Alyssa Jagt

JH Whittaker & Sons Limited (Whittaker's) brought a motion to stay an action commenced by Husky Food Importers & Distributors Ltd. (Husky) and to refer Husky's claims to arbitration in New Zealand.

The motion was brought pursuant to the International Commercial Arbitration Act, 2017 and the UNCITRAL Model Law.

Husky argued that no valid arbitration agreement existed or that it was inoperative due to an inconsistency with a non-exclusive jurisdiction clause.

Applying the Haas framework, the court found it arguable that an arbitration agreement existed and that the dispute fell within its scope.

The court determined that the alleged inconsistency was not apparent and that the interpretation of the contract required a thorough review of the factual matrix, which is best left to the arbitrator.

The court also rejected the argument that a multiplicity of proceedings (arbitration against Whittaker's and litigation against another defendant) was a reason to refuse the stay, as the Model Law's stay provision is mandatory.

The motion to stay the action and refer it to arbitration was granted.

The plaintiff, FirstService Residential Ontario, brought a motion for an order directing the parties to comply with a proposed discovery plan.

The motion primarily concerned disputed provisions regarding the discovery of documents from the defendants, who were former employees and a competitor accused of breach of fiduciary duty, breach of contract, breach of confidence, conspiracy, and unlawful solicitation of clients and employees.

The court ruled on the relevance of various categories of documents, including employment agreements, communications related to client and employee solicitation, and financial statements, and imposed the discovery plan with specific inclusions and exclusions.