Authors: Braeden Cornick, Helga Van Iderstine, K.C.
Often times, clients will engage a lawyer only after the first level of an administrative or arbitral decision has been levied against them.
Whether it’s a decision of a residential tenancy board, a professional college or an arbitration under a services contract, decisions of administrative boards and certain arbitrations have the potential to significantly impact one’s plans with respect to the matters under review. Understanding the different avenues to appeal administrative and arbitration decisions and how those avenues impact the standard a reviewing Court will employ is important for any appeal.
When appealing or applying for judicial review of an arbitration or administrative decision it is important to understand that while the case law overlaps, and at times diverge, it continues to evolve. Note, however, that decisions of labour tribunals and labour arbitrators may at times require separate considerations than those outlined below.
Vavilov
There are important factors to keep in mind both for counsel assisting with an appeal and for clients who are facing the consequences of the administrative or regulatory decision. Four years ago, the Supreme Court of Canada in the Minister of Citizenship and Immigration v. Vavilov – 2019 SCC 65 clarified and reconsidered the standard of review to be applied to judicial review on decisions made by administrative (regulatory) decisionmakers, including administrative boards and tribunals. In doing so, the Court departed from existing and prior case law in its new application of the standard of review. It also provided direction on the proper application of the reasonableness standard.
Since these changes were so significant, prior case law on the issue of standard of review should be approached very carefully.
The first consideration from Vavilov, when reviewing an administrative decision, is that a Court reviewing a decision of an administrative body will always review the decision with a presumption that the standard of review is reasonableness. The reasonableness standard is rebutted in two types of cases. Firstly, those which arise from circumstances where there is a specific language in a statute which describes the applicable standard. Secondly, in circumstances where the rule of law requires that the standard of correctness is to be applied. While not an exhaustive list, examples include:
- Questions of central importance to the legal system;
- True jurisdictional questions; and
- Questions involving the Constitution;
In such instances, a Court will review the decision to ensure it was the correct decision, not just a reasonable decision. In Society of Composers, Authors, and Music Publishers of Canada v. Entertainment Software Association, the Supreme Court of Canada further added to the categories in which correctness would apply and found that where a judicial Court and administrative appeal body have concurrent jurisdiction over a matter, the standard of review will also be correctness.
Vavilov also altered the standard of review where there is a statutory right of appeal from a decision of an administrative body. The majority in Vavilov held that when appealing the decision of an administrative body the standard of review is determined with reference to the nature of the question and to the Supreme Court of Canada’s jurisprudence on appellate standards of review as described in Housen v. Nikolaisen, 2002 SCC 33. In its simplest application, it applies a reasonableness test on questions of fact and a correctness test on questions of mixed fact and law.
Statutory appeals, judicial review or both?
Vavilov also made it clear that the existence of a limited right of appeal, such as a right of appeal on questions of law or a right of appeal with leave of a Court does not necessarily preclude a Court from considering other aspects of a decision in a judicial review proceeding.
The Manitoba Court of Appeal in Smith v The Appeal Commission, 2023 MBCA 23 recently held that judicial review remained available to an aggrieved party, even in the face of the Victims’ Bill of Rights, CCSM c. V55, which restricted appeals from a director’s decision to questions of law or jurisdiction alone. While the appellant had already exercised her statutory right of appeal on a question of law, the Court held that she was also entitled to a reasonableness review of the determinations of fact or mixed fact and law: “a limited right of appeal on some questions does not foreclose any other claim of error.”
The question of whether an aggrieved party can pursue judicial review of a decision, even in the face a privative clause remains a subject of debate and arguably inconsistent decisions across the country. It is expected that the Supreme Court of Canada will provide further guidance on this point in its pending decision in Yatar v. TD Meloche Monex. In this case, the Ontario Court of Appeal found that the right to judicial review should be used sparingly where there is a statutory right of appeal.
Appealing an arbitration decision
Appeals from arbitration decisions present different challenges. While Vavilov provided a framework for appeals of administrative decision, the Vavilov framework as it applies to appeals of arbitration decision remains a subject of debate. Indeed, in separate decisions from Manitoba, British Columbia and Ontario, Courts of Appeal have either applied the new standards from Vavilov (see Buffalo Point First Nation et al. v. Cottage Owners Association, 2023 MBKB 141), declined to apply the standard from Vavilov (see Lululemon Athletica Canada Inc. v. Industrial Colour Productions Inc., 2021 BCCA 428) or suggested that the standards do not apply to commercial arbitration (see Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2021 ONCA 592).
Key takeaways
When considering an appeal of an arbitration decision, the starting point is always the provincial arbitration legislation. Where the provincial statute does not clarify the standard of review to be applied (or the questions that can be appealed), the caselaw then may clarify that standard and the analysis in Vavilov needs to be considered. Given the current uncertain state of the law respecting arbitration appeals, further decisions will be required to clarify the law respecting the standard of review applied on such appeals.
MLT Aikins will continue to review such decisions, as well as the upcoming Yatar decision to provide the most up-to-date information to clients.
If you have questions about appeals from administrative and regulatory decision, please contact Sharon Au (Alberta), Lynsey Gaudin (British Columbia) or Helga Van Iderstine, K.C. (Manitoba).
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.