666 THE ADVOCATE
VOL. 79 PART 5 SEPTEMBER 2021
tional questions; (3) general questions of law central to the legal system as
a whole; and (4) questions regarding the jurisdictional boundaries between
two or more administrative bodies.21
The final circumstance where the majority recognized that it was appropriate
to derogate from the presumption of reasonableness is where the relevant
legislation contains a statutory appeal mechanism from the
administrative decision to a court.22 This is the most interesting category of
exceptions to reasonableness because it represents a clear departure from
the court’s recent jurisprudence (which held that an appeal provision was
merely a factor to be considered in the standard of review analysis) and,
also, the one that has become relevant in the context of private arbitration.
The majority’s reasons start from the position that the standard of review
analysis must give effect to a legislature’s institutional design choices,
which can be determined from statutory language:
It should therefore be recognized that, where the legislature has provided
for an appeal from an administrative decision to a court, a court hearing
such an appeal is to apply appellate standards of review to the decision.
This means that the applicable standard is to be determined with reference
to the nature of the question and to this Court’s jurisprudence on
appellate standards of review.23
They continue by explaining that there is no satisfactory justification for
the court to give no effect to statutory rights of appeal in the standard of
review analysis.24 This leads to the observation that legislatures must mean
the same type of procedure whenever they use the term “appeal”, regardless
of the context:
More generally, there is no convincing reason to presume that legislatures
mean something entirely different when they use the word “appeal”
in an administrative law statute than they do in, for example, a criminal
or commercial law context. Accepting that the word “appeal” refers to the
same type of procedure in all these contexts also accords with the presumption
of consistent expression, according to which the legislature is
presumed to use language such that the same words have the same
meaning both within a statute and across statutes.25
In recognizing that the presence of a statutory appeal alone is sufficient
to rebut the presumption of reasonableness, the majority “closed the door”
on the application of the contextual approach—including the consideration
of a tribunal’s expertise—in determining the standard of review.26
APPLICATION OF VAVILOV TO ARBITRATION APPEALS
As alluded to above, the uncertainty caused by Vavilov with respect to commercial
arbitration appears to have been unintended. At first glance, and in
light of the comments by Justice Rothstein in Sattva regarding the analogies