Sheer et al. v. Lee et al., (2000) 263 A.R. 305 (QB)

• Judge: Rooke, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 13, 2000
• Citations: (2000), 263 A.R. 305 (QB)

Sheer v. Lee (2000), 263 A.R. 305 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. AP.020

Bryan Sheer and 714734 Alberta Ltd. (plaintiffs) v. Sanders Lee, Kevin Pshebniski, 733800 Alberta Ltd., the C.C. Trust, Hopewell Development Corporation, Hopewell Logistics Inc., 1165682 Ontario Inc., and Advance Kamak Distribution Centres Ltd. (defendants)

(Action No. 9701-15795)

Indexed As: Sheer et al. v. Lee et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Rooke, J.

March 13, 2000.

Summary:

Sheer applied for the appointment of an arbitrator, provided for under a written letter agreement between Sheer and the defendant Lee for the intended purpose to complete other terms of the agreement, as it existed.

The Alberta Court of Queen's Bench dismissed the application.

Arbitration - Topic 3543

The arbitrator - Appointment - By court - Under an agreement - Sheer applied for the appointment of an arbitrator, provided for under a written letter agreement between Sheer and the defendant for the intended purpose to complete other terms of the agreement, as it existed - The Alberta Court of Queen's Bench dismissed the application, holding that the arbitration clause was to resolve disputes as to whether the formal agreements were con­sistent with the letter agreements, not an arbitration clause to create terms of an agreement - The terms did not specifically provide for the arbitrator to create the agreement within the prescribed area - It was neither the intent of the parties to use the arbitration clause to form an agreement nor was it worded sufficiently to allow that to be accomplished.

Cases Noticed:

Calvan Consolidated Oil & Gas Co. v. Manning (1958), 25 W.W.R.(N.S.) 641 (Alta. C.A.), affd. [1959] S.C.R. 253, refd to. [para. 25].

Cascade Builders Ltd. v. Alberta Govern­ment Telephones (1976), 1 A.R. 257 (T.D.), refd to. [para. 26].

Heyman v. Darwins Ltd., [1942] A.C. 356 (H.L.), refd to. [para. 26].

Newfoundland (Attorney General) v. Churchill Falls (Labrador) Corp. et al. (1983), 49 Nfld. & P.E.I.R. 181; 145 A.P.R. 181 (Nfld. T.D.), affd. (1985), 56 Nfld. & P.E.I.R. 91; 168 A.P.R 91 (Nfld. C.A.), affd. [1988] 1 S.C.R. 1085; 86 N.R. 1; 70 Nfld. & P.E.I.R. 126; 215 A.P.R. 126, refd to. [para. 29].

Ruhrkohle Handel Inter GmbH et al. v. Fednav Ltd. et al., [1992] 3 F.C. 98; 144 N.R. 70; 42 C.P.R.(3d) 414 (F.C.A.), refd to. [para. 45].

Queensland Sugar Corp. v. Ship Hanjin Jedda (1995), 6 B.C.L.R.(3d) 289 (S.C.), refd to. [para. 45].

Niagra South Board of Education v. HG Acres Ltd., [1972] O.R. 815 (H.C.), refd to. [para. 45].

Authors and Works Noticed:

Russell on Arbitration (16th Ed.), p. 10 [para. 25].

Russell on Arbitration (17th Ed.), p. 10 [para. 25].

Counsel:

Lenard M. Sali, Q.C., for the plaintiffs;

Jeffrey D. Vallis, for the defendants.

This application was heard before Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on March 13, 2000.