668 THE ADVOCATE
VOL. 79 PART 5 SEPTEMBER 2021
The presumption of reasonableness is grounded in the legislature’s
choice to give a specialized tribunal responsibility for administering the
statutory provisions, and the expertise of the tribunal in so doing. Expertise
arises from the specialization of functions of administrative tribunals
like the Board which have a habitual familiarity with the legislative
scheme they administer: “. . . in many instances, those working day to day
in the implementation of frequently complex administrative schemes
have or will develop a considerable degree of expertise or field sensitivity
to the imperatives and nuances of the legislative regime”.32
Although an arbitrator in a commercial arbitration may not always have
the same type of expertise an administrative decision maker does, the fact
that the parties choose their own decision maker leads to the presumption
that he or she has some expertise or qualification that is acceptable to the
parties.33 The Supreme Court of Canada’s decision in Sattva was affirmed by
a majority of the court in Teal Cedar Products Ltd. v. British Columbia.34
Therefore, while administrative law principles have not been directly
applied to commercial arbitration, Justice Rothstein drew and relied on
analogies between the two processes to conclude that the standard of reasonableness
was applicable. This suggests that Vavilov’s abolition of expertise
as a factor to be considered in the standard of review analysis and the
clear direction that “an appeal is an appeal” could result in Vavilov overturning
the court’s decision in Sattva, making the appellate standard the new
standard of review applicable to commercial arbitration.
Stare Decisis
The wrinkle in the reasoning that leads to the conclusion that Vavilov
applies to commercial arbitration, which was noted by the majority in
Wastech, is that Vavilov mentions neither Sattva nor commercial arbitration
at all (despite the fact that the British Columbia International Commercial
Arbitration Centre Foundation intervened in Vavilov).
It is uncontroversial that the Supreme Court of Canada is able to overturn
its own precedents and Vavilov, of course, is a case that does just that. However,
when it comes to overturning its own precedents, the court has advocated
for caution and has commented that overturning recent precedent,
particularly precedent that represents the view of firm majorities, is a very
serious matter.35 The rationales behind stare decisis are that the law should be
predictable, consistent and stable; that judicial administration should be sound
and fair; and that the system should foster public confidence in the administration
of justice.36 Overturning precedent too often or without compelling justification
could create a sense of arbitrariness or judicial incompetence:
There is . . . a point beyond which frequent overruling would overtax the
country’s belief in the Court’s good faith … The legitimacy of the Court
would fade with the frequency of its vacillation.37