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Appeal-Judicial Review - Reasons - Adequate Reasons (5)

. R. v. J.F.

In R. v. J.F. (Ont CA, 2024) the Ontario Court of Appeal comments on the adequacy of reasons for decision:
[37] Sufficient reasons provide a logical connection between the verdict and the basis for the verdict. “The foundations of the judge’s decision must be discernible, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 17. The “inadequate reasons” ground of appeal, to be successful, requires the appellant to establish that one or more of the objectives of reasons – to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal – has not been attained: R.E.M., at para. 25.
. Rogerson v. Grey Bruce Regional Health Centre

In Rogerson v. Grey Bruce Regional Health Centre (Ont CA, 2024) the Ontario Court of Appeal considered the interpretation of judicial reasons for decision:
[12] A judge is presumed to be aware of the law. In assessing whether correct legal principles were applied, a judge’s reasons should be afforded a “functional and contextual reading”, taking into account the evidence and the issues at trial and the reasons as a whole: R. v. GF, 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 69, 74.
. Denman v. Radovanovic

In Denman v. Radovanovic (Ont CA, 2024) the Ontario Court of Appeal considers the law of 'insufficiency of reasons':
(b) The law re: insufficiency of reasons

[49] This court recently summarized the principles to apply when assessing the sufficiency of reasons in Levac v. James, 2023 ONCA 73. As has been often repeated, the touchstone is whether the reasons permit meaningful appellate review. Sossin J.A. reviewed how this determination is to be approached, at para. 76:
The adequacy of reasons must be determined functionally based on whether they permit meaningful appellate review. If they do, then an argument that the reasons are inadequate fails, despite any shortcomings. Adequacy is contextual, and includes the issues raised at trial, the evidence adduced, and the arguments made before the trial judge. In general, reasons are to be read as a whole with the presumption that the trial judge knows the record and the law and has considered the parties' arguments. [Citations omitted.]
[50] Appellate courts are “cautioned against ... reviewing [a] trial judge’s reasons with an overly critical eye”: Farej v. Fellows, 2022 ONCA 254, at para. 46, citing R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375.

[51] In this case, the appellants make a number of sweeping criticisms of the trial judge’s reasons, including that she made findings of credibility without sufficient explanation, failed to apply the facts to the law to satisfy the chain of reasoning, failed to explain why she accepted one party’s evidence over another, and neglected to make findings on key pieces of evidence. The appellants are critical that a significant portion of the reasons were copied almost verbatim from the respondents’ written submissions at trial.

[52] As I will explain, I am not satisfied that the reasons fail to permit meaningful appellate review despite some deficiencies, including that they could have been better structured, and that it was not ideal that the trial judge borrowed large portions of the respondents’ submissions.
. Pletch v. Pletch Estate

In Pletch v. Pletch Estate (Div Court, 2024) the Divisional Court spelled out new estate costs doctrine ('blended costs'), here where the lower court held that the intestate "had not made adequate provision to support his children and for payment of his debts" under the SLRA [s.72 - 'Value of certain transactions deemed part of estate'].

Here the court cites doctrine for inadequate reasons:
[33] The failure of a judge to give any or sufficient reasons is an error of law. The Ontario Court of Appeal recently held in Champoux v. Jefremova, 2021 ONCA 92, at para. 18, that reasons are necessary to “(i) justify and explain the result; (ii) tell the losing party why they lost; (iii) provide public accountability and satisfy the public that justice was done and seen to have been done; and (iv) permit effective appellate review”. As the court noted, 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 are relied on in reaching that conclusion”: Champoux, at para. 18, citing Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 63. The failure to give reasons constitutes an error of law and is subject to two considerations: whether in the opinion of the appellate court it precludes meaningful appellate review and where it arises from the circumstances of the case: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 43 and 46.
. National Steel Car Limited v. Independent Electricity System Operator

In National Steel Car Limited v. Independent Electricity System Operator (Ont CA, 2024) the Ontario Court of Appeal dismissed a 'taxation' constitutional challenge to the 'FIT Program', a renewable electricity program under the Green Energy and Green Economy Act, 2009.

Here the court considers the appellant's argument that the lower court's reasons for decision were inadequate:
[58] It is important to note, as well, that an application judge’s reasons should be read as a whole, not held to “some abstract standard of perfection”: R. v. Palmer, 2021 ONCA 348, 174 W.C.B. (2d) 84, at para. 83. Read in their broader context, the application judge’s comments were not imposing a higher standard, but rather indicating that the appellant had to provide clear evidence to show that the primary purpose of the FIT Program was other than the purposes enumerated in the legislation. Read as a whole, the application judge’s reasons disclose that he properly conducted the necessary analysis. His analysis does not betray any higher standard of proof than was required.


(i) General Principles

[60] The appellant relies on statements in Bruno v. Dacosta, 2020 ONCA 602, 69 C.C.L.T. (4th) 171, at para. 18 in support of its argument. That para. states:
[I]n 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. 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. [Citations omitted.]

[61] As noted in that decision at para. 20, this court is reluctant to order a new trial in civil matters. The court must find a real prospect “that a substantial wrong or miscarriage of justice has occurred.” In Farej v. Fellows, 2022 ONCA 254, leave to appeal refused, [2022] S.C.C.A. No. 180, Doherty J.A. described sufficiency of reasons as a ground of appeal noting, at paras. 41-42, that reasons for judgment improve the transparency, accountability, and reliability of decision-making but on review for their sufficiency, the focus is not on their overall quality but on whether they allow the appeal court to engage in a meaningful review of the substantive merits of the decision under appeal. As Doherty J.A. summarized at paras. 45 and 50:
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.


Because the adequacy of trial reasons is assessed functionally and depends on the ability of the appellate court to effectively review the correctness of the decision arrived at by the trial court, the appellate court is entitled to look at the record as a whole when determining the trial judge’s findings and the reasons for those findings are adequately laid out.
[62] In considering this issue, it is important to be reminded of the principles established by the Supreme Court in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. There, Iacobucci J. wrote, at para. 39, that “the failure to discuss a relevant factor in depth, or even at all, is not itself a sufficient basis for an appellate court to reconsider the evidence.” In the same paragraph, Iacobucci J. quoted from Bastarache J. in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 15, in turn paraphrasing Van Mol (Guardian ad litem of) v. Ashmore, 1999 BCCA 6, 168 D.L.R. (4th) 637, leave to appeal refused, [1999] S.C.C.A. No. 117, at para. 13, saying that “an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.” Moreover, an appellate court may presume that the application judge has reviewed all of the record: Housen, at paras. 46, 72.
. R. v. S.P.

In R. v. S.P. (Ont CA, 2024) the Ontario Court of Appeal considered the test for 'insufficient reasons', here in criminal sentencing:
[48] The bar for insufficiency of reasons is high, as explained by the Supreme Court of Canada in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 13:
Finding an error of law due to insufficient reasons requires two stages of analysis: (1) are the reasons inadequate; (2) if so, do they prevent appellate review? … [E]ven if the reasons are objectively inadequate, they sometimes do not prevent appellate review because the basis for the verdict is obvious on the face of the record. But if the reasons are both inadequate and inscrutable, a new trial is required.
[49] I find the trial judge’s reasons are adequate and that they permit appellate review. As I read his reasons, the trial judge was well aware that the complainant was extremely intoxicated. However, he found that the complainant’s testimony about what happened in the bedroom involving sexual acts to be credible, compelling, and consistent. As the trial judge explained, the complainant “vividly described the sequence of events in the bedroom that night involving a number of sexual acts. What was done, how it felt and so on.” Further, he concluded that the absence of DNA on certain of the complainant’s body parts did not undermine her account of a forced penetrative assault. The trial judge believed the complainant and found that the jury must have as well – otherwise, in his view, it could not have convicted. The trial judge stated that there was no path to conviction if the complainant was not believed – in his words, this was “inconceivable”.

[50] It goes without saying this court must apply the functional and contextual approach to review of the trial judge’s findings of credibility and reliability as outlined by the Supreme Court of Canada in R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 82:
[U]nder a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. A trial judge’s determination to accept or believe inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability: [R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639] at para. 16. Often, the term “credibility” is used in this broader sense to mean the believability of the evidence and it necessarily includes both truthfulness and accuracy. [Emphasis added.]
[51] It is clear that the trial judge turned his mind to the relevant factors that went to the believability of the complainant’s evidence. In his words, the complainant’s account was either “fiction” or truth. He found it was the latter, and the reasons for this conclusion are clear on the record.

[52] I acknowledge that some parts of the trial judge’s reasons may be confusing, for example on one occasion he said: “[t]his was not a question of reliability of [the complainant’s] evidence”. But the issue is whether the trial judge, who had the advantage of seeing and hearing from the complainant, made a palpable and overriding error in his conclusion that the incident in the bedroom took place in the manner the complainant described. Our task is not to engage in a forensic examination of lines or words, but to look at the reasons as a whole. In my view, there is no basis to interfere with his findings of fact under s. 724(2). While the trial judge could not speculate about how the jury reached its verdict, he resolved any ambiguity surrounding the basis of its verdict by stating that he believed the complainant. Consequently, there was no error in sentencing the appellant on the basis that a forceful, intrusive sexual assault had occurred involving penetration.

[53] Furthermore, having regard to the aggravating and mitigating factors the sentencing judge identified in his reasons, the three-year sentence imposed by the trial judge is fit and there is no basis for appellate intervention: see R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77.
. Kitmitto v. Ontario (Securities Commission)

In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].

Here the court excuses weak 'reasons for decision' from the tribunal:
[74] While the Tribunal majority did not expressly address Mr. Kitmitto’s alternative suspect defence, a decision maker is not required to expressly address every argument raised by the defending parties. Considered as a whole, the Tribunal majority’s reasons show that they considered the evidence before them and concluded, based on the totality of the record, that it was more likely than not that Kitmitto tipped each of Mr. Vannatta, Mr. Candusso and Mr. Goss.

[75] Reasons are sufficient where, when viewed in their entire context and with deference, they meet the criteria of informing the parties of the basis for the outcome, providing public accountability and permitting meaningful appellate review: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at paras. 25, 37, 55; CAMPP Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4612, 5 M.P.L.R. (6th) 230 (Div. Ct.), at para 57. There is no obligation on a tribunal to mention every piece of evidence or record every argument or aspect of the deliberation process: Quadrexx Hedge Capital Management Ltd. v. Ontario Securities Commission, 2020 ONSC 4392, 151 O.R. (3d) 709 (Div. Ct.), at paras. 120-121; R.E.M., at paras. 64-68: CAMPP, at para. 108, citing Vavilov, at para. 128. The reasons “must, at a minimum, provide some insight into how the legal conclusion was reached and what facts were relied upon in reaching that conclusion”: Quadrexx, at para. 121; see also R.E.M., at paras. 55-56.

[76] The Tribunal majority’s reasons met that threshold. ....
. Penate v. Martoglio

In Penate v. Martoglio (Ont CA, 2024) the Court of Appeal considered the law of 'inadequate reasons', here where a jury was struck:
[1] Civil litigants deserve to know why a trial judge rules against them. To respect this basic entitlement, trial judges must issue reasons explaining their decisions that litigants can understand and the appeal court can review. Providing such reasons respects litigants’ dignity, ensures that they can exercise their right to a meaningful appeal, and makes judicial reasoning transparent and accountable to the public.


[5] I would allow the appeal because the trial judge did not adequately explain her decision to take away the Penates’ right to a jury trial. While the trial judge concluded that the Penates’ counsel made improper comments to the jury that could not be corrected, she neither explained which comments were improper and why, nor why directing the jury to disregard any improper comments would have been insufficient. The trial judge’s inadequate reasons prevent this Court from meaningfully reviewing whether her decision to discharge the jury was proper. Because trial by jury is a fundamental right and I am not convinced that the jury would have inevitably rejected the Penates’ medical malpractice claims as the trial judge did, I would order a new trial.


[21] Adequate reasons are not merely a precondition for deference but are also a basic entitlement of every litigant. As in criminal cases, civil litigants deserve reasons that explain what the trial judge has decided, that can be reasonably understood, and that an appellate court can meaningfully review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55(8); R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69; Bruno v. Dacosta, 2020 ONCA 602, 69 C.C.L.T. (4th) 171, at paras. 15, 22 n.1, citing Canadian Broadcasting Corporation Pension Plan v. BF Realty Holdings (2002), 2002 CanLII 44954 (ON CA), 214 D.L.R. (4th) 121 (Ont. C.A.), at para. 64. Providing adequate reasons also respects the dignity of losing litigants by demonstrating that the trial judge has considered their arguments and taken the time to explain why they lost, thereby increasing the likelihood that losing litigants will feel that they were treated fairly and appropriately: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 11(1); Lawson, at paras. 9, 47; Bruno, at para. 13. Adequate reasons further make judicial reasoning transparent and accountable to the public and allow appellate courts to effectively review decisions: Sheppard, at para. 15; R.E.M., at paras. 11(2), (3). Adequate reasons are especially necessary to justify discretionary decisions that severely impact litigants’ important rights: R. v. Sahdev, 2017 ONCA 900, 356 C.C.C. (3d) 137, at paras. 43-44; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 133.

[22] Conclusory reasons are not adequate. Reasons cannot merely repeat “stock phrases of what a trial judge is expected to do”: R.E.M., at para. 23; see also Lawson, at para. 49. Rather, reasons must explain why trial judges reached the decisions they did by addressing the parties’ key arguments and the key, live issues in the case and making any necessary findings concerning those issues: R.E.M., at paras. 17, 34; Lawson, at paras. 47-48. The Supreme Court of Canada has held that such “responsive reasons” are the “primary mechanism by which decision makers demonstrate that they have actually listened to the parties”: Vavilov, at para. 127 (emphasis in original). Reasons that merely repeat the legal standard and state a bottom-line conclusion are inconsistent with the need for judicial decision-makers to justify their decisions to the parties and the public: Vavilov, at para. 79; Bruno, at para. 14.


(2) The Reasons for Discharging the Jury were Inadequate

[25] The Penates chose to exercise their right to trial by jury and deserved reasons explaining the trial judge’s decision to take away this right that they could reasonably understand and which this Court could meaningfully review. Consistent with the governing two-step test outlined above, those reasons should have explained which comments were prejudicial and why, as well as why a corrective instruction could not remedy any prejudice: St. Marthe, at para. 46. The tragic nature of the brain injury that Norman suffered, the fundamental importance of the Penates’ right to a jury trial, and the discretionary nature of the trial judge’s decision to take away that right, all underscore the importance of providing reasons that explained her decision to the Penates: Sahdev, at paras. 43-44; Vavilov, at para. 133. This is especially so because the trial judge reversed course from her initial statement that a corrective instruction would be adequate and decided to discharge the jury without a request to do so from any party. She was obliged to provide substantial reasons that explained this unilateral reversal of course and why the heavy burden needed to discharge the jury was met: Hunt, at para. 73.

[26] The trial judge did not provide the Penates with the reasons they deserved. Her reasons for discharging the jury neither explained which comments were prejudicial and why, nor why a corrective instruction was an inadequate remedy. These inadequate reasons prevent the Penates from understanding her decision to take away their right to a jury trial and prevent this Court from meaningfully reviewing it. While the respondents argue that this Court should defer to the trial judge’s decision because it is discretionary and subject to a deferential standard of review, those factors do not lower the bar but instead reinforce the need for adequate reasons that the parties can understand and this Court can meaningfully review: Bruno, at para. 30; Sahdev, at paras. 43-44. I would therefore decline to defer to the decision because it is not justified by adequate reasons: Lawson, at paras. 13,44.

[27] First, the trial judge’s statement that the Penates’ closing contained many prejudicial comments is conclusory and merely restates the legal standard for the first step of the two-part test: R.E.M., at para. 23; Lawson, at para. 49. The trial judge was obliged to explain which comments were prejudicial and why she reached that conclusion. She did neither. Her reasons leave this Court to guess at which of the respondents’ 39 objections she believed were prejudicial and why. While she may not have been required to address each of the 39 objections, she should have at a minimum addressed the key objections and made findings concerning them: R.E.M., at paras. 32-34; Lawson, at paras. 47-48.

[28] The trial judge also did not address the Penates’ key arguments concerning prejudice: R.E.M., at para. 34; Lawson, at paras. 47-48. Their counsel argued that his comments in the closing were not inflammatory, had an evidentiary foundation, and did not misstate or mischaracterize the evidence. The trial judge’s bare conclusion that the closing contained many prejudicial comments does not provide responsive reasons demonstrating that she listened to the Penates’ arguments: Vavilov, at para. 127.


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Last modified: 13-07-24
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