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Case 355: MAL: 8(1)
Canada: British Columbia Supreme Court (Martinson J.)
January 15, 1999
Restore International Corp. v. K.I.P. Kuester International Products Corp.
Original in English
Published in English: [1999] B.C.J. No. 257
In response to an application for summary judgment by the defendant K.I.P., the plaintiff, Restore, sought a stay of the action and a referral to arbitration. Restore had granted K.I.P. exclusive distribution of Restore's automobile products in Canada but a dispute had arisen as to the scope of the exclusivity. When negotiations between the parties failed, Restore sought damages in court and K.I.P. counterclaimed. Restore filed a defence to this counterclaim and its own action was later dismissed. Restore then sought to force K.I.P. to arbitrate its counterclaim. Restore argued that its filing of a defense in court had been done without prejudice to its right to seek arbitration.
The Supreme Court of British Columbia dismissed the application for a stay. The court invoked the International Commercial Arbitration Act under which Restore could not obtain a stay having filed the defence to the counterclaim.
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