbitration
There was a previous dispute between the parties which the Court held should be decided by way of mandatory Alternative Dispute Resolution (ADR) provisions contained in the Shared Facilities Agreement between the parties. [See Condo Cases Across Canada, Part 66, June 2019.]
The condominium corporation started this separate Court claim against the developer. The Court action included claims for “a declaration that the Defendants are or threaten to be oppressive, unfairly prejudicial and/or unfairly disregard the interests of LSCC 41” as well as “damages for breaches of contract and ‘duty of care’, disclosure of documents, and the renegotiation” of two agreements between the parties (namely, the Shared Facilities Agreement – SFA – and the Shared Amenities Agreement – SAA).
The developer sought a stay of the Court action, arguing that mandatory ADR (arbitration) provisions in the two agreements applied. The Court agreed and stayed the Court action. The Court said:
In order to determine whether the subject matter of the dispute falls within the scope of the arbitration clause, a court must determine the “pith and substance” of the subject matter of the dispute.
…
In this case, I find that the pith and substance of the dispute relates either to the Defendants’ alleged non-compliance with the SFA and SAA, or to the fairness of the terms of the SFA.