Canada: Review Of Arbitral Awards: Where Is Sattva Taking Us?

Last Updated: September 8 2015
Article by Thomas Heintzman

The decision of the Supreme Court of Canada in Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53 (Sattva) is a seminal decision in the review of arbitral awards. That decision apparently set a wide net of protection around arbitral awards. It did so by ruling that an arbitral award interpreting a contract should usually be considered to be based upon mixed fact and law. Accordingly, such an arbitral decision may not be appealed if the only ground of appeal is an error of law. Moreover, if the decision is otherwise reviewable by the court, then the standard of review is reasonableness, not correctness. However, the Supreme Court said that, if a separate issue of law can be discerned in the arbitral award, then the decision can be reviewed on a standard of correctness. The Sattva decision has been reviewed in my previous article dated August 10, 2014.

The Sattva decision was recently applied by the British Columbia Court of Appeal in Teal Cedar Products Ltd. v. British Columbia. The Teal decision is important because the two decisions in Sattva and Teal both arose from appeals from decisions of the British Columbia Court of Appeal. The Teal case was sent back by the Supreme Court of Canada to the B.C. Court of Appeal to be re--‐considered in light of the Sattva decision.

The Background To The Teal Decision

The Teal decision was reviewed by me in an article dated December 1, 2013 relating to an earlier decision of the Supreme Court of Canada relating to the award of compound interest.

Teal had been issued timber licenses by the province of British Columbia under the B.C. Forest Act. By ministerial order, Teal's allowable annual cut and cut areas were reduced. Teal was entitled to compensation and its claim was submitted by the parties to arbitration. That claim included a claim for interest. In the original decision of the B.C. Court of Appeal, the majority of that court held that the arbitrator had mis--‐interpreted the statutory provisions applicable to Teal's substantive claim and the provisions relating to interest. That decision was appealed to the Supreme Court of Canada. In light of its decision in Sattva, the Supreme Court ordered that the appeal in Teal v. B.C. be re--‐heard by the B.C. Court of Appeal.

Second Teal Decision

The B.C. Court of Appeal noted that Sattva involved an arbitrator's interpretation of a contract, not a statute. The court said that, according to Sattva, an arbitrator's decision interpreting a statute should be reviewed on a standard of reasonableness when "the error of law is within the expertise of the arbitral tribunal and is not a question of law of central importance to the legal system as a whole." Teal argued that the decision of the arbitrator in the present case fell into neither exception and that therefore the arbitrator's decision should be given deference and only set aside if it was unreasonable.

The B.C. Court of Appeal disagreed. It said:

"None of the criteria that might justify the deference associated with the reasonableness standard of review in respect of statutory interpretation is present here. Specifically, it is not suggested the arbitrator had any specialized expertise in forest legislation or forestry tenures and it certainly could not be said the Act was his "home" statute. Although the parties chose the arbitrator (the Court is not privy to the reasons for his selection), it is significant that arbitration was statutorily required (Act, s. 6(6)). As the Province says, the statutory interpretation question that arose — the meaning of compensation in s. 6(4) — was an issue of importance to compensation statutes generally, and arose for the first time under the Act in this arbitration. We agree with the Province these factors point to a standard of correctness..."

Furthermore, the B.C. Court of Appeal said:

"In any event, Sattva did not explicitly restrict, or provide an exhaustive list of, the exceptional circumstances in which an arbitrator's award based on a question of law would be reviewable on a standard of correctness. The Court was providing examples that cannot be read as excluding the interpretation of a statute."

In the result, the court held that the interpretation of the Forestry Act was a question of law to which a correctness standard applied. Since the arbitrator's interpretation of the Act was not correct, it was properly set aside in the prior decision.

In any event, the court held that the arbitrator's decision was unreasonable and should be set aside under the unreasonableness test. According to the court, the arbitrator's decision "provides for a substantial publicly financed windfall, which would serve no purpose". The arbitrator's award was based upon "the depreciated replacement value of all of the improvements made to Crown land in the affected areas of each of Teal's three tenures" while the proper interpretation of the Act only provided compensation for the holder's "actual financial loss."

In determining what a "reasonable" decision of an arbitrator is, the B.C. Court of Appeal adopted its prior decision in British Columbia Hydro and Power Authority v. British Columbia (Workers' Compensation Board), 2014 BCCA 353, in which it had given the following meaning to the word "reasonable":

"A reasonable decision must be both factually and legally defensible. Where the legal issue under examination is one of statutory interpretation, the common objective of both administrative decision makers and courts must be to ascertain the intent of the legislature by applying the "modern principle" of statutory interpretation. This requires an examination of the words of the provision under consideration according to their grammatical and ordinary sense, in their entire context, and in harmony with the scheme and object of the Act. The fact that the choice between reasonable interpretations falls to the administrative decision maker does not absolve it from following this cardinal principle...".

Since the Forestry Act provided for "compensation", the arbitrator's award of an amount which was "in no way linked to Teal's actual financial loss" was not consistent with this principle and was therefore unreasonable.

The B.C. Court of Appeal then turned to the question of whether its prior decision dealing with interest should be upheld in light of the Sattva decision. The arbitrator had allowed interest despite a clause in the arbitration agreement that the Province submitted precluded interest. The Chambers judge had held that the arbitrator's interpretation of the contract was based upon a consideration of the surrounding circumstances, and therefore amounted to a question of mixed fact and law, not a question of law. Since the arbitration statute in British Columbia only permits an appeal on a question of law, there was no right of appeal.

In its prior decision, the B.C. Court of Appeal had held that the decision of the arbitrator raised a pure question of law. It had held that the arbitrator's decision had changed the plain meaning of the arbitration agreement, which precluded the award of interest, and that decision therefore amounted to an error law. Accordingly, the court had set aside the arbitrator's decision.

In its present decision, the B.C. Court of Appeal held that nothing in Sattva required its prior decision to be changed, for three reasons:

  1. In Sattva, the Supreme Court had adopted the B. C court of Appeal's approach to identifying a question of law. In the present decision, the B. Court of Appeal said:

    "It seems clear that what the Court did in Sattva was to largely endorse the approach to ascertaining what constitutes a question of law and of mixed fact and law in contractual interpretation that has in recent years been taken by some courts as reflected in the authority cited which includes the Hayes Forest Services and Otter Bay decisions of this Court. As indicated, that is the authority upon which the reasons given for the majority [in the previous Teal decision] are predicated in determining that the arbitrator's interpretation of the Settlement Framework Agreement and Addendum #2 raise a question of law."

    In other words, the B.C. Court of Appeal held that the Supreme Court in Sattva endorsed the B.C. Court of Appeal's approach to identifying a discrete point of law in an arbitrator's decision, thereby entitling a reviewing court to review the decision based upon an error of law.

  2. In Sattva, the Supreme Court had not suggested or found that an error of law cannot be found in an arbitrator's decision just because the arbitrator had regard to the surrounding circumstance. The B.C. Court of Appeal said:

    "To the contrary, it is because contractual interpretation is an exercise in applying legal principles to the express language of an agreement considered in the circumstances that questions of law can arise."

    Accordingly, the B.C. Court of Appeal held that in its prior decision it had been correct in identifying a question of law even though the arbitrator's interpretation of the agreement was based upon the surrounding circumstances.

  3. In Sattva, the Supreme Court had reiterated that the extraneous circumstances cannot over--‐ride the plain meaning of the contract. That is the principle that the B.C. Court of Appeal had applied in its prior decision.

    Accordingly, the B.C. Court of Appeal upheld its prior decision setting aside the arbitrator's award of interest on the ground that that decision was contrary to the plain meaning of the Settlement Framework Agreement.

Discussion

The initial impression of Sattva was that it would substantially reduce the scope of review of arbitral decisions because the Supreme Court held that the interpretation of an agreement is normally a matter of mixed fact and law. Many arbitration statues only permit appeals on a question of law, not mixed fact and law. Accordingly, it was thought that Sattva had substantially eliminated appeals from arbitral decisions interpreting agreements.

This decision of the B.C. Court of Appeal in Teal v. B.C. may lead to the opposite conclusion for numerous reasons:

  1. The B.C. Court of Appeal has confirmed that Sattva has opened wide the evidence that must be considered in interpreting a contract. Now, the surrounding circumstances may and should be considered in interpreting the contract. While those circumstances cannot "overwhelm" the plain meaning, they may be considered, and once considered it is obvious that there is a wider basis for controversy or dispute, and uncertainty, about the real meaning of the contract.
  2. The B.C. Court of Appeal has held that if the arbitrator is considering a statute, then the standard of review is correctness, not reasonableness. So now there are two different standards of review, one for contracts and one for statutes.
  3. The B.C. Court of Appeal has adopted a very strict test of "reasonableness". The test appears to adopt almost all the ingredients of the correctness test. It is hard to imagine an interpretation of a statute that, under its test, will be found to be an incorrect but reasonable interpretation.
  4. Even though the arbitrator has considered the surrounding facts, that does not preclude the court from finding or identifying an error of law. It is not the arbitrator's process that is important. It is not a question of whether the arbitrator found or operated upon a principle of law that is incorrect. Rather, it is a question of whether the court can identify in, or distill from, the arbitral decision an error of law. If it can, then that decision may be set aside. Indeed, the B.C. Court of Appeal found that in Sattva, the Supreme Court had approbated its prior approach in identifying errors of law in arbitral decisions.
  5. The B.C. Court of Appeal has said that the decision in Sattva does not provide an "exhaustive list" of those circumstances in which an arbitral award may be reviewed on the basis of correctness. This means that courts may find other grounds for applying the correctness standard.

When all these ingredients are added up, the principles applied by the B.C. Court of Appeal seems to be very much the same as those which courts have historically applied in reviewing arbitral decisions. So perhaps, plus ca change....

Teal Cedar Products Ltd. v. British Columbia, 2015 BCCA 263, 2015 CarswellBC 1550

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