THE ADVOCATE 663
VOL. 79 PART 5 SEPTEMBER 2021
THE IMPACT OF VAVILOV
ON APPEALS OF
COMMERCIAL ARBITRATION AWARDS
By Jennifer K. Choi and the Honourable Thomas A. Cromwell
December 2020 marked the one-year anniversary of one of the
most closely watched cases in recent Supreme Court of
Canada jurisprudence: Canada (Citizenship and Immigration)
v. Vavilov.1 Vavilov represents a reset on how courts are to
approach the standard of review analysis, completely breaking from the
framework that has been in place since Dunsmuir v. New Brunswick.2 In a
7:2 decision, a majority of the court essentially wiped the slate clean on the
issue of standard of review, in a manner described by Professor Paul Daly
as the “big bang” of Canadian administrative law.3
Unsurprisingly for such a sweeping change in the law, the court’s decision
had some unforeseen consequences. In particular, the question “What
is the standard of review for appeals of commercial arbitration awards?” has
been reopened, after being recently decided by the court in Sattva Capital
Corp. v. Creston Moly Corp.4 In light of the fundamental differences in the
policies underpinning administrative law and private arbitration and the
fact that Vavilov did not directly address arbitration (or mention Sattva),
courts across Canada have not come to a consensus on whether the new
Vavilov framework has displaced the old framework set out in Sattva.
On February 5, 2021, a six-justice majority of the Supreme Court of
Canada in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage
District5 declined to address whether the Vavilov framework applies to
appeals to the courts in commercial arbitration. The majority held that it
was appropriate to “leave for another day consideration of the effect, if any,
of Vavilov on the standard of review principles articulated in Sattva and Teal
Cedar”, since the court did not have the benefit of submissions on the issue
(Wastech was heard before the reasons in Vavilov were released).6 In a critical
dissent, the three-justice minority commented that the court ought to
provide clear guidance on this point.
The majority’s decision in Wastech echoes decisions from the B.C. Court
of Appeal and the Ontario Court of Appeal, which both passed on opportu-