Young v. Saanich Police Department, 2003 BCSC 926 (CanLII).

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Young v. Saanich Police Department, et al Page 64 instead, confirmed Arbitrator Gilbert's decision. They seek a further order setting aside the October 4, 2002 decision of Arbitrator Katz. [135] The CRHC opposes the granting of any of the relief claimed on the basis that neither arbitrator erred or that any errors are insufficient to meet the applicable standards of review. In substance, the CRHC contends that the only issue 2003 BCSC 926 (CanLII) before Arbitrator Gilbert was whether other tenants were unreasonably disturbed by the petitioners. The CRHC says that the arbitrator had evidence before him to support his conclusion that the other tenants were unreasonably disturbed and that the conclusion was not patently unreasonable. The CRHC says that the petitioners failed to establish any reviewable error entitling them to a remedy. Standards of Review [136] I propose to begin by setting out the applicable standards of review. A judicial review is not the same as an appeal. It is limited here to determining whether the decision makers, in this case the arbitrators, acted strictly within the powers that have been delegated to them under the RTA. Judicial review focuses almost entirely on jurisdictional issues. Jurisdictional defects may include, for example, bias or reasonable apprehension of bias, not
Young v. Saanich Police Department, et al Page 65 considering relevant matters, making serious procedural errors or, in some circumstances, making an error of law. A discussion of most of these general principles may be found in Mikami v. Ambrozewicz, 2000 BCSC 1116. [137] Smith J. discussed the standard of review to be applied to arbitrators appointed under the RTA in Fulber v. Doll, 2001 BCSC 891. I adopt what she said, at paras. 55 and 2003 BCSC 926 (CanLII) 63, and apply it to my review of Arbitrator Gilbert's factual conclusion that the presence of marihuana smoke unreasonably interfered with the enjoyment of other tenants: 55 In determining the standard of review on substantive issues, the Supreme Court of Canada requires courts to take a "pragmatic and functional approach": (Citations omitted.) Standards of review appear on a spectrum ranging from least deferential (correctness) to more deferential (reasonableness simpliciter, which I will call "simple reasonableness") to most deferential (patent unreasonableness). To determine the appropriate standard of review, the court is to take into account a number of factors: (1) the existence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal, in particular in relation to the expertise of the court; (3) the purpose of the statute and of the particular provision; and (4) the nature of the problem, be it a question of law, fact, or mixed law and fact: (Citations omitted.) ... 63 Applying the four factors the Supreme Court has identified in Baker and Pushpanathan, I note the following. First, there is a "finality" clause, though not a "full" privative clause. Section 57(3) of the Act states that "Except as otherwise provided in this Act, a decision or order of an arbitrator is final and binding on the parties". Second, given
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Young v. Saanich Police Department, 2003 BCSC 926 (CanLII).

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