PRACTICE |
Stay of Proceedings |
Campney & Murphy v. Bernard & Partners
T-1743-02
2002 FCT 1136, Hargrave P.
4/11/02
13 pp.
Motion for stay of proceedings in favour of existing arbitration proceedings pursuant to Commercial Arbitration Act of British Columbia, s. 15--In application underlying present motion, partners of Campney & Murphy law firm claim copyright in various precedent material, as against respondents Bernard & Partners, six individuals including Mr. Hilton, each a former partner of Campney & Murphy-- Arbitration provision in Campney & Murphy partnership agreement couched in very broad terms, extending to "all disputes arising out of or in connection with" agreement-- Three prerequisites to application of Act, s. 15: applicant must show that party to arbitration agreement has commenced legal proceedings against another party to agreement; legal proceedings must be in respect of matter agreed to be submitted to arbitration; application must be timely: Prince George (City) v. McElhanney Engineering Services Ltd. (1995), 9 B.C.L.R. (3d) 368 (C.A.)--Also, party seeking stay need only show arguable case: Prince George (supra)-- "Arising out of" deserving generous interpretation--Motion allowed--Argument of Campney & Murphy, based on partners of respondent Bernard & Partners being merely corporate entities, entities beyond reach of arbitrator, last-minute tack, but arguable point, albeit only arguable point-- However, concept of company acting for and on behalf of those who called it into existence, patently situation here, for law firms cannot function as effective partnerships if corporate persona, as opposed to individuals themselves, in control--Thus, nothing to argument that arbitrator would have no jurisdiction over alleged perpetrators of copyright infringement--Doubt as to arbitrability must be resolved in favour of coverage under arbitration agreement--First, present proceeding against partnership of individual lawyers said to have taken, used copyright material belonging to Campney & Murphy, matter clearly arbitrable--Partnership of individual lawyers, individuals themselves, subject to arbitration process--Second, in the alternative, those corporate personas of each lawyer with Bernard & Partners, including Mr. Hilton were at least arguably, indeed in all likelihood, acting as agents for the individual lawyers--This being case, no issue as to Bernard & Partners, Mr. Hilton being proper parties to arbitration agreement, so that issue of obtaining, use of precedent material, originated from Campney & Murphy's records, may be arbitrated--In addition, in interest of justice that proceeding be stayed so that effect may be given to arbitration provision agreed to by all concerned--Commercial Arbitration Act, R.S.B.C. 1996, c. 55, s. 15.