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Appeal and Judicial Review - Reasons - Adequate Reasons Discussed (1)

. Park v. Royal College of Dental Surgeons of Ontario

In Park v. Royal College of Dental Surgeons of Ontario (Div Ct, 2021) the Divisional Court set out some doctrine on reasons for decision:

[38] In R. v. R.E.M., 2008 SCC 5, at para. 15, the Supreme Court of Canada explained that courts should take a functional approach to assessing the sufficiency of reasons: “reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review”. At para. 17, the Court held that the “foundation” of the 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”.

[39] In Mitelman, at paras. 29-31, this Court addressed a similar argument regarding the sufficiency of reasons in the context of a penalty decision. In that case, at para. 30, the Court held that “[i]f the reasons state their conclusions in brief compass and these conclusions are supported by the evidence, the decision will not be overturned merely because it fails to discuss every aspect or issue relevant to the case”.

. R. v. Glasner

In R. v. Glasner (Ont CA, 2021) the Court of Appeal set out that reasons must be adequate to allow appellate review:

[11] This is, as it should be, a difficult ground for an appellant to establish. The test for establishing it was articulated by McLachlin C.J. in R. v. R.E.M., 2008 SCC 51, at para. 55:

The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveal the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial.

. Dovbush v. Mouzitchka

In Dovbush v. Mouzitchka (Ont CA, 2016) this Court of Appeal case the court expounded usefully on the issue of sufficiency of reasons for judgment:

The Insufficiency of Reasons

[19] 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

[20] 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.

[21] On the one hand, as Rothstein J. noted in F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] 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), [2002] 1 S.C.R. 869, and R. v. Braich, 2002 SCC 27 (CanLII), [2002] 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), [2008] 3 S.C.R. 3, at paras. 10-35.

[22] 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.

[23] 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).

[24] 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.

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.]

[25] 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).

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[29] 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, [2004] S.C.C.A. No. 340.

. Barbieri v. Mastronardi

In Barbieri v. Mastronardi (Ont CA, 2014) the Court of Appeal addressed the extent and nature of detail required of a judicial decision-maker when issuing reasons for judgment, though the principles expressed might be applicable to quasi-judicial tribunal decisions as well:

[22] In order to allow for meaningful appellant review, the decision of the court must, at a minimum, provide some insight into how the legal conclusion was reached and what facts were relied upon in reaching that conclusion: R. v. Sheppard, 2002 SCC 26 (CanLII), 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24, 55; and Crudo Creative Inc. v. Marin 2007 CanLII 60834 (ON SCDC), (2007), 90 O.R. (3d) 213 (Div. Ct.).

. National Gallery of Canada v. Lafleur de la Capitale Inc.

In National Gallery of Canada v. Lafleur de la Capitale Inc. (Ont CA, 2017) the Court of Appeal sets out principles applicable to the adequacy of judicial reasons:

[11] It is well-established that a judge is required to give reasons sufficient to permit meaningful appellate review of the correctness of the decision. This means that the judge’s reasons must allow the parties and the appellate court to discern why the judge reached his or her conclusions on key issues in circumstances which require an explanation: R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, at paras. 28 and 46.

[12] The critical question is whether what the judge has stated is sufficiently intelligible in the context of the record, the issues and the submissions of counsel, to show that the judge has seized the substance of the matter and has addressed the critical issues that he was required to decided: R. v. M. (R.E.), 2008 SCC 51 (CanLII), [2008] 3 S.C.R. 3, at paras. 37, 43 and 57.

. R v Powell

In R v Powell (Ont CA, 2021) the Court of Appeal set out principles dealing with adequacy of reasons:

[54] An appeal based on insufficient reasons can only succeed if the appellants establish that the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: R. v. Vlaski, 2019 ONCA 927, at para. 9, leave to appeal refused, [2020] S.C.C.A. No. 78; R. v. Vuradin 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10.

[55] Appellate courts considering the sufficiency of reasons “should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16. These purposes “are fulfilled if the reasons, read in context, show why the judge decided as he or she did”: R.E.M., at para. 17.

[56] The key question is whether the reasons demonstrate that the trial judge seized upon the substance of the critical issues at trial in a way that permits meaningful appellate review: R.E.M., at para. 55.

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[59] The trial judge’s reasons are not deficient simply because he did not identify the precise actions of each appellant in the assault. It is clear when his decision is read as a whole that he accepted testimony that the appellants participated in a group assault in which everyone was punching and kicking Quinn. A trial judge is not held to a standard of perfection: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55. The trial judge need not detail their findings on each piece of evidence, so long as the findings linking the evidence to the verdict can be logically discerned: R.E.M, at paras. 16-29 and 43.

. Champoux v. Jefremova

In Champoux v. Jefremova (Ont CA, 2021) the Court of Appeal considered the standard for reasons for decision:

[18] The law regarding insufficient reasons is well established. Reasons serve many functions, they: (i) justify and explain the result; (ii) tell the losing party why they lost; (iii) provide public accountability and satisfy the public that justice has been done and is seen to have been done; and (iv), permit effective appellate review: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 98. Meaningful appellate review is precluded if the decision of the court below does not provide some insight into how the legal conclusion was reached and what facts were relied on in reaching that conclusion: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 63.

[19] When reasons do not fulfill one or more of their functions, it may be necessary for the appellate court to send the matter back to the court below for a new hearing. This is hardly a desirable result, given the wasted costs of the first hearing and the delay in having the case determined on the merits. Yet sometimes, this rather drastic result is necessary to protect the judicial system’s integrity.

[20] As this court observed in Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), 2019 ONCA 293, 34 C.P.C. (8th) 144, at para. 93, leave to appeal refused, [2019] S.C.C.A. No. 228, the insufficient reasons ground of appeal appears with such frequency in this court that it is fast becoming a boilerplate ground of appeal. The court cautioned that the ground of appeal was being asserted in cases where there was no reasonable basis for arguing that the reasons for decision of the court below were anything other than straightforward. This is not such a case. Instead, this is a situation where the parties and the court are left to speculate on how the trial judge reached his conclusion on critical issues.

. Feinstein v. Freedman

In Feinstein v. Freedman (Div Ct, 2021) the Divisional Court states principles relating to adequate reasons for decision:

[46] A trial judge’s reasons for decision serve three main functions: to explain why the decision was made, to provide accountability, and to permit appellate review: R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51, at para. 11. The ability of the reasons to fulfill this last function is the yardstick against which their adequacy is measured. As Binnie J. succinctly put it on behalf of the Supreme Court of Canada in Sheppard (para. 28):

The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.

[47] Although R.E.M. and Sheppard were criminal cases, the principles expressed in those case apply equally to civil cases such as this one: D.M. Drugs Ltd. v. Barry Edward Bywater (Parkview Hotel), 2013 ONCA 356, at para. 35; Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231, 2015 ONCA 520, at para. 13.

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[49] I start by acknowledging why the appellants might question the adequacy of the trial judge’s reasons in this case. The trial lasted eleven days. The trial judge reserved his decision for more than seven months, and then delivered only five pages of typewritten reasons with handwritten corrections. However, the adequacy of reasons is not measured by word count, nor are the reasons required to stand on their own. In R.E.M., the Supreme Court pointed out that reasons for decision must be read in the context in which they were delivered (para. 16):

It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A.), at p. 524).