AG CLARK HOLDINGS LTD v HOOPP REALTY INC, 2013 ABQB 402
3.68: Court options to deal with significant deficiencies
Previously, the Applicant (Defendant) sought to have the Claim struck on the basis that arbitration had not been commenced within the two year limitation period pursuant to the Limitations Act, RSA 2000, c L-12. Alternatively, the Applicant sought a Stay pursuant to the Arbitration Act,RSA 2000, c A-43.
The Court found that arbitration was not mandatory and dismissed the Application. The Decision was appealed and overturned. The Court of Appeal found that there was a mandatory arbitration clause and the matter was referred back to the Court of Queen’s Bench to resolve the remaining issues.
The Respondent (Plaintiff), relying on section 7(2)(d) of the Arbitration Act, submitted that the proceedings should not be stayed as the Application for the same had been unduly delayed. The Respondent also argued that the issuance of a Statement of Claim could be considered an arbitration-commencing document: Lafarge Canada Inc v Edmonton (City), 2012 ABQB 634 [Lafarge].
The Court dismissed the Action. The Court held that Lafarge was distinguishable, and stated that:
Section 7(2) of the Arbitration Act does not assist HOOPP. Once it has been determined that there is a mandatory arbitration clause and that the applicable party failed to commence an arbitration within the limitation period, the Arbitration Act ceases to have any further application and the Court’s role comes to an end.View CanLII Details