A New Era Of "Reasonableness" Dawns On Appeals From Private Arbitrations

On August 4, 2016, the Ontario Court of Appeal released its decision in Intact v. Allstate¹ and changed the correctness standard of review for appeals from private arbitrations to one of reasonableness. The impact of this change will most likely have a chilling effect on the ability to successfully appeal them. However, given the spate of recent priority and loss transfer appeals, skeptical minds might question whether the change perhaps came about by design.

In coming to its decision, the Court of Appeal held that the administrative law framework set out in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 applied, rather than the "appellate" framework, as an appeal of an insurance arbitration reviews the decision of a non-judicial decision maker. As such, even though the review is "styled as an appeal" the administrative law framework should determine the applicable standard