Onex Corp v Ball Corp 1994 CanLII 7537 - Arbitration Place

[23] In Ashville Investments itself, supra, at p. 495, Lord Justice May recognized that similar
language could have different shades of meaning in different contexts, when he noted:
Similarly, it is a principle of law that the scope of an arbitrator’s jurisdiction and powers in
a given case depend fundamentally upon the terms of the arbitration agreement, that is
to say upon its proper construction in all the circumstances. However, I do not think that
there is any principle of law to the effect that the meaning of certain specific words in
one arbitration clause in one contract is immutable and that those same specific words
in another arbitration clause in other circumstances in another contract must be
construed in the same way. This is not to say that the earlier decision on a given form of
words will not be persuasive, to a degree dependent on the extent of the similarity
between the contracts and surrounding circumstances in the two cases. In the interests
of certainty and clarity a court may well think it right to construe words in an arbitration
agreement, or indeed in a particular type of contract, in the same way as those same
words have earlier been construed in another case involving an arbitration clause by
another court. But in my opinion the subsequent court is not bound by the doctrine of
stare decisis to do so. (emphasis added)
1994 CanLII 7537 (ON SC)
[24] At the very least, where the language of an arbitration clause is capable of bearing two
interpretations, and on one of those interpretations fairly provides for arbitration, the courts
should lean towards honouring that option, given the recent developments in the law in this
regard to which I have earlier referred: see also, Gulf Canada Resources Ltd./Ressources
Gulf Canada Ltée v. Arochem International Ltd. (1992), 66 B.C.L.R. (2d) 113, 43 C.P.R. (3d)
390 (C.A.),at pp. 120-121.
[25] I am satisfied that, in the context of the Agreement, the issue regarding rectification is a
dispute arising “under” the contract. Even if it is not, however, it is a dispute arising “in relation
to the construction” of the contract.
[26] The construction of a document involves a search for the true intentions of the parties
whose document it is. The essence of a claim for rectification is that the parties have failed to
express in an accurate way, in the written document, the true agreement which has already
been reached: M.P. Furmston, ed., Cheshire, Fifoot and Furmston’s Law of Contract, 11th ed.
(London: Butterworths, 1986) at p. 232. For rectification to be granted, it is necessary to