Appeal-Judicial Review - Reasons - Adequate Reasons Discussed (2). Sandhu v. Singh and Sikh Heritage Centre
In Sandhu v. Singh and Sikh Heritage Centre (Div Ct, 2022) the Divisional Court considered the extent to which a judge must canvass issues of law in their reasons:
 Finally, that the Application Judge did not refer to all the matters raised by the appellant does not mean that he failed to take them into consideration to the extent that he considered these issues to be relevant: Papp v. Stokes, 2018 ONSC 1598 at para. 28 (Div. Ct.) There was no need for the Application Judge to discuss each element of a legal test for various causes of action that could not be satisfied given his findings. Failing to do so does not constitute an error of law. There is no need for a trial, motion or application judge to respond to every argument raised by the parties, to recite all the evidence or to articulate all the relevant inferences or principles of law: Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 544 at para. 354.. Durkacz v. FSD Pharma Inc.
In Durkacz v. FSD Pharma Inc. (Div Ct, 2021) the Divisional Court considered the adequacy of reasons below:
 Reasons serve three purposes:. Gholami v. The Hospital of Sick Children
As explained in R.E.M., a trial judge’s reasons serve three main functions — to explain the decision to the parties, to provide public accountability and to permit effective appellate review. These functions are fulfilled if the reasons for judgment explain the basis for the decision reached. The question is not whether a different verdict could have been reached on the evidence. The absence of a specific finding in respect of any particular alleged wrong (in this case impropriety in the issuance of the shares to the directors) in the reason provided is not the test on which this, or any appeal, should be determined:
(R. v. H.S.B. 2008 SCC at para. 8)
However, an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is a failure to give adequate reasons a free standing basis for appeal. At para. 20 of Walker, Binnie J. states: The paragraph goes on to explain what is required for reasons to be sufficient:
Equally, however, Sheppard holds that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself” (para. 26).
Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue. . . . The duty to give reasons “should be given a functional and purposeful interpretation” and the failure to live up to the duty does not provide “a free-standing right of appeal” or “in itself confe[r] entitlement to appellate intervention” (para. 53) Not every step in the progress to resolution needs to be explained for reasons to be sufficient:
(F.H. v. McDougall, 2008 SCC 53 at para. 99 quoting R. v. Walker, 2008 SCC 34 at para. 20)
Nor is the question whether the reasons detail every step of the reasoning process or refer to every piece of evidence or argument led by counsel. The task for the appellate court is simply to ensure that, read in the context of the entire record, the trial judge’s reasons demonstrate that he or she was alive to and resolved the central issues before the court.
(R. v. H.S.B.. 2008 SCC at para. 8)
In Gholami v. The Hospital of Sick Children (Ont CA, 2018) the Court of Appeal canvasses some themes useful to deciding when reasons for decision are adequate:
 This brings us to the next issue. The appellant alleges that the reasons of the trial judge are devoid of a meaningful explanation for her findings of fact and that they prevent proper appellate review. In particular, the appellant contends that the trial judge failed to provide adequate reasons with respect to issues of credibility.. G & P Procleaners and General Contractors Inc. v. Gore Mutual Insurance Company
 Appellate intervention may be warranted where the insufficiency of trial reasons prevents meaningful appellate review. Reasons that permit meaningful appellate review justify and explain the result, inform the losing party why he lost, enable informed consideration as to whether to appeal and enable the public to determine whether justice has been done: R. v. Sheppard, 2002 SCC 26 (CanLII),  1 S.C.R. 869, at para. 24; Diamond Auto Collision Inc. v. The Economical Insurance Group, 2007 ONCA 487 (CanLII), 227 O.A.C. 51, at para. 11; Dovbush v. Mouzitchka, 2016 ONCA 381 (CanLII), 131 O.R. (3d) 474, at paras. 21-22; see also R. v. R.E.M., 2008 SCC 51 (CanLII),  3 S.C.R. 3, at paras. 10-35. Appellate courts take a contextual and functional approach to determining whether reasons permit meaningful and effective appellate review.
 Even if the reasons of the trial judge do not on their face reveal "what" was decided and "why" it was decided, this court is obliged to consider the trial record to determine if the reasons are more comprehensible when read in that context: Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231, 2015 ONCA 520 (CanLII), 389 D.L.R. (4th) 711, at paras. 30-32. This is desirable as it eliminates the expense and delay associated with another trial.
 It is well-established that a trial judge is not required to reconcile or refer to every discrepancy in the evidence. A particular challenge arises when credibility findings are required but not made, or if no analysis for the rejection of important conflicting evidence is provided. Where a case turns largely on a determination of credibility, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error: R. v. Dinardo, 2008 SCC 24 (CanLII),  1 S.C.R. 788, at para. 26 and Dovbush, at paras. 28-29.
 We agree that the trial judge failed to explain her findings and conclusions on the issues of bad faith and defamation. She simply recited the respondents’ legal position and indicated that she agreed with it. She did not resolve the conflicting evidence between the appellant’s and respondents’ diametrically opposed versions of events. Nor can we determine the basis for the trial judge’s credibility findings that were central to the determination of that dispute.
In G & P Procleaners and General Contractors Inc. v. Gore Mutual Insurance Company (Ont CA, 2017) the Court of Appeal briefly sets out the functions of reasons for judgment:
 The appellant submits that the reasons of the motion judge are insufficient to permit appellate review.. Ontario College of Teachers v. Bouragba
 Reasons serve four functions: (i) to justify and explain the result; (ii) to tell the losing party why they lost; (iii) to provide for informed consideration of the grounds of the appeal; and (iv) to satisfy the public that justice has been done: R. v. Sheppard, 2002 SCC 26 (CanLII),  1 S.C.R. 869, at para. 24; and F.H. v. McDougall, 2008 SCC 53 (CanLII),  3 S.C.R. 41, at para. 98.
 The alleged inadequacy of reasons is not a freestanding ground of appeal: R. v. Walker, 2008 SCC 34 (CanLII),  2 S.C.R. 245, at para. 20; and F.H., at para. 99.
 In the present case, the reasons were very brief. However, they were written in a manner such that the motion judge’s chain of reasoning is readily apparent. It is clear from the reasoning that the motion judge dealt with all of the relevant issues raised on the motion. In my view, the reasons fulfill all of the functions articulated by the Supreme Court of Canada in Sheppard. I would, therefore, not give effect to this ground of appeal.
In Ontario College of Teachers v. Bouragba (Ont CA, 2020) the Court of Appeal discussed some descriptions of what constituted adequate reasons:
 The appellant’s criticisms of the adequacy of the motion judge’s reasons are understandable. Most importantly, the reasons glossed over the appellant’s arguments. In R. v. Walker,  2 S.C.R. 245, 2008 SCC 34, Binnie J. stated, at para 20: "Reasons are sufficient if they are responsive to the case's live issues and the parties' key arguments.” He noted that: “Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue.". R v E.B.
 As McLachlin C.J. stated in R. v. R.E.M., 2008 SCC 51 (CanLII),  3 S.C.R. 3 at para. 64, “a trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial.” The purposes for good reasons were set out by L’Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC),  2 S.C.R. 817, at para. 39:
Reasons… foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review: …Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given (internal citations omitted).See generally R. v. Sheppard, 2002 SCC 26,  1 S.C.R. 869, per Binnie J., at para. 55; and Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158 (CanLII), 2010 F.C.A. 158,  4 F.C.R. 425, per Stratas J.A., at para. 16. See also Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670; 98 O.R. (3d) 210.
In R v E.B. (Ont CA, 2021) the Court of Appeal reviewed the adequacy of reasons for decision:
(1) Did the trial judge err by failing to provide adequate reasons?. Bruno v. Dacosta
 The failure of a trial judge to give adequate reasons, in the sense of reasons that permit appellate review, is an error of law. However, “[i]f deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify [appellate] intervention”: R. v. Sheppard, 2002 SCC 26,  1 S.C.R. 869, at paras. 25, 28.
 The assessment of the adequacy of reasons is thus concerned with whether the reasons explain what was decided and why, not with the substantive correctness of the explanation provided. The requirement for adequate reasons is not an invitation for an appellate court to substitute its perceptions of what factual and credibility findings should have been made, nor does it provide a remedy for a party who, from the reasons, knows why the verdict was reached but is in “informed disagreement with the trial judge”: see R. v. Gagnon, 2006 SCC 17,  1 S.C.R. 621, at para. 23; R. v. Braich, 2002 SCC 27,  1 SCR 903, at para. 21.
 Where a case turns on credibility, the reasons must show that the trial judge has “seized the substance of the issue” – whether the accused’s evidence, in the context of the evidence as a whole, left the judge with a reasonable doubt as to the accused’s guilt. The degree of detail that the trial judge is required to use when explaining their credibility findings in support of this ultimate question depends on the nature of the case and may vary with the evidentiary record: R. v. R.E.M., 2008 SCC 51,  3 S.C.R. 3, at paras. 31, 50, and 51; R. v. Dinardo, 2008 SCC 24,  1 S.C.R. 788, at paras. 23, 30. The fact that a trial judge’s reasons are “ambiguous” or “imperfect” is not sufficient to justify appellate intervention: R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, at paras. 76-79.
 The adequacy of the reasons must also be assessed in light of whether they convict or acquit. In Walker, at para. 2, Binnie J. explained:
[W]hile the trial judge's duty to give reasons applies generally to acquittals as much as to convictions, the content of the reasons necessary to give full effect to the right of appeal is governed by the different issues to which the reasons are directed on an acquittal (perhaps no more than the basis of a reasonable doubt) and a conviction (factual findings showing the pathway to conviction, explaining why significant elements of the evidence are accepted, rejected or fail to raise a reasonable doubt). Caution must be taken to avoid seizing on perceived deficiencies in a trial judge's reasons for acquittal to create a ground of "unreasonable acquittal" which is not open to the court under the provisions of the [Code].
In Bruno v. Dacosta (Ont CA, 2020) the Court of Appeal considered the interesting case of an inmate suing the province for negligence (and other defendants) for an assault suffering at the hands of other inmates. The main appeal finding was with respect to the adequacy of the reasons given at trial (and from para 20, the extent to which an appeal court may salvage inadequate reasons):
(1) The Governing Principles on the Sufficiency of Trial Reasons. Bose v. Bangiya Parishad Toronto
 The Supreme Court explored the functional purposes for good reasons in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC),  2 S.C.R. 817, at para. 39, per L’Heureux-Dubé J.:
Reasons … foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review: … Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given. [Emphasis added; citations omitted.]See also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 79-81.
 Beginning with the Supreme Court’s decision in R. v. Sheppard, 2002 SCC 26,  1 S.C.R. 869 and most recently in Vavilov, there has been a continuing judicial conversation about the duty of judges and tribunals to give reasons that properly explain a decision. The cases speak about accountability, intelligibility, adequacy, and transparency. In Vavilov, the court invoked the need to “develop and strengthen a culture of justification”: at paras. 2, 14, 79 and 99; see also Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158,  4 F.C.R. 425, at para. 16, considering a decision of the Canada Industrial Labour Board, per Stratas J.A. I do not see this project of justification, which originated in several seminal criminal law decisions, as limited to administrative law: Vavilov, at paras. 79-80.
 In Sheppard, the court noted at para. 55 that “[t]he delivery of reasoned decisions is inherent in the judge’s role [and] is part of his or her accountability for the discharge of the responsibilities of the office.” The court continued, at para. 55:
The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision. [Emphasis added.] A meaningful right of appeal “must not be an illusory right”: R. v. Richardson (1992), 1992 CanLII 7710 (ON CA), 9 O.R. (3d) 194 (C.A.),  O.J. No. 1498, at para. 13.
 In R. v. R.E.M., 2008 SCC 51,  3 S.C.R. 3, McLachlin C.J. focussed on intelligibility, stating at para. 35 that “[t]he basis for the trial judge’s verdict must be ‘intelligible,’ or capable of being made out.” She was referring to the trial judge’s duty to lay out the chain of reasoning, in which “a logical connection between the verdict and the basis for the verdict must be apparent.” She explained, at para. 35, that in discerning whether there is such a logical connection, “one looks to the evidence, the submissions of counsel and the history of the trial to determine the ‘live’ issues as they emerged during the trial.” In that task of discernment, the appellate court reads the reasons “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 also Vavilov, at para. 85.
 Drilling down to the practical elements, in order to provide for a meaningful right of appeal, trial judges must identify the key issues; find the facts relevant to the issues; assess credibility and reliability where there is conflict; set out the chain of reasoning; make the decision; and then write the reasons to clearly communicate the decision: Welton v. United Lands Corp., 2020 ONCA 322, at paras. 57 and 58. Appellate courts rely on trial judges to find the facts and to assess credibility and reliability where there are live witnesses, as in this case. Appellate courts recognize that trial judges attend to these tasks from a privileged vantage point.
 But the principles governing the sufficiency of the reasons of trial judges do give rise to a difficult issue: To what extent should appellate courts work to salvage inadequately explained or conclusory trial reasons?
In Bose v. Bangiya Parishad Toronto (Div Ct, 2021) the Divisional Court considers the standard for adequacy of reasons:
Were the Application Judge’s Reasons Inadequate?
 In Tarko et al v. Metropolitan Condominium Corporation 626 et al, 2015 ONSC 982, Marrocco A.C.J.S.C. dealt with the issue of adequacy of reasons. In that decision he cited R. v. Sheppard, 2002 SCC 26,  1 S.C.R. 869, where at para. 42, the Supreme Court quotes with approval the following statement by Major J. in R. v. R.(D.), 1996 CanLII 207 (SCC),  2 S.C.R. 291:
[W]here the reasons demonstrate that the trial judge has considered the important issues in a case, or where the record clearly reveals the trial judge’s reasons, or where the evidence is such that no reasons are necessary, appellate courts will not interfere. In addition, it is trite law that the reasons of a decision maker must be capable of meaningful appellate review (see Sheppard at para. 46).