Deference Deference Shall You Do, For This Is Arbitral Review: Why Canadian Courts Should Exercise Maximal Deference When Reviewing Commercial Arbitral Awards for Legal Errors

Canadian Arbitration and Mediation Journal Vol. 27 Issue 1

9 Pages Posted: 28 Jun 2018

Date Written: June 13, 2018

Abstract

Canadian judges sitting in judicial review of administrative action regularly grit their teeth and declare “reasonable” decisions they might disagree with. Deference has come to define the Canadian approach to administrative law, requiring judges to abstain from substituting their views on the law for those of putatively expert tribunals.

In Sattva Capital Corp. v Creston Moly Corp, the Supreme Court of Canada recognized that private commercial arbitration tribunals are due similar deference, albeit for somewhat different reasons. As the Court did in Sattva, one might draw parallels between administrative tribunals and arbitral tribunals, most notably the presumptive expertise attributable to the decision-maker. But important differences also exist.

This paper contends that while the Supreme Court’s standard of review framework for appeals of commercial arbitral awards on questions of law set out in Sattva is largely apt, it contains a flaw rooted in overreliance on administrative law principles. Specifically, the Author argues the Court erred in retaining wholesale two categories of questions calling for non-deferential correctness review inspired by the Court’s decision in Dunsmuir v New Brunswick: 1) constitutional questions; and 2) questions of central importance to the legal system and outside the decision-maker’s expertise (“central importance/ outside expertise questions”).

Keywords: Arbitration, Standard of Review, Dunsmuir, Sattva, Commercial Arbitral Awards

Suggested Citation

Plotkin, James, Deference Deference Shall You Do, For This Is Arbitral Review: Why Canadian Courts Should Exercise Maximal Deference When Reviewing Commercial Arbitral Awards for Legal Errors (June 13, 2018). Canadian Arbitration and Mediation Journal Vol. 27 Issue 1, Available at SSRN: https://ssrn.com/abstract=3197141

James Plotkin (Contact Author)

Gowling WLG (Canada) LLP ( email )

Ottawa, Ontario
Canada

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