Case Number

CA 108/60

Date Decided

11-7-1960

Decision Type

Appellate

Document Type

Full Opinion

Abstract

The appellant and the respondents carried on business in partnership, and differences having arisen between them a submission to arbitration was signed in which the arbitrators were invited "to investigate, consider and decide the amount which Mr. Edgar Sacks (the appellant) is to pay to the partnership", this being an amount "which Mr. Edgar Sacks has to refund to the partnership on account of damages and losses caused by him." The District Court found that the subject matter of the arbitration was in fact joint property which the appellant was alleged to have stolen, and that the parties, in submitting the dispute to arbitration, intended and agreed to conceal a felony and refrain from disclosing the matter to the Police. Nevertheless an application by the appellant to set aside the submission on the ground of the above intention and agreement of the parties was refused, and an appeal was lodged.

Held, dismissing the appeal:

Per Sussman J.

1) If, incidental to the signing of a submission to arbitration relating to a criminal matter, the parties should also agree to suppress the criminal aspect, even by implication, only, the submission to arbitration will become an illegal transaction which the court will not enforce.

2) The civil and criminal aspects of the case are two distinct matters, and while the criminal charge may not serve as the subject matter of an arbitration, the parties may submit the civil dispute to the decision of an arbitrator.

3) The evidence in the present case merely shows that the appellant was interested "that the matter should not be publicised", and that does not necessarily imply an agreement to suppress a prosecution and cover up a criminal matter.

Per Silberg J.

Even if the factual contentions of counsel for the appellant had been proved, his application could not succeed, for the parties were not at least in pari delicto, and in fact the "turpitude" was on the part of the appellant himself.

Per Cohn J.

There was abundant evidence to support the conclusion of the District Court, but as the appellant did not come to court with clean hands and in fact initiated the whole matter, his application must fail.

Keywords

Arbitration, Property -- Partnerships

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