THE ADVOCATE 671
VOL. 79 PART 5 SEPTEMBER 2021
uate their arbitration and whether they want to provide for appeals. This
will be particularly pertinent while the uncertainty around the application
of Vavilov remains unresolved.
WHAT HAVE THE COURTS DONE POST-VAVILOV?
Needless to say, the decision of the majority of the Supreme Court of
Canada to defer to another day the question of whether Vavilov applies to
commercial arbitration looms large over all of the lower court decisions to
date. In particular, the majority’s reluctance to endorse the statutory interpretation
reasoning of the minority suggests that there is significant room
for debate.
As mentioned above, the superior courts have split on whether Vavilov
applies to the appeal of commercial arbitration decisions. Interestingly, the
split shows neither a geographic nor legislative origin.
Vavilov Applies and the Standard is Correctness
Buffalo Point First Nation v. Cottage Owners Association
Buffalo Point First Nation v. Cottage Owners Association50 was the first decision
relating to an appeal of an arbitral award published post-Vavilov. In this
case, the First Nation leased land to individuals, represented by the Cottage
Owners Association, for cottage development. The cottagers and the First
Nation engaged in a series of legal disputes in relation to the lease, including
arbitration.
The Manitoba Court of Queen’s Bench held that, where an arbitration
agreement is silent respecting the right of appeal, s. 44(2) of the Manitoba
Arbitration Act applies.51 The court queried whether Vavilov applied to its
determination of the standard of review and, without much discussion of
whether it was appropriate to apply administrative law principles to review
of arbitral awards, determined that it did.52 As such, the court held that it
was required to consider the question of law before it on the appellate standard
of correctness.
Allstate Insurance Company v. Her Majesty the Queen
Allstate Insurance Company v. Her Majesty the Queen53 was the second
reported appeal of an arbitral award following Vavilov. This case related to
an automobile insurance policy that Allstate alleged was cancelled at the
time of a catastrophic motor-vehicle accident. The issue proceeded to arbitration
pursuant to O. Reg. 283/95.54 Allstate appealed the arbitral award.
In its analysis of the standard of review, the Ontario Superior Court of
Justice considered whether Vavilov changed the standard of review in