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Jan Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 81 of law extricable from the facts. That view has been criticized judicially and otherwise. The court also stated that the standard of review of an arbitrator’s alleged error of law in the construction of a contract generally will be reasonableness, that is, not correctness; correctness is the standard of review of a trial judge’s alleged error of law. That view also has been criticized judicially and otherwise. But some courts have taken these comments to heart. The Supreme Court of Canada will have more to say on these matters. Some questions remain. Is there an extricable error of law? What standard of review will prevail? Issues of the interpretation of standard form contracts may be treated differently. How should issues of statutory interpretation be treated? Should we bypass the trial level and go straight to the Court of Appeal to seek leave to appeal an arbitral award? Etc. These issues will be sorted out in time. The BCICAC initiative establishing an internal appellate regime may assist parties to reach finality without the need to litigate. (Those who are determined to fight will still continue to do so.) If potential error is apparent, the decision of an arbitral panel can be reviewed by three independent, experienced arbitrators. This may provide a modicum of comfort to those who want some assurance that a decision is correct. It may not, but the process is not written in stone. It can be changed or abandoned. It seems to me to be worth a chance to see whether the interests of parties are being served. The BCICAC initiative may also address a likely unintended and unforeseen outflow from Sattva: the reluctance of in-house counsel and advising counsel to recommend arbitration due to the potentially limited scope of the right of appeal on questions of law and the reasonableness (rather than correctness) standard of review. In the meantime, there are a number of issues to be addressed: to what extent will BCICAC appeals be de novo hearings; what will be the applicable standard of review applied by the review tribunal; if leave to appeal is sought under the Arbitration Act will it be of the appeal decision or the original decision; etc.? The appellate initiative of the BCICAC is an attempt to provide parties with a procedure to support the efficacy of commercial arbitration. It is a welcome and somewhat creative step that is not without precedent. In a recent address at an Advocates’ Society seminar, the Honourable Ian Binnie, Q.C., referred to an arbitration in New Brunswick in which the parties agreed to have the arbitration award reviewed by a panel of three retired judges. The arbitration was public; the parties agreed to eliminate an appeal of the initial award, but not of the review decision. An appeal of that deci-


Jan Advocate 2017
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