674 THE ADVOCATE
VOL. 79 PART 5 SEPTEMBER 2021
brought pursuant to the parties’ contract and not pursuant to a statutory
right of appeal:
However, this appeal is not brought pursuant to a statutory right of
appeal. It is brought pursuant to s. 9.2 of the Gaming Revenue Sharing
and Finncial Agreement which provides as follows:
The award of any arbitration shall be appealable by the parties to the
appropriate Ontario court on questions of law, or questions of mixed fact
and law, including, without limitation, matters of process and procedure.
Section 45 of the Arbitration Act does not mandate an appeal from an arbitration
decision but provides for an appeal “If the arbitration agreement
so provides”. This appeal is therefore not statutorily mandated.70
The court distinguished the situation before it from the appeal in Allstate,
on the grounds that the appeal in that case was statutorily mandated, and
held that Allstate does not stand for the broad proposition that Vavilov has
changed the standard of review to be applied generally to appeals from commercial
arbitration.71
The court also found that it was not reasonable to conclude that the
Supreme Court of Canada meant to overrule Sattva or Teal Cedar, since neither
those decisions nor arbitration generally were considered in Vavilov.72
Further, the court stated that the constitutional principles justifying deference
underlying administrative law do not apply to commercial arbitrations,
which are guided by different, commercial considerations.73
Therefore, it did not necessarily follow that a change to the judicial review
framework for administrative decisions automatically changed the standard
of review framework for arbitral awards.74
Where Are We Now?
After Wastech, it appears that parties to arbitration are going to have to
endure ongoing uncertainty until there is another opportunity for the
Supreme Court of Canada consider whether Vavilov applies to commercial
arbitration. The majority of the court in Wastech expressly stated that they
wanted both submissions on the question and the assistance of reasons on
point from the courts below. At this time, there is no case that is clearly
poised to present the Supreme Court of Canada with the opportunity to
resolve this issue.
CONCLUSION
Standard of review seems to be a perennially hot topic. It is recalibrated
every decade to better balance the authority of non-judicial decision makers
and the judiciary that has a constitutional or legislative mandate to review.
Although Vavilov has created a more streamlined and certain process for