View cases - Stewart McKelvey

Page: 14lacks expertise. The third factor, the intention of the statute as a whole, also does notapply to private tribunals. While analogies to each of these factors can undoubtedlybe found when the Court is asked to adjudicate on the activities of a private tribunal,the absence of any public dimension to those activities undermines the raison d’etreof the Pushpanathan test.[33] The Court in that case noted that the Chambers judge had found that the partieshad submitted their dispute to arbitration and that the Court should be reluctant tointervene in such circumstances. The court concluded at 29:2010 NSSC 252 (CanLII)..............We agree with the Appellant that once this finding was made, the chambersjudge was bound to apply the provisions of the Arbitration Act. We see nojurisdictional distinction between the two applications for judicial review. Instead oflimiting his review to the provisions of the Arbitration Act, the chambers judgeapplied an administrative law analysis in the second judicial review to the ArbitrationPanel’s decision. This was an error of law: the Court cannot modify the language ofthe Act to add grounds of review beyond those permitted in s. 37.[34] In Alaimo v. Di Maio, supra, the Court addressed the issue of whether judicialreview is available in respect of a consensual arbitrator’s decision and stated at 61 -65:The parties agreed to the appointment of the Arbitrator......They agreed to a privatedispute resolution mechanism, through the use of the Arbitrator, to resolve anyongoing issues that developed with respect to the manner in which the electionproceeded. The authority of the Arbitrator flowed from their private agreement andnot from any delegation of a statutory or public power.In my opinion, judicial review is not available where an arbitrator is proceeding onthe basis of a private agreement and is not exercising a statutory power of decision,as was the case in this instance.