Barrister and Solicitor
Legal Writing and Research
Appeals - Grounds - Inadequate Reasons
Judgments - Inadequate Reasons
Dovbush v. Mouzitchka (Ont CA, 2016)
In this Court of Appeal case the court expounded usefully on the issue of sufficiency of reasons for judgment:
The Insufficiency of Reasons
 While the trial judge expressed conclusions and made findings that may or may not have been open to him on the record, we reluctantly conclude that his reasons are insufficient to permit meaningful appellate review and that appellate intervention is warranted in the circumstances.
The Applicable Principles
 Trial judges are called upon to make difficult decisions, often in difficult circumstances. They preside as the particular dynamics of the trial unfold. Inadequate reasons therefore pose a particular challenge for appellate review.
 On the one hand, as Rothstein J. noted in F.H. v. McDougall, 2008 SCC 53 (CanLII),  3 S.C.R. 41, at para. 99, “an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is the failure to give adequate reasons a free standing basis for appeal.” On the other hand, beginning with the companion cases of R. v. Sheppard, 2002 SCC 26 (CanLII),  1 S.C.R. 869, and R. v. Braich, 2002 SCC 27 (CanLII),  1 S.C.R. 903, Canadian jurisprudence has confirmed the importance of trial judges providing adequate reasons for their decisions, and accepted that if the insufficiency of the reasons prevents meaningful appellate review, appellate intervention may be justified: see also R. v. R.E.M., 2008 SCC 51 (CanLII),  3 S.C.R. 3, at paras. 10-35.
 Although originally developed in the criminal law context, the same rationale that underpins the duty to provide adequate reasons applies in the civil context as well, with necessary modifications: Canadian Broadcasting Pension Plan v. BF Realty Holdings Ltd. (2002), 2002 CanLII 44954 (ON CA), 160 O.A.C. 72 (C.A.), at paras. 64 and 114; Diamond Auto Collision Inc. v. The Economical Insurance Group, 2007 ONCA 487 (CanLII), 227 O.A.C. 51, at paras. 10-14; and Longo v. MacLaren Art Centre, 2014 ONCA 526 (CanLII), 323 O.A.C. 246, at paras. 62-64. The rationale is that reasons are necessary (i) to justify and explain the result; (ii) to tell the losing party why he or she lost; (iii) to provide public accountability and satisfy the public that justice has been done and is seen to have been done; and (iv), to permit effective appellate review: F.H. v. McDougall, at para. 98.
 What makes reasons run afoul of this rationale? In the end, for purposes of appellate intervention, it turns on the overarching principle of whether the reasons permit meaningful and effective appellate review. Appellate courts will take a contextual and functional approach to addressing whether reasons meet this standard. The exercise has been variously described as one of determining whether the reasons demonstrate: “the path taken by the trial judge through confused or conflicting evidence” (Sheppard, at para. 46); or that “the trial judge came to grips with the issues and explained sufficiently his … conclusions and the reasons and basis for them” (Canadian Broadcasting Corporation Pension Plan, at para. 114); or, the “what” and the “why” of the result (R.E.M., at paras. 17-20).
 In R.E.M., at paras. 17-18, the Supreme Court of Canada adopted the reasoning of Doherty J.A. in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), with respect to the object of a trial judge’s reasons. The Court said:
Doherty J.A. in Morrissey, at p. 525, puts it this way: "In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision" (emphasis added). What is required is a logical connection between the "what" - the verdict - and the "why" - the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded. In R.E.M. as well, at para. 29, the Court underlined its earlier comment in Sheppard, at para. 55, emphasizing the importance of the need for adequate reasons when “a trial judge is called upon to address troublesome principles of unsettled law or to resolve confused and contradictory evidence on a key issue” (emphasis added).
Explaining the "why" and its logical link to the "what" does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict. Doherty J.A. in Morrissey, at p. 525, states:
A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. [Emphasis added.]
 Generic boiler-plate findings of credibility of that nature are not helpful. A trial judge owes the losing party an explanation for rejecting the evidence of a key witness or witnesses (particularly when the key witnesses are, themselves, the losing parties), and, while the absence of such an explanation is not necessarily dispositive, it may go a long way toward putting the reasons beyond the reach of meaningful appellate review: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37 (C.A.), at para. 36, citing R. v. Maharaj (2004), 2004 CanLII 39045 (ON CA), 186 C.C.C. (3d) 247, at paras. 26-29 (Ont. C.A.), leave to appeal to S.C.C. refused,  S.C.C.A. No. 340.