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?
[Update 2013/02/08: Edmonton has appealed this decision, likely to be heard in the fall of 2013.]
[Update 2013/10/31: The appeal is being heard today, October 31, 2013.]
[Update 2013/11/08: The Court of Appeal today allowed Edmonton’s appeal, as expected, holding that the Statement of Claim does not “serve as a commencing document for arbitration nor is it sufficient notice of an intention to arbitrate.” The court also said: To characterize what amounts to the opposite of notice to commence arbitration as being the same as notice to commence arbitration would take s. 23 outside of the scope of predictable meaning.”]