Royal Vancouver v. Elavon Date:, 2011 BCPC 225

Citation: Royal Vancouver v. Elavon Date: 20110308 2011 BCPC 0225 File No: 10-32688 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Civil Division) BETWEEN: ROYAL VANCOUVER 1 MGMT BC LTD. CLAIMANT AND: ELAVON MERCHANT SERVICES DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE YEE Appearing for the Claimant: S. Miller, Company Representative Counsel for the Defendant: S. McEachern Place of Hearing: Vancouver , B.C.

Date of Hearing: March 8, 2011 Date of Judgment: March 8, 2011 [ 1 ] THE COURT: Royal Vancouver 1 MGMT BC Ltd. claims against Elavon Merchant Services for the charge backs that the claimant had incurred in the amount of $2,682.52. Elavon in its reply states essentially that the claim by the claimant is covered by their agreement which contain disputes of this sort falls within Commercial Arbitration Act provision that that agreement contained.

The application before this court is made by the defendant to stay the claimant's claim and refer it to arbitration pursuant to s. 15(1) of the Commercial Arbitration Act and in accordance with s. 19(

f) of the application. [ 2 ] Based on the information and material before me, I am satisfied that the claimant and the defendant are parties to the arbitration agreement. I am also satisfied that the application have been brought after the defendant had entered a reply which addresses solely the jurisdictional issue and not the merit of the claim.

And three, that the claim advanced by the claimant deals with respect to matters agreed between them to be submitted for arbitration. [ 3 ] As I understand it, the claimant's position in opposing to this application relates to the validity of the agreement that he had with the defendant. He is alleging that the agreement he had with that defendant did not contain the merchant's application which would contain the entire agreement which is part of supposedly the package that he would receive after he had signed this agreement. He only acknowledges four pages of the agreement which appears to contain 11 pages.

And of course one of the important page contained the merchant's application, which according to Mr. Miller is something that he cannot recall if that was part of the package that he had received after execution of that agreement. He takes the position unless he has initialled those pages they should not be part of the agreement. I note, however, that on page 3 which does not contain his initial, he accepts that to be part of the agreement, or part of the page that he signed. [ 4 ] I am not sure where he stands, whether he is suggesting that the agreement as a result is void, or inoperative.

As far as I am concerned, the burden is on the claimant to establish that a claim clearly falls outside the scope of the arbitration agreement, or that the arbitration agreement is void, inoperative, or incapable of being performed. Certainly there is no evidence or suggestion that the arbitration agreement is incapable of being performed. I am not sure if Mr. Miller is taking the position the arbitration agreement is void because the page that governs that relationship is not in the agreement, or that the arbitration agreement is inoperative.

[ 5 ] I choose to follow Madam Justice Deschamps for the majority of the Supreme Court of Canada in Dell Computer Corp. v. Union des consommateurs where it is stated: I would lay down a general rule that in any case involving an arbitration clause, a challenge to the arbitrator’s jurisdiction must be resolved first by the arbitrator.

A court should depart from the rule of systematic referral to arbitration only if the challenge to the arbitrator’s jurisdiction is based solely on a question of law. [ 6 ] The court went on to say that: If the challenge requires the production and review of factual evidence, the court should normally refer the case to arbitration, as arbitrators have, for this purpose, the same resources and expertise as courts.

Where questions of mixed law and fact are concerned, the court hearing the referral application must refer the case to arbitration unless the questions of fact require only superficial consideration of the documentary evidence in the record. [ 7 ] Which is not the case here as I can see, so pursuant to s. 2 of the Small Claims Act and Rule 16(6)(

o) of the Small Claims Rules, I stay the claim. (RULING ON APPLICATION CONCLUDED)