Maher v. Chertkow

Maher v. Chertkow

The court found on the evidence that Maher was a partner and therefore bound by the MOAOP including its arbitration clause; under s.15 of the Commercial Arbitration Act the court must determine whether the arbitration agreement is void/inoperative/incapable of being performed and, having done so, ordered a stay of proceedings pending arbitration except for claims expressly excluded from arbitration (the restrictive covenant under clause 10.9(a)).

Citation
2003 BCSC 48
Parties
Plaintiff/respondent: Philip Maher; Defendant/applicant: Morelli Chertkow
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
10 January 2003
Procedural Posture
Civil Partnership Dispute / Commercial Arbitration / Application for Stay Pending Arbitration Under S.15 Commercial Arbitration Act (chambers)
Outcome
Stay granted pending arbitration under s.15 Commercial Arbitration Act; claims relating to the restrictive covenant are excluded from the stay.
Legal Topics
Arbitration Clause Enforceability, Stay of Proceedings, Validity of Contract, Restrictive Covenant Interpretation, Application of Commercial Arbitration Act S.15
Source Language
English
Commercial Arbitration Partnership Law Contract Law Civil Procedure Arbitration Clause Enforceability Stay of Proceedings Validity of Contract Restrictive Covenant Interpretation +1 more

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Parties

Philip Maher

Plaintiff/respondent

Morelli Chertkow

Defendant/applicant

Procedural Posture

Civil Partnership Dispute / Commercial Arbitration / Application for Stay Pending Arbitration Under S.15 Commercial Arbitration Act (chambers)

Legal Issues

  1. 1 Whether the arbitration clause in the Memorandum of Agreement of Partnership (MOAOP) binds the plaintiff
  2. 2 Whether the court or the arbitrator must decide the validity of the arbitration agreement
  3. 3 Whether a stay of proceedings should be granted under s.15 of the Commercial Arbitration Act

Ratio Decidendi

The court found on the evidence that Maher was a partner and therefore bound by the MOAOP including its arbitration clause; under s.15 of the Commercial Arbitration Act the court must determine whether the arbitration agreement is void/inoperative/incapable of being performed and, having done so, ordered a stay of proceedings pending arbitration except for claims expressly excluded from arbitration (the restrictive covenant under clause 10.9(a)).

Court Disposition

Stay granted pending arbitration under s.15 Commercial Arbitration Act; claims relating to the restrictive covenant are excluded from the stay.

Orders

  • Stay of proceedings pending arbitration under the partnership agreement pursuant to s.15(1) of the Commercial Arbitration Act, R.S.B.C. 1996, c.55
  • The stay does not extend to portions of the plaintiff's action dealing with the restrictive covenant (clause 10.9(a) of the MOAOP) which remain for court determination