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Case 350: MAL: 8(1)
Canada: British Columbia Court of Appeal (Macfarlane J.A.)
October 18, 1995
Traff v. Evancic et al.
Original in English
Published in English: [1995] B.C.J. No. 2296, (1995) B.C.L.R. (3d) 85 (Lower Court Decision reported as CLOUT Case 180; reference (1995) B.C.J. No. 1437)
In this case, the defendants applied for leave to appeal to set aside service ex juris upon them and also applied to stay the action as it was subject to arbitration. At issue were claims of fraud and for an accounting. The lower court referred the accounting claim arbitration but maintained the fraud claim. Jurisdiction over the foreign defendants was justified on the basis that they were necessary parties to the action against domestic defendants. The defendants claimed that they were not proper parties, no claim of fraud having been made against them.
The Court of Appeal dismissed the application, did not grant leave to appeal, and did not stay the fraud claim. The pleadings alleged that the defendants were parties to the fraud in that they caused it. They were necessary and proper parties to the action. The court confirmed the judge's ruling on jurisdiction. As for the arbitration clause, the court held, referring to section 8(1) of the International Commercial Arbitration Act, that the fraud claim was not subject to arbitration as it was not contractual in nature and the claim in this action was not a claim under contract. It was held that the accounting claim was properly stayed, unlike the fraud claim which could not be stayed.
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CASE LAW ON UNCITRAL TEXTS (CLOUT)
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