Clackson J in Lafarge Canada Inc. v Edmonton (City) 2012 ABQB 634 says a Statement of Claim “serves as a notice or as a commencing document, in compliance with s. 23 of the Arbitration Act.” He finds “there is no reason why a Statement of Claim cannot also constitute compliance with s. 23.” Further, “even though the Court proceedings necessitated by the Statement of Claim must be stayed by virtue of s. 7 of the Act, the Statement of Claim also commenced the arbitration, and it [the arbitration] remains outstanding.”
S. 23(1) An arbitration may be commenced in any way recognized by law, including the following:
(a) a party to an arbitration agreement serves on the other parties notice to appoint or to participate in the appointment of an arbitrator under the agreement;
(c) a party serves on the other parties a notice demanding arbitration under the arbitration agreement.
In Babcock and Wilcock Canada Ltd. v Agrium Inc. 2005 ABCA 82 the Court of Appeal held that s. 7 of the Act makes arbitration a condition precedent to litigation when the parties have agreed disputes shall be arbitrated. Does Lafarge mean that commencing litigation triggers the arbitration that is the condition precedent to litigation?