THE ADVOCATE 667
VOL. 79 PART 5 SEPTEMBER 2021
between administrative decision making and arbitral decision making, it
may seem obvious that appeals of private arbitral awards would be affected
by Vavilov’s changes to standard of review.27 Further, the minority of the
Supreme Court of Canada’s position in Wastech, that the question is simply
one of statutory interpretation, is compelling. However, a review of the doctrine
of stare decisis, and the policies and principles underlying commercial
arbitration, supports the majority’s position in Wastech: the application of
Vavilov to private commercial arbitration is a complicated question that
requires thorough consideration.
Sattva and the Standard of Review of Arbitral Decisions
Although most courts approached appeals from commercial arbitral awards
from the standard of reasonableness, the law in Canada regarding the standard
of review to be applied to arbitral decisions was not clarified until the
Supreme Court of Canada’s decision in Sattva Capital Corp. v. Creston Moly
Corp. In Sattva, Justice Rothstein, for the court, acknowledged that appellate
review of commercial arbitration awards takes place under a unique
regime that is specifically tailored to the objectives of commercial arbitration.
28 However, he pointed to two key factors, shared between judicial
review and arbitral appeals, that suggested the Dunsmuir framework could
be helpful in determining the appropriate standard of review of commercial
arbitration awards: (1) the appointment of a non-judicial decision maker to
determine the issues between the parties; and (2) the presumed expertise
of said decision maker.29
Considering both of these factors and the post-Dunsmuir jurisprudence,
Justice Rothstein confirmed that the standard was reasonableness:
In the context of commercial arbitration, where appeals are restricted to
questions of law, the standard of review will be reasonableness unless the
question is one that would attract the correctness standard, such as constitutional
questions or questions of law of central importance to the legal
system as a whole and outside the adjudicator’s expertise.30
Before Vavilov, the expertise of the non-judicial decision maker was a primary
factor in the courts’ deferential approach to the decisions of administrative
tribunals. Reasonableness was considered the appropriate standard
in situations with expert decision makers because it signalled respect for
the legislature’s choice to leave some matters in the hands of administrative
decision makers, who could draw on their expertise gained from working
day to day with complex administrative schemes.31 This principle was
repeated numerous times by the Supreme Court of Canada since Dunsmuir,
including in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres
Ltd., where the majority of the court held: