Key takeaways
- The Supreme Court of Canada (SCC) granted appeal for the Buffalo Point and Kingsgate Property cases to clarify the standard of review on arbitral awards.
- Two courts disagree: the MBCA applies a reasonableness standard, while the BCCA applies a correctness standard.
- The SCC’s decisions in Buffalo Point and Kingsgate Property will help resolve the contradictory standards post-Vavilov.
On September 24, 2026, the Supreme Court of Canada (SCC) granted leave to appeal the Court of Appeal for British Columbia’s (BCCA) ruling in Vancouver School District No. 39 v. Kingsgate Property Ltd. (Kingsgate Property) which held that the standard of review on an appeal from an arbitral award was the appellate standard, i.e., correctness on questions of law.1
Previously, on July 23, 2026, the SCC granted leave to appeal the Manitoba Court of Appeal’s (MBCA) ruling in Buffalo Point First Nation v. Buffalo Point Cottage Owners Association Inc (Buffalo Point), which reached the opposite conclusion and held that the standard of review on an appeal from an arbitral award was reasonableness.2Presumably, this means the SCC will fill in a gap left by its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov (Vavilov)3 and definitively establish the standard of review on appeals of arbitral awards.
The opposing holdings of the MBCA and BCCA show the gap in the law that the SCC now appears set to clarify.
Background: the SCC’s prior jurisprudence regarding the standard of review in commercial arbitrations
The SCC’s pre-Vavilov jurisprudence explicitly mandates the reasonableness standard. In Sattva Capital Corp v. Creston Moly Corp (Sattva), Justice Rothstein, writing for the Court, held that in commercial arbitration appeals, the standard of review is reasonableness for almost all questions of law.4 Only if a question of law is a constitutional question or a question of central importance to the legal profession, should a court apply the correctness standard.5
Following Sattva, in Teal Cedar Products Ltd. v. British Columbia (Teal Cedar), Justice Gascon, writing for the majority, held that a reasonableness standard on commercial arbitration appeals “dovetails with the key policy objectives of commercial arbitration, namely efficiency and finality”.6 In Teal Cedar, the SCC affirmed that a reasonableness standard applies to commercial arbitration appeals.7
The SCC’s subsequent decision in Vavilov complicated matters. In Vavilov, the SCC held that “where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision”.8 Since appeals in commercial arbitrations are generally grounded in the relevant Arbitration Act, a question arose as to whether Vavilov mandated that commercial arbitration appeals are to be heard on an appellate standard of review, i.e., correctness on questions of law.9
This issue was flagged by the SCC in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District (Wastech). Justice Kasirer, writing for the majority, noted that, after Vavilov, it is unclear what the standard of review is on appeals from commercial arbitration awards. However, he held that the issue was not relevant in Wastech and left the matter to be decided when a more appropriate case came forward.10 Notably, Justices Brown and Rowe, writing for a three-judge minority in Wastech, would have held that a correctness standard should apply to commercial arbitration appeals. The minority writes that “what matters are the words chosen by the legislature […] Thus, where a statute provides for an “appeal” from an arbitration award”, the correctness standard should apply.11
MBCA: the standard of review is reasonableness
In Buffalo Point, the arbitrator determined that they had jurisdiction to revise a settlement agreement between the parties and to replace a provision for binding mediation with a “Debt Mechanism”.
The Buffalo Point First Nation successfully appealed, challenging the arbitrator’s jurisdiction. Justice Martin at the Manitoba Court of King’s Bench found, on a correctness standard, that the arbitrator was incorrect and did not have jurisdiction to implement the Debt Mechanism.12
The Buffalo Point Cottage Owners’ Association appealed that decision to the MBCA, challenging Justice Martin’s use of a correctness standard.
Justice Monnin, writing for the Court, held that the standard of review should be reasonableness. He held that Sattva and Teal Cedar should still apply, as Vavilov did not expressly overturn either case.13 Additionally, he noted that Vavilov only dealt with administrative decisions and that commercial arbitrations are unlike administrative decisions because the parties engage in the process by mutual choice, not statutory process.14 Citing Teal Cedar, Justice Monnin also held that, unlike in administrative decisions, parties choose the arbitrator, which, with the key policy objective of efficiency and finality, shows a preference for the reasonableness standard.15 Therefore, per Justice Monnin, Vavilov’s holding that a correctness standard should apply wherever a statutory appeal mechanism exists, was not applicable to commercial arbitrations.16
Interestingly, Justice Monnin also did not follow the majority’s holding in Vavilov that courts should use the “presumption of consistent expression”.17 Instead, relying on the Vavilov minority, Justice Monnin held that the use of “appeal” in Manitoba’s Arbitration Act can have a different intended meaning than the use of “appeal” in other Manitoba statutes.18
BCCA: the standard of review is correctness
In Kingsgate Property, an arbitrator ruled on the appropriate method for determining the rent for a commercial property. On appeal, the chambers judge avoided addressing the standard of review by holding that the arbitral award was both incorrect and unreasonable.
At the BCCA, Justice Wilcock wrote partially dissenting reasons, but the full panel agreed with his standard of review analysis.19 After a lengthy review of the state of the law on this issue, Justice Wilcock held that Buffalo Point is incorrect that Sattva remains a binding authority. Instead, Justice Wilcock held that Sattva and Vavilov diverged irreconcilably, and, since Vavilov is newer, it is binding on lower courts.20 He further noted that Wastech identified that the standard of review is now an unsettled point of law, which he used as an indication that the SCC has acknowledged that Sattva is no longer the binding authority.21
With Sattva out of the way, Justice Wilcock determined that, per Vavilov, the appellate standard of review applies to commercial arbitrations. He held that there is little reason to uphold differing standards of review for administrative appeals and commercial arbitrations for two main reasons.22 First, any specific expertise that an arbitrator has in the matter under appeal is no different from the specific expertise that an administrative decision maker possesses relevant to their matters.23 Second, any concerns regarding parties’ desire for speed and finality in an arbitration decision are addressed through the ability of the parties to fully prohibit appeals in their arbitration clauses.24
Justice Wilcock also specifically rebuffed Justice Monnin’s comments in Buffalo Point on the “presumption of consistent expression”, holding that the “fact that the [Vavilov] majority relied upon the rule [of consistent expression] in arriving at its conclusion determines the question”.25
Therefore, Justice Wilcock held that the appellate standard of review applies, i.e., correctness on the questions of law.26
Summary
After Vavilov it is unclear what standard of review applies on appeals of commercial arbitration decisions. This ambiguity is demonstrated by provincial courts of appeal explicitly disagreeing with one another. By granting leave to appeal to Buffalo Point and Kingsgate Property, the SCC has an opportunity to definitively establish what standard of review should apply. We will continue following both of these cases.
Footnotes
1. Vancouver School District No. 39 v. Kingsgate Property Ltd, 2026 BCCA 98.
2. Buffalo Point First Nation v. Buffalo Point Cottage Owners Association Inc., 2025 MBCA 72; Supreme Court of Canada Leave Decision Number 42035.
3. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
4. Sattva Capital Corp v. Creston Moly Corp, 2014 SCC 53 at para 106.
5. Sattva, 2014 SCC 53 at para 106.
6. Teal Cedar Products Ltd v. British Columbia, 2017 SCC 32 at para 74.
7. Teal Cedar, 2017 SCC 32 at para 79.
8. Vavilov, 2019 SCC 65 at para 37.
9. The relevant Arbitration Act would generally depend on which province’s laws governed the arbitration.
10. Wastech Services Ltd v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 at para 46.
11. Ibid., at para 120.
12. Buffalo Point First Nation et al. v. Cottage Owners Association, 2023 MBKB 141.
13. Buffalo Point, 2025 MBCA 72 at para 44.
14. Buffalo Point, at para 45.
15. Buffalo Point, at para 45.
16. Buffalo Point, at para 44.
17. Buffalo Point, at para 46, citing Vavilov, 2019 SCC 65, at para 44.
18. Buffalo Point, at para 46, citing Vavilov, at para 247.
19. Kingsgate Property, 2026 BCCA 98 at para 200.
20. Kingsgate Property, at paras 149–152.
21. Kingsgate Property, at para 156.
22. Kingsgate Property, at para 158.
23. Kingsgate Property, at para 159.
24. Kingsgate Property, at para 159.
25. Kingsgate Property, at para 166.
26. Kingsgate Property, at para 170.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[View Source]
