"Staying" A While: Superior Court Of Justice Embraces Function Over Form In Evaluating What Constitutes An Agreement To Arbitrate.

Arbitration clauses are a common feature in commercial contracts, but parties to contracts and their lawyers should proceed with caution when drafting such clauses to carefully consider whether the clause is an agreement to arbitrate, or an agreement to obtain a professional opinion.

This issue was considered in a recent Ontario Superior Court decision, 2832402 Ontario Inc. v. 2853463 Ontario Inc.¹(283 Ontario). In that case, the Court held that a clause in a share purchase agreement requiring the parties to submit certain matters to an "independent accountant" constituted an agreement to arbitrate, thereby requiring a stay of a court proceeding commenced by one of the parties.