What is the test for making out an arguable case that the subject matter of the Claim arises out of the DRZ Agreement?
British Columbia, Canada
The following excerpt is from Canadian Pacific Railway Company v Canadian National Railway Company, 2021 BCSC 2289 (CanLII):
The applicable legal test is whether CN has made out “an arguable case” that the subject matter of the Claim arises out of the DRZ Agreement; it is up to the arbitrator to determine the scope of the arbitration clause: Clayworth v. Octaform Systems Inc., 2020 BCCA 117 at para. 6. This is a contractual interpretation issue, which is a question of mixed fact and law, requiring the court to consider the nature of the dispute, the wording of the arbitration clause, and the terms of the contract read in its factual context: Clayworth at para. 44.
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