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appeals from insurance arbitrations mandated by legislation (the standard
of review had previously been reasonableness).55 The court held that Allstate’s
appeal was a statutory appeal and determined that the fact that parties
could agree on the scope of appeal from the arbitral award—i.e., they
could agree in the arbitration agreement to allow appeals of fact, law, and
mixed fact and law—did not change the fact that the appeal arose out of a
statutory appeal mechanism.56 Therefore, the court found that the appellate
standard of review applied.
Interestingly, in a footnote, the court distinguished between private commercial
arbitrations and insurance arbitration, stating the insurance arbitration
was not autonomous and self-contained in the same manner as
commercial arbitration. However, the language used by the court makes it
unclear whether this distinction would matter in light of a statutory appeal
provision.
Northland Utilities (NWT) Limited v. Hay River (Town of)
Northland Utilities (NWT) Limited v. Hay River (Town of) was the first appellate
court case to weigh in on the application of Vavilov to commercial arbitration.
57 As noted above, Northland is not a typical commercial arbitration,
since arbitration was mandated by the Cities, Towns and Villages Act.58 However,
the implications of this distinction were not dealt with by the Court of
Appeal for the Northwest Territories.
The Court of Appeal held that the Supreme Court of Canada’s silence on
the issue of commercial arbitration was not material to the question of Vavilov’s
applicability. Instead, the proper analysis was to determine whether
the reasoning of the majority in Vavilov applied to statutory appeals from a
commercial arbitrator’s decision.59
The Court of Appeal held that the presumption of consistent expression
applied equally to commercial arbitration as it did to administrative law.60
Further, Vavilov’s minimization of the role of expertise in the standard of
review analysis was held to support the argument that a commercial arbitrator’s
expertise does not justify exemption from an appellate standard of
review any more than does the expertise of an administrative decision
maker.61
Finally, looking at whether the application of Vavilov would make
Canada a less favourable jurisdiction for arbitration, the Court of Appeal
held that it would not:
It is difficult to follow the argument that the reliability of Canada as a
forum for resolution of local and global business disputes, would be rendered
less grounded in the rule of law in a rules-based system of law by
employing an appellate review standard. The Dunsmuir standard requir-