Rarotonga, 2010

Simon's Megalomaniacal Legal Resources


ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

home / about / Democracy, Law and Duty / testimonials / Conditions of Use

Civil and Administrative
Litigation Opinions
for Self-Reppers

Simon's Favourite Charity -
Little Friends Lefkada (Greece)
Cat and Dog Rescue


Appeal-Judicial Review - Reasons - Adequate Reasons Discussed (3)

. 2264052 Ontario Inc. (Louch & Louch) v. Brockville Centre Development Corp.

In 2264052 Ontario Inc. (Louch & Louch) v. Brockville Centre Development Corp. (Ont CA, 2022) the Court of Appeal considered lack of analysis in applying causes of action:
[33] In a similar vein, the trial judge found that a civil conspiracy was engaged in by the appellants. He cited the decision of Wawrzkiewicz v. Integrated Distribution Systems Limited Partnership, 2017 ONSC 1664, as setting out the factors for such a finding. However, the trial judge never engages in any analysis of those factors. He does not identify the agreement between two or more defendants that is necessary, nor does he identify what means (other than the flooding which I will address shortly) were used to injure the respondents. Rather, after citing the decision, the trial judge simply finds that the appellants “committed civil conspiracy in their wrongful actions towards Mr. Louch and Louch and Louch.”


[37] The trial judge also refers to a number of additional causes of action including intentional infliction of economic harm and breach of a duty of care. Once again, there is no analysis of the component parts of these causes of actions and how the evidence would sustain any finding in relation to them. For example, there is no analysis of the nature of the duty of care found by the trial judge, how it arose between the parties, or the particulars of its breach.
. British Columbia (Milk Board) v. Grisnich

In British Columbia (Milk Board) v. Grisnich (SCC, 1995) the Supreme Court of Canada held that when an administrative decision-maker issues a ruling, it need not specify the statutory authority for it's jurisdiction in it's reasons:
[5] The concern of the judiciary revolves around ensuring that administrative tribunals of whatever kind act pursuant to their jurisdiction. There is no requirement that, in the exercise of that jurisdiction, any specification must be made as to its exact source. Naturally, should that jurisdiction be challenged, the administrative tribunal must not only point to but also support its source. However, this is quite another matter from requiring that every administrative order contain, a priori, such a specification. I add that, when an administrative agency has chosen to furnish such information a priori, this is purely done as a matter of convenience to the public, and not because of a mandatory legal requirement. The extent of this convenience is a matter for the legislature, not the judiciary, to decide. Similarly, when there are multiple sources of power, it is irrelevant which power a board exercises once it is determined that the board had the power from one source or another: Milk Board v. Clearview Dairy Farm Inc., 1987 CanLII 2725 (BC CA), [1987] 4 W.W.R. 279 (B.C.C.A.); Milk Board v. Birchwood Dairy Farm Ltd., 1986 CanLII 1008 (BC CA), [1986] 3 W.W.R. 481 (B.C.C.A.).


[19] It is my view that the Court of Appeal's position on the need for administrative specification must be rejected. There is no precedent for holding that an administrative body must consciously identify the source of power it is relying on, in order for the exercise of that power to be valid. Traditionally, the primary question in reviewing the validity of subordinate legislation has been whether the delegate has authority under the empowering statute to make the impugned enactment. Any regulation, rule or order must be consistent with the purposes of the empowering statute, and cannot be designed to achieve some collateral purpose, extraneous to the statute's objectives. Provided that the subordinate legislation is within the bounds or "sphere" of statutory authority, it will be valid, and will not be reviewable on its merits.

[20] There is little room in this traditional analysis for considering the mindset of the delegate itself, and I see no basis for interfering with the established approach. Courts are primarily concerned with whether a statutory power exists, not with whether the delegate knew how to locate it; see J. M. Keyes, Executive Legislation: Delegated Law Making by the Executive Branch (1992), at p. 138. Indeed it is well accepted that a delegate can be wrong in identifying its own jurisdiction. The mistaken identification by a delegate of a source of authority later found by the courts to be invalid will not help to support an unlawful administrative order or decision. If the specification of authority cannot assist an administrative tribunal in justifying its otherwise invalid enactments, why should the lack of specification compromise those enactments that would otherwise be valid?
More recently this point was stated in the Federal Court of Appeal in Canada (Attorney General) v. Lloyd, 2022 FCA 127 (CanLII), para 49.

. R. v. A.K.

In R. v. A.K. (Ont CA, 2022) the Court of Appeal considers adequacy of reasons for decision:
[36] In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 42, Binnie J. reiterated that “deficiency in reasons, by itself, is not a stand-alone ground of appeal.” As Karakatsanis J. explained in R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 68, there will not be a reversible error if the reasons are “sufficient in the context of the case for which they were given.” This test calls for a functional and contextual reading of a trial judge's reasons: G.F., at para. 69.

[37] My task is not to finely parse the trial judge's reasons in a search for error, but rather to “assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review”: G.F., at para. 69. In this analysis, the trial judge’s reasons are to be evaluated from a stance of deference.

[38] As McLachlin C.J., as she then was, stated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 17, "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." Appellate inquiry should be directed at whether the reasons respond to the live issues in a case: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31.

[39] In assessing the sufficiency of the trial judge’s reasons, it is important to review the record. If the trial reasons do not explain the “what” and the “why” but the answers to those questions are clear in the record, there will be no error: G.F., at para. 70, citing R.E.M., at paras. 38-40, and Sheppard, at paras. 46 and 55.

[40] The trial judge’s reasons must be both factually and legally sufficient. Factual sufficiency is concerned with what the trial judge decided and why – ordinarily a very low bar, especially with the ability to review the record: G.F., at para. 71, citing Sheppard, at para. 55. Even if the trial judge expressed themselves poorly, factual sufficiency is established if the appellate court understands the “what” and the “why” from the record: G.F., at para. 71, citing Sheppard, at para. 52. It will be “very rare” where neither the aggrieved party nor the appellate court understands the factual basis of the trial judge’s findings: G.F., at para. 71, citing Sheppard, at paras. 50 and 52.

[41] Legal sufficiency is concerned with the aggrieved party’s ability to meaningfully exercise their right of appeal: G.F., at para. 74, citing Sheppard, at paras. 64-66. As Karakatsanis J. explained in G.F., “Lawyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred”: at para. 74, citing Sheppard, at paras. 46 and 55. This will be “highly context specific” and require an assessment in light of the live issues at trial: G.F., at para. 74. Keeping in mind the presumption of correct application, there is no obligation on the trial judge “to expound on features of criminal law that are not controversial in the case before them”: G.F., at para. 74.
. R. v. Charron

In R. v. Charron (Ont CA, 2022) the Court of Appeal considers the role of a case's context in determining the adequacy of reasons:
[27] The appellant bears the burden of showing that the reasons are not only deficient, but also that the deficiency precludes meaningful appellate review. The sufficiency of reasons is assessed using a functional and contextual approach. The judge’s reasons must be read as a whole and in the full context of how the trial unfolded. Context is critical. The content and the level of detail required for the judge’s reasons to perform their function will differ from case to case: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, paras. 24-26, 33 and 55, and R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, paras. 13, 15-17, 35, 37, 41 and 44.
. R. v. Scott

In R. v. Scott (Ont CA, 2022) the Court of Appeal considered the law of adequate reasons in this criminal case:
[27] A trial judge’s reasons must provide an apparent “logical connection between the verdict and the basis for the verdict,” and a basis for meaningful appellate review of the correctness of the trial judge’s decision: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 35; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20.

[28] The degree of detail required of the reasons varies with the circumstances. Less detailed reasons may be needed where the basis of the trial judge’s decision is apparent from the record. More detail may be required where the trial judge is called upon “to resolve confused and contradictory evidence on a key issue”: R.E.M. at para. 44 and Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55. A trial judge should always address important conflicting evidence probative of the accused’s state of mind: R. v. Lagace (2003), 2003 CanLII 30886 (ON CA), 181 C.C.C. (3d) 12 (Ont. C.A.), at paras. 34 and 44.


[30] To establish that reasons are insufficient, the appellant must show “not only that there is a deficiency in the reasons, but that the deficiency caused prejudice to the exercise of [his] legal right to an appeal in a criminal case”: R. v. Sheppard, at para. 33; R. v. Slatter, 2019 ONCA 807, 148 O.R. (3d) 81, at paras. 108-09, per Pepall J.A. (dissenting), rev’d 2020 SCC 36.


[40] In R. v. Dinardo, 2008 SCC 24, [2008] 1 SCR 788, at para. 32, Charron J. for the court held that:
This Court emphasized in Sheppard that no error will be found where the basis for the trial judge’s conclusion is “apparent from the record, even without being articulated” (para. 55). If the trial judge’s reasons are deficient, the reviewing court must examine the evidence and determine whether the reasons for conviction are, in fact, patent on the record.
. Farej v. Fellows

In Farej v. Fellows (Ont CA, 2022) the Court of Appeal considers, and grants, an inadequate reasons appeal:
[41] Reasons for judgment fully and clearly explaining both the result and the reasons for the result serve several important purposes. Reasons for judgment improve the transparency, accountability and reliability of decision-making, thereby enhancing public confidence in the administration of justice: R. v. Sheppard, 2002 SCC 26, [2002] 1 S. C.R. 869, at para. 5; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 98; R. v. G.F., 2021 SCC 20,459 D.L.R. (4th) 375, at para. 68; Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, [2009] I.L.R. I-4839, at paras. 95-99; Dovbush v. Mouzitchka, 2016 ONCA 381, 131 O.R. (3d) 474, at paras. 20-23.

[42] In the context of the appeal process, however, the focus is not on the overall quality of the reasons given at trial, or the extent to which those reasons serve all of the purposes outlined above. Instead, the focus is on whether the reasons allow the appeal court to engage in a meaningful review of the substantive merits of the decision under appeal. As Binnie J., with his usual clarity, explained in Sheppard, at para. 28:
It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellate review in a meaningful way. The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge’s reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error. Relevant factors in this case are that (i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge’s decision in a satisfactory manner. Other cases, of course, will present different factors. 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. [Emphasis added.]
[43] A submission that trial reasons are legally inadequate does not necessarily attack the sufficiency of the evidence, the reasonableness of the factual findings, or allege legal errors in the trial judge’s analysis. Rather, the submission that reasons are inadequate amounts to a claim that proper substantive review of the trial judge’s reasons is foreclosed by the inadequacy of those reasons. In other words, counsel cannot effectively make arguments about the sufficiency of the evidence, the reasonableness of the fact finding, or alleged errors in law because the reasons of the trial judge do not provide the window into the trial judge’s conclusions and reasoning process necessary to make those arguments.

[44] The appellants have a statutory right of appeal from the dismissal of their action. If the appellants are correct and the reasons do not reveal the factual or legal basis for the trial judge’s conclusions, the appellants are effectively denied the exercise of their statutory right of appeal. That denial amounts to both an error in law and can result in a miscarriage of justice.

[45] There is now a deep jurisprudence addressing the sufficiency of reasons as a ground of appeal. The cases repeatedly make two important points. First, the adequacy of reasons must be determined functionally. Do the reasons permit meaningful appellate review? If so, an argument that the reasons are inadequate fails, despite any shortcomings in the reasons. Second, the determination of the adequacy of the reasons is contextual. Context includes the issues raised at trial, the evidence adduced, and the arguments made before the trial judge. For example, if a review of the evidence and arguments indicates that a certain issue played a minor role at trial, the reasons of the trial judge cannot be said to be inadequate because they reflect the minor role assigned to the issue by the parties at trial: Sheppard, at paras. 33, 42 and 46; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at p. 525; Dovbush, at para. 23.

[46] In G.F., the Supreme Court of Canada recently cautioned against appellate courts reviewing trial judge’s reasons with an overly critical eye, especially in cases turning on credibility assessments: G.F., at paras. 74-76. The majority said, at para. 79:
To succeed on appeal, the appellant’s burden is to demonstrate either error or the frustration of appellate review. Neither are demonstrated by merely pointing to ambiguous aspects of the trial decision. Where all that can be said is a trial judge may or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellate review. Where ambiguities in a trial judge’s reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error. It is only where ambiguities, in the context of the record as a whole, render the path taken by the trial judge unintelligible that appellate review is frustrated. An appeal court must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole and determining whether or not the trial judge erred or appellate review was frustrated. It is not enough to say that a trial judge’s reasons are ambiguous – the appeal court must determine the extent and significance of the ambiguity. [Emphasis added.] [Citations omitted.]
. R. v. Atwima

In R. v. Atwima (Ont CA, 2022) the Court of Appeal considered an adequacy of reasons issue, here though of reasons for an evidence ruling in a criminal case:
[66] Trial judges have an obligation to provide reasons for their decisions. At their core, reasons provide a level of public accountability for all judicial decisions, an accountability that is fundamental to maintaining the rule of law. Reasons serve important purposes, including: justifying the result, explaining to the public how the result was achieved, telling the party that lost why they lost, allowing for informed consideration as to whether an appeal should be taken, and if an appeal is taken, allowing for effective appellate review: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11, 35.

[67] Of course, when it comes to evidentiary rulings, the failure to provide reasons will not always be fatal “provided that the decision is supportable on the evidence or the basis for the decision is apparent from the circumstances”: R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 156, leave to appeal refused, [2017] S.C.C.A. No. 225; R. v. Barrett, 1995 CanLII 129 (SCC), [1995] 1 S.C.R. 752, at para. 1.

[68] Although the standard for reasons in evidentiary rulings is more relaxed, an overarching duty of procedural fairness nevertheless remains. The subject matter of a ruling will necessarily inform the determination of whether procedural fairness requires that more detailed reasons, as opposed to bottom line rulings, be given: Tsekouras, at para. 156. Where an evidentiary ruling is pivotal to one of the parties’ positions, and especially where it carries the weight of that party’s case, the duty of procedural fairness is heightened and there will sometimes be a requirement for reasons that are more akin to those we expect in the context of a judgment: see R. v. Woodard, 2009 MBCA 42, 245 C.C.C. (3d) 552, at para. 25.
. Canada (Citizenship and Immigration) v. Galindo Camayo

In Canada (Citizenship and Immigration) v. Galindo Camayo (Fed CA, 2022) the Federal Court of Appeal considers reasons for decision, Vavilov 'reasonableness' and statutory intent:
V. What makes a Decision Reasonable?

[46] The Supreme Court stated in Vavilov that "“[r]easonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law”": Vavilov SCC, above at para. 82.

[47] Reasonableness review involves both an assessment of the outcome of the case and of the reasoning process leading to that outcome: Vavilov SCC, above at para. 83. The Supreme Court further affirmed that it is not sufficient for the outcome of a decision to be justifiable. Where reasons are required, the decision must also be justified by the decision maker to those to whom the decision applies: Vavilov SCC, above at para. 86.

[48] Vavilov teaches that reasons "“must not be assessed against a standard of perfection”" and that administrative decision makers should not be held to the "“standards of academic logicians”": Vavilov SCC, above at paras. 91, 104. Reviewing courts cannot expect administrative decision makers to "“respond to every argument or line of possible analysis”": Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 25 (Newfoundland Nurses); Vavilov SCC, above at para. 128. Nor are they required to "“make an explicit finding on each constituent element, however subordinate, leading to [their] final conclusion”": Newfoundland Nurses, above at para. 16.

[49] That said, reasons "“are the primary mechanism by which administrative decision makers show that their decisions are reasonable”": Vavilov SCC, above at para. 81. The principles of justification and transparency thus require that administrative decision makers’ reasons "“meaningfully account for the central issues and concerns raised by the parties”": Vavilov SCC, above at para. 127. The failure of a decision maker to "“meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it”": Vavilov SCC, above at para. 128. As a result, "“where reasons are provided but they fail to provide a transparent and intelligible justification ... the decision will be unreasonable”": Vavilov SCC, above at para. 136.

[50] Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention: Vavilov SCC, above at para. 133. The failure to grapple with the consequences of a decision should thus be considered: Vavilov SCC, above at para. 134, citing Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3.


The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.

Last modified: 04-03-24
By: admin