Borowski v. Fiedler (Heinrich) Perforiertechnik GmbH et al., (1994) 158 A.R. 213 (QB)

• Judge: Murray, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 12, 1994
• Citations: (1994), 158 A.R. 213 (QB)

Borowski v. Fiedler Perforiertechnik (1994), 158 A.R. 213 (QB)

MLB headnote and full text

Reinhold Borowski (plaintiff/respondent) v. Heinrich Fiedler Perforiertechnik GmbH and Fiedler Corporation (defendants/applicants)

(No. 9403-04783)

Indexed As: Borowski v. Fiedler (Heinrich) Perforiertechnik GmbH et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Murray, J.

August 12, 1994.

Summary:

An employee sued for damages in lieu of notice and loss of past benefits and wages. By an ex parte order, the employer was restrained and enjoined from removing certain assets from the province and cus­tomers of the employer were ordered to pay pur­chase monies into court or not to dispose of purchase monies. The employer claimed that the Alberta courts had no jurisdiction in the matter and that it should be remitted to the State of Georgia for arbitration in ac­cordance with an arbitration clause in the agreement between the parties.

The Alberta Court of Queen's Bench held that the court had jurisdiction in the issues of past benefits and wages. The court held that the claim for damages in lieu of notice was subject to arbitration. The court set aside the ex parte order.

Arbitration - Topic 102

Right to arbitration - What matters arbitrable - An employee sued for dam­ages in lieu of notice and past benefits and wages - The employer admitted that it owed the employee for past wages and benefits - The agreement between the parties had an arbitration clause - The Alberta Court of Queen's Bench held that the claim for damages in lieu of notice fell within the scope of the arbitration clause and was subject to arbitration - The court held that there was no dispute about the past bene­fits and wages and therefore the em­ployee's action on that issue did not have to be stayed because s. 7(2)(e) of the Arbitration Act applied - See paragraphs 35 to 46.

Arbitration - Topic 105

Right to arbitration - International Com­mercial Arbitration Act - An employee sued for damages in lieu of notice and past benefits and wages - The employer claimed that the Arbitration Act did not apply because the International Commer­cial Arbitration Act (I.C.A.A.) applied - Section 2(2) of the I.C.A.A. stated that the relevant part of the Convention applied to "differences arising out of commercial legal relationships" - Section 4(2) stated that the international law applied to "inter­national commercial arbitration agreements or awards" - The Alberta Court of Queen's Bench held that the I.C.A.A. did not apply because the relationship in issue was a master and servant relationship and was not a commercial legal relationship or agreement - See paragraphs 23 to 32.

Arbitration - Topic 2504

Stay of proceedings - Arbitration clause - Enforcement of - [See Arbitration - Topic 102 ].

Arbitration - Topic 2506

Stay of proceedings - Scott v. Avery clause - Arbitration as condition precedent to legal action - An agreement contained an arbitration clause that read, "Any con­troversy or claim arising out of or relating to this Agreement as the breach hereof shall be submitted by the parties to binding arbitration ... and judgment upon any award rendered in such arbitration may be entered in any court having jurisdiction thereof." - The Alberta Court of Queen's Bench held that this was not a Scott v. Avery clause because the clause did not require that there must be a determination by arbitrators before a cause of action accrues to either party - See paragraphs 15 to 19.

Injunctions - Topic 1612

Interlocutory or interim injunctions - Mareva injunctions - Preservation of property pending judgment - An employee sued for damages in lieu of notice and loss of past benefits and wages - By an ex parte order, the employer was restrained and enjoined from removing certain assets from the province and customers of the employer were ordered to pay purchase monies into court or not to dispose of purchase monies - The Alberta Court of Queen's Bench held that the injunction should be set aside - The court held that there was no real risk that the assets would be removed from the jurisdiction - The court held that the injunction effectively granted execution before judgment - See paragraphs 47 to 50.

Words and Phrases

Commercial - The Alberta Court of Queen's Bench discussed the meaning of the word "commercial" in ss. 2(2) and 4(2) of the International Commercial Arbitra­tion Act, S.A. 1986, c. I-6.6 - See para­graphs 23 to 32.

Cases Noticed:

Planned Sales Ltd. v. Einson-Freeman International (Americas) Ltd., [1955] O.W.N. 443 (H.C.), consd. [para. 15].

Scott v. Avery (1856), 5 H.L.C. 811; 10 E.R. 1121 (H.L.), consd. [para. 16].

Czarnikow v. Roth, Schmidt & Co., [1922] 2 K.B. 478; 92 L.J.K.B. 81 (C.A.), refd to. [para. 16].

Horton v. Sayer (1859), 29 L.J. Ex. 28; 157 E.R. 993, refd to. [para. 17].

Karlsen Shipping Co. v. Sefel J. & Asso­ciates Ltd. (1977), 4 A.R. 242; 2 Alta. L.R.(2d) 170 (T.D.), refd to. [para. 18].

Scotia Realty Ltd. v. Olympia & York SP Corp. (1992), 9 C.P.C.(3d) 339 (Ont. Gen. Div.), refd to. [para. 18].

Northwestern Utilities Ltd. v. Peyto Oils Ltd. (1983), 49 A.R. 1 (Q.B.), refd to. [para. 18].

E.K. Motors Ltd. v. Volkswagon Canada Ltd., [1973] 1 W.W.R. 466 (Sask. C.A.), refd to. [para. 20].

Pinebrook Golf & Country Club v. Assessment Appeal Board (Alta.) and Rockyview No. 44 (1984), 65 A.R. 236 (C.A.), dist. [para. 25].

R. v. Wah Kee, [1920] 3 W.W.R. 656 (Alta. T.D.), dist. [para. 25].

New Brunswick (Minister of Municipal Affairs) v. Colter (Ashley) (1961) Ltd. (1970), 2 N.B.R.(2d) 325; 10 D.L.R.(3d) 502 (C.A.), refd to. [para. 27].

Kaverit Steel and Crane Ltd. et al. v. Kone Corp. et al. (1992), 120 A.R. 346; 8 W.A.C. 346; 85 Alta. L.R.(2d) 287 (C.A.), folld. [para. 32].

Gulf Canada Resources Ltd. v. Arochem International Ltd. et al. (1992), 11 B.C.A.C. 145; 22 W.A.C. 145; 43 C.P.R.(3d) 390 (C.A.), refd to. [para. 32].

Shell Canada Ltd. v. Vector Energy Inc. (1989), 101 A.R. 226 (Q.B.), consd. [para. 41].

Heyman v. Darwins Ltd., [1942] A.C. 356; [1942] 1 All E.R. 337 (H.L.), refd to. [para. 43].

Dome Petroleum Ltd. v. Burrard Yarrows Corp. (1983), 43 B.C.L.R. 370 (S.C.), refd to. [para. 45].

Feigelman, Feigelman, Goldberg, R.L.L. Holdings Ltd. and Pre-Vue Co. (Canada) Ltd. v. Aetna Financial Services Ltd., Lax and Burke, [1985] 1 S.C.R. 2; 56 N.R. 241; 32 Man.R.(2d) 241; 15 D.L.R.(4th) 161, consd. [para. 48].

Aetna Financial Services Ltd. v. Feigelman et al. - see Feigelman, Feigelman, Goldberg, R.L.L. Holdings Ltd. and Pre-Vue Co. (Canada) Ltd. v. Aetna Finan­cial Services Ltd., Lax and Burke.

Barclay-Johnson v. Yuill, [1980] 3 All E.R. 190; [1980] 1 W.L.R. 1259, refd to. [para. 50].

Statutes Noticed:

Arbitration Act, S.A. 1991, c. A-43.1, sect. 1(1)(a) [para. 19]; sect. 2(1)(a), sect. 2(1)(b) [para. 21]; sect. 3 [para. 22]; sect. 5(2) [para. 19]; sect. 6, sect. 7, sect. 7(2), sect. 7(2)(c), sect. 7(2)(e) [para. 40].

International Commercial Arbitration Act, S.A. 1986, c. I-6.6, sect. 2(2), sect. 4(2) [para. 23].

International Commercial Arbitration Act, S.B.C. 1986, c. 14, generally [para. 31].

Rules of Court (Alta.), rule 27 [para. 12].

Authors and Works Noticed:

Gage's Canadian Dictionary, generally [para. 26].

Random House College Dictionary (Rev. Ed.), generally [para. 26].

Shorter Oxford English Dictionary (3rd Ed. 1973), generally [para. 26].

Webster's Third New International Dic­tionary, generally [para. 26].

Counsel:

J.K. Friesen, for the plaintiff;

S.M. Anderson, for the defendants.

This matter was heard on August 12, 1994, by Murray, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on August 12, 1994.