What is the test for determining whether a counterclaim is in respect of a matter agreed to be submitted to arbitration?
British Columbia, Canada
The following excerpt is from Jaeckel v International Exhibition Services Inc., 2021 BCSC 1173 (CanLII):
The issue in dispute is whether there is an arguable case that the counterclaim is in respect of a matter agreed to be submitted to arbitration. In making this determination, the court must examine: 1) the nature of the disagreement; 2) the words of the arbitration clause; and 3) the terms of the contract as a whole in their factual context: St. Pierre v. Chriscan Enterprises Ltd., 2011 BCCA 97 at para. 21.
When an applicant makes out an arguable case that the parties have agreed that the dispute is to be resolved through arbitration, the court should stay the proceedings: Clayworth v. Octaform Systems Inc., 2020 BCCA 177 at para. 21. The court wrote at para. 53:
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