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Recent SCC Case Interprets Vavilov With Implications For Family Law Med/Arb

Recent SCC Case Interprets Vavilov with Implications for Family Law Med/Arb

In December 2019 the SCC released the important decision of Vavilov regarding standard of review, and Christine Silverberg and I published a two part article in The Lawyer’s Daily on the implications for an appeal from a family law med/arb, and the article is here and here. In the context of an appeal from a family law arbitrator J.M. Ross J of the ABQB n the decision of Clark v. Unterschultz applied such a view of Vavilov. The bottom line of this view is that for questions of law the higher standard of correctness will be applied to an appeal from an arbitrator. Opposing case law and views articulated by several members of the Calgary family law bar reflect that this is a controversial interpretation. Their view in a nutshell is that the principles of Vavilov with respect to standard of review. apply only to administrative tribunals and not to private (or “commercial”) arbitrators, such that the lower standard of reasonableness will apply to an appeal from a commercial arbitrator.  In a SCC decision released yesterday, Wastech Services Ltd. v. Greater Vancouver Sewage and Drainage District, 2021 SCC 7, the concurring minority judgment explicitly applies the view reflected in the judgment of Ross J and our article regarding the standard of review from a commercial arbitrator in view of Vavilov. The majority in Westech declined to decide the issue.