Canada / 12 August 1994 / Canada, Court of Queen's Bench of Alberta / Borowski v. Heinrich Fiedler Perforiertechnik GmbH
| Country | Canada |
| Court | Canada, Court of Queen's Bench of Alberta |
| Date | 12 August 1994 |
| Parties | Borowski v. Heinrich Fiedler Perforiertechnik GmbH |
| Applicable NYC Provisions | II | II(1) |
| Source |
158 AR 213, [1994] 10 WWR 623 (AB QB) | online: CanLII |
| Languages | English |
| Summary | Borowski was employed by Heinrich Fiedler Perforiertechnik GmbH (“Fiedler”). Borowski’s employment contract was terminated, and he sued for damages in lieu of notice and for loss of wages and benefits. Fiedler claimed that the Alberta courts did not have jurisdiction and the dispute should be referred to an arbitration tribunal, since the employment contract contained an arbitration clause which provided for arbitration in Georgia in accordance with the rules of the American Arbitration Association. The Alberta Court of Queen’s Bench stayed the claim for damages in lieu of notice and directed the same to be referred to arbitration, while allowing the claim for benefits, unpaid wages and expenses to proceed in the Court. The Court considered whether employment disputes could be submitted to arbitration in accordance with the provisions of the Alberta International Commercial Arbitration Act (“ICAA”), pursuant to which both the NYC and the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”) applied in Alberta. The Court noted that Section 2(2) of the ICAA provides that in Alberta the NYC applies “only in respect of differences arising out of commercial relationships, whether contractual or not.” It also noted that the Government of Canada, when acceding to the NYC, declared that it would apply the NYC “only to differences arising out of legal relationships, whether contractual or not, that were considered commercial under the laws of Canada, except in the case of the Province of Quebec, where the law did not provide for such limitation.” The Court considered that the parties’ agreement was a contract of employment giving rise to the status of master and servant, and not the type of relationship that one could consider to be a “commercial” legal relationship to which the NYC would apply, and therefore the claim for benefits, unpaid wages and expenses would have to proceed in the Court. It noted, however, that Fiedler had admitted that it owed Borowski for past wages and benefits and considered that because it was an implicit requirement in any arbitration agreement that there be some difference or dispute between the parties and there was no dispute on this matter that could be referred to arbitration. The Court considered that the wording of Article II(1) NYC, which expressly links the application of the arbitration agreement to the existence of a dispute, supported this finding. |
Attachment (1)
 Original Language Adobe Acrobat PDF |
