Dawson (City) v. TSL Contractors Ltd. et al., (2003) 180 B.C.A.C. 205 (YukCA)

• Judge: Southin, Braidwood and Hall, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: February 28, 2003
• Jurisdiction: British Columbia
• Citations: (2003), 180 B.C.A.C. 205 (YukCA);2003 YKCA 3

Dawson v. TSL Contractors Ltd. (2003), 180 B.C.A.C. 205 (YukCA);

    297 W.A.C. 205

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. MR.038

City of Dawson (plaintiff/appellant) v. TSL Contractors Ltd. and 831594 NWT Ltd. carrying on business as Ferguson Simek Clark, and the said Ferguson Simek Clark (defendants/respondents)

(CA030268; YU0488; 2003 YKCA 3)

Indexed As: Dawson (City) v. TSL Contractors Ltd. et al.

Yukon Territory Court of Appeal

Southin, Braidwood and Hall, JJ.A.

February 28, 2003.

Summary:

The defendants invoked s. 9 of the Arbitra­tion Act (Yukon) and applied for a stay of the plaintiff's action.

The Yukon Territory Supreme Court al­lowed the application. The plaintiff appealed.

The Yukon Territory Court of Appeal dismissed the appeal.

Arbitration - Topic 2507

Stay of proceedings - When available - [See Arbitration - Topic 2511 ].

Arbitration - Topic 2511

Stay of proceedings - Bar to stay - Taking of a step in the proceeding - Arbitration proceedings were commenced to resolve a dispute between a municipality and a contractor - An arbitrator was appointed - He held meetings and issued orders respec­ting the manner in which the arbitration would proceed and the filing of statements of claim and of defence and counterclaim - A hearing was scheduled but did not pro­ceed when an expert's report apparently attributed fault to a third person - The municipality sued the contractor and the third person - A motions judge stayed the action - The Yukon Territory Court of Appeal affirmed the decision where it would be unjust to now require the con­tractor to suddenly shift from the arbitra­tion process that had proceeded so far and to undertake new proceedings under the court process.

Cases Noticed:

Prince George (City) v. Sims (A.L.) & Sons Ltd. et al. (1995), 61 B.C.A.C. 254; 100 W.A.C. 254; 9 B.C.L.R.(3d) 368 (C.A.), refd to. [para. 11].

Intertec International Technische Asistenz GmbH et al. v. Neptune Bulk Terminals et al., [1985] 5 W.W.R. 231 (B.C.C.A.), refd to. [para. 11].

Taunton-Collins v. Cromie, [1964] 2 All E.R. 332 (C.A.), refd to. [para. 12].

Palmers Corrosion Control Ltd. v. Tyne Dock Engineering Ltd. et al., [1997] EWCA Civ. 2776 (C.A.), refd to. [para. 12].

Heyman v. Darwins, [1942] 1 All E.R. 337 (H.L.), refd to. [para. 14].

Gulf Canada Resources Ltd. v. Arochem International Ltd. et al. (1992), 11 B.C.A.C. 145; 22 W.A.C. 145; 66 B.C.L.R.(2d) 113 (C.A.), refd to. [para. 14].

Producers Pipelines Inc. v. Bridges Energy Inc. et al. (1993), 114 Sask.R. 257; 20 C.P.C.(3d) 365 (Q.B.), consd. [para. 16].

Counsel:

C.F. Willms and J.L. Francis, for the ap­pellant;

J.M. Moshonas and G.R. MacLennan, for the respondent, TSL Contractors Ltd.

This appeal was heard at Victoria, British Columbia, on February 28, 2003, by South­in, Braidwood and Hall, JJ.A, of the Yukon Territory Court of Appeal.

The decision of the Court of Appeal was delivered orally on February 28, 2003, and the following reasons were filed:

Hall, J.A. - see paragraphs 1 to 19;

Southin, J.A. - see paragraphs 20 and 22;

Braidwood, J.A. - see paragraph 21.