In any appeal, figuring out what standard of review should be applied to the lower court’s decision is an important question. Prior to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship Immigration) v. Vavilov, 2019 SCC 65, when a party to a family law arbitration sought to appeal that arbitration, the judge hearing that appeal would apply a standard of reasonableness to the arbitrator’s decision. So long as the decision was within the range of reasonable outcomes, an appeal judge would not interfere.
Following the Vavilov decision, a lot of uncertainty was introduced into appeals from arbitrations, both family and otherwise. This is because the Vavilov decision changed the standard of review on judicial review matters, but left open the possibility that the standard of review had changed for appeals from arbitrations as well.
Post-Vavilov, there appeared to be two options for standards of review on family law arbitration appeals. Either the reasonableness standard could continue to apply as it had pre-Vavilov or the “appellate standards of review” would apply. A traditional appellate standard of review would mean that a question of law would be reviewed on a correctness standard but a question of mixed fact and law would be reviewed on the standard of palpable and overriding error (unless an extricable legal question was identified). If appellate standards applied, appellants would have an easier standard of review on questions of law but a more challenging standard on questions of mixed fact and law.
Following the Vavilov decision, courts in British Columbia seemed reluctant to decide one way or another. Both the Supreme Court and Court of Appeal heard various appeals of arbitrations and continuously decided that they didn’t need to decide which standard of review applied. That is, the constant refrain was “the result would be the same if we used reasonableness or if we used appellate standards.” While it is no doubt appropriate for a court to refrain from deciding a legal question that has no effect on the matter before it, the seemingly never-ending refusal to clarify this important question of law was frustrating to appellate practitioners.
At last, in the family realm, we appear to have a resolution coming from two British Columbia Supreme Court decisions. In August of last year, Justice Stephens waded into the debate and opted to decide the issue. In Zemtsova v. Shevalov Estate, 2023 BCSC 1375, Justice Stephens, after quite a lengthy discussion, decided that appellate standards would apply to appeals from family law arbitrations. Earlier this year, Justice Brongers in Botten v. Botten, 2024 BCSC 39, reviewed and endorsed the Zemtsova decision.
For now, appellate standards of review will apply to appeals from family law arbitration, unless the Court of Appeal intervenes.
Of course, absolute clarity on this matter is perhaps too much to ask for. Yesterday, the Court of Appeal released its decision in Eldridge v. Eldridge, 2024 BCCA 21, an appeal of an appeal from a family law arbitration. Neither Zemtsova nor Botten appeared to be before the Court in Eldridge, and the Court took the approach of not needing to decide which standard of review applied. However, the Court did caution judges hearing appeals from arbitrations should exercise a “high degree of deference to the arbitrator regardless of the particular standard of review to be applied.” This is because a family law arbitration is not simply “one more layer of litigation”. Arbitration is an alternate dispute resolution mechanism, not just another step on the path towards the courts. Let that be a cautionary tale for anyone who argues that a judge on appeal ought to be more interventionist in an arbitrator’s decision. Whether one asks if the arbitrator was correct, reasonable, or palpably and overridingly wrong, significant deference is owed to their analysis.