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VOL. 79 PART 5 SEPTEMBER 2021
administrative law, the reasons of the Supreme Court of Canada in both Vavilov
and Wastech have led to uncertainty and renewed debate on the appropriate
standard of review for appeals of commercial arbitration awards.
Based on the basic reasoning of Vavilov—i.e., the legislature knows what
it means to use the word “appeal” in legislation and is consistent in its application
of the term—the new framework for standard review applies to all
statutory appeals, including appeals from commercial arbitral awards,
absent a contrary indication in the legislation. However, as discussed in this
article, the doctrine of stare decisis argues against assuming the Supreme
Court of Canada intended to overrule recent decisions implicitly and without
reasoned analysis. It is likely that courts will try to avoid the issue (by
holding that the standard of review will not affect the result) until the
Supreme Court of Canada provides further clarity.
ENDNOTES
1. 2019 SCC 65 Vavilov.
2. 2008 SCC 9 Dunsmuir.
3. Paul Daly, “Unresolved Issues after Vavilov” (Hugh
Ketcheson QC Memorial Lecture, 19 November
2020).
4. 2014 SCC 53 Sattva.
5. 2021 SCC 7 Wastech.
6. Ibid at para 46.
7. 2020 BCCA 274 Nolin.
8. Arbitration Act, RSBC 1996, c 55. In their factums,
the parties agreed that Vavilov established the
proper route of review. However, during oral argument,
counsel for the defendant stepped back from
that position.
9. Nolin, supra note 7 at para 39.
10. Travelers Insurance Company of Canada v CAA
Insurance Company, 2020 ONCA 382.
11. Northland Utilities (NWT) Limited v Hay River (Town
of), 2021 NWTCA 1 Northland.
12. Arbitration Act, RSNWT 1988, c A-5; Northland,
supra note 11 at paras 44, 85. Although the decision
in Northland was split on whether the question being
appealed raised an extricable question of law, the
Court of Appeal unanimously held that Vavilov did
apply to commercial arbitration.
13. Wastech, supra note 5 at para 46.
14. Cities, Towns and Villages Act, SNWT 2003, c 22,
Sch B, s 91(5).
15. Vavilov, supra note 1 at paras 9, 11.
16. Ibid at para 21, citing Dunsmuir, supra note 2 at
para 133.
17. Vavilov, supra note 1 at para 11.
18. Ibid at para 24.
19. Ibid at paras 27–31.
20. Ibid at para 70.
21. Ibid.
22. Ibid at para 37.
23. Ibid at para 37.
24. Ibid at para 41.
25. Ibid at para 44.
26. Ibid at para 47.
27. Sattva, supra note 4.
28. Ibid at para 104.
29. Ibid at para 105.
30. Ibid at para 106.
31. Dunsmuir, supra note 2 at para 49.
32. 2016 SCC 47 at para 33.
33. Sattva, supra note 4 at para 105.
34. 2017 SCC 32 at para 74.
35. Ontario (Attorney General) v Fraser, 2011 SCC 20
at paras 56–57.
36. Vavilov, supra note 1 at para 254.
37. Ibid at para 261, citing Planned Parenthood of
Southeastern Pennsylvania v Casey, Governor of
Pennsylvania, 505 US 833 (1992) at 866.
38. Wastech, supra note 5 at paras 45–46; R v Oland,
2017 SCC 17 at para 26; Frank v Canada (Attorney
General), 2019 SCC 1 at para 41.
39. Vavilov, supra note 1 at para 270.
40. Ibid at para 247.
41. Paul Daly, “The Vavilov Framework and the Future of
Canadian Administrative Law”, Ottawa Faculty of
Law Working Paper No. 2020-09 at 7.
42. Federal arbitration legislation also exists, which will
not be discussed in detail in this article: Commercial
Arbitration Act, RSC 1985, c 17.
43. UNCITRAL Model Law on International Commercial
Arbitration (1985), UN Doc A/40/17, Ann I
adopted by the United Nations Commission on International
Trade Law on 21 June 1985, as amended
by the United Nations Commission on International
Trade Law on 7 July 2006.
44. Arbitration Act, RSA 2000, c A-43, s 44; The Arbitration
Act, 1992, SS 1992, c A-24.1, s 45; The
Arbitration Act, CCSM c A120, s 44; Arbitration
Act, 1991, SO 1991, c 17, s 45; Arbitration Act,
RSNB 2014, c 100, s 45.
45. Commercial Arbitration Act, SNS 1999, c 5, s 48.