What happens when there are two distinct, mandatory, and
contradictory provisions in an agreement for dispute
resolution?
The Ontario Superior Court of Justice recently provided clarity
in Bakaris v. Southern Sky, 2020 ONSC 7306, as to how
parties ought to proceed when their agreements require that
disputes both be arbitrated and be brought before the courts.
Facts
In 2018, Nick Bakaris, an entrepreneur working and residing in
Zimbabwe, entered into a memorandum of agreement (the
"MOA") with Southern Sun Pharma Inc.
("Southern Sun"), a British Columbia
holding company whose subsidiaries produce, market and sell
cannabis in the African market.1 Under the terms of
the MOA, Mr. Bakaris agreed to obtain a licence on behalf of a
Zimbabwean corporation to cultivate and sell medical cannabis in
Zimbabwe. In exchange for obtaining this licence, Mr. Bakaris would
receive a 10% shareholding of Southern Sun.2
