Can an application to stay an action be made against an arbitration clause in the operative agreement between the parties?
British Columbia, Canada
The following excerpt is from Mazzei Electric Ltd. v Western Canadian Construction Company Ltd., 2021 BCSC 1873 (CanLII):
In Clayworth v. Octaform Systems Inc., 2020 BCCA 117, the court of appeal addressed an application to stay an action in circumstances where an arbitration clause was included in the operative agreement between the parties. The court found that the test to be applied was whether there was an arguable case that the claims raised in the action fall within matters to be submitted for arbitration. Where the claims raised were arguably within the matters the parties agreed to submit to arbitration, a stay should be granted of the action: “As long as there is an arguable case that the arbitration clause applies, it is the arbitrator who should determine whether the dispute is one that has been agreed to be referred to arbitration for resolution.” (para 53)
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