Simon's Megalomaniacal Legal Resources

Appeal-Judicial Review - Reasons - Presumption of Consistency With Correct Law and Record

. Frayce v. BMO Investorline Inc.

In Frayce v. BMO Investorline Inc. (Div Court, 2023) the Divisional Court considered the 'reasons' principle that judges are presumed to know and apply the correct law:

[15] The motion judge, an experienced class action judge, was clearly aware of the two-part test for certification. Judges are “presumed to know the law with which they work, day in and day out, and their reasons must be read functionally, contextually and with this presumption in mind” (R. v. CP, 2023 ONCA 70 at para. 7). Keeping this in mind, the motion judge’s reference to “some evidence” is equivalent to the requirement for “some basis in fact”. His use of the term “illegal” is his shorthand for “contravene any applicable Canadian securities law”.

. Kikites v. York Condominium Corporation No. 382

In Kikites v. York Condominium Corporation No. 382 (Ont CA, 2023) the Court of Appeal considers the extent to which a trial judge must state the law that they are applying, in their written reasons:

(b) Application to this Case

[32] In his factum, the appellant submits that the application judge erred in a number of respects. His main ground is that the application judge failed to state and then properly apply the two-part test for oppression recognized in the case-law. Embedded in this submission is the claim that the application judge’s reasons are insufficient. He further submits that the application judge failed to consider the full range of remedial options available to him under s. 135(3), and that he erred in concluding that he could not grant the remedy he requested – the renovation of Mr. Ceronja’s unit – without her formal participation in the proceedings. I would not accept these submissions.

[33] In terms of failing to explicitly state and then apply the two-part test for oppression, I follow the direction of the Supreme Court of Canada in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, in which Karakatsanis J. said at para. 74:

Legal sufficiency is highly context specific and must be assessed in light of the live issues at trial. A trial judge is under no obligation to expound on features of criminal law that are not controversial in the case before them. This stems from the presumption of correct application - - the presumption that "the trial judge understands the basic principles of criminal law at issue in the trial": R.E.M., at para. 45. As stated in R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 664, "Trial judges are presumed to know the law with which they work day in and day out": see also Sheppard, at para. 54. A functional and contextual reading must keep this presumption in mind. Trial judges are busy. They are not required to demonstrate their knowledge of basic criminal law principles.

This approach is not restricted to the criminal law; it enjoys application in other realms of appellate review: see e.g., 1346134 Ontario Ltd. v. Wright, 2023 ONCA 307, 166 O.R. (3d) 250, at paras. 56-57; Farej v. Fellows, 2022 ONCA 254, at paras. 46-47, leave to appeal refused, [2022] S.C.C.A. No. 180; Hague v. Hague, 2022 BCCA 325, at paras. 18-22.

[34] Although the application judge did not specifically refer to s. 135, when read as a whole, his reasons reveal an appreciation of the principles engaged by that provision. He cited cases that applied s. 135, all in the context of noise complaints, including Zaman v. Toronto Standard Condominium Corporation No. 1643, 2020 ONSC 1262, in which the governing test for oppression and the relevant jurisprudence are discussed (at paras. 23-31). The application judge also relied on his own decision in Dyke v. Metropolitan Toronto Condo Corp. No. 972, 2013 ONSC 463, another noise complaint case, in which he concluded that the test for oppression in s. 135(2) had been met, and for which he granted a remedy under s. 135(3).

[35] In reviewing the application judge’s reasons in a case such as this – where it is alleged that a condominium corporation has acted oppressively – the two steps of the oppression test may tend to merge. In Mohamoud, the unit-holder argued that the condominium corporation ignored her complaints and deliberately dragged its heels in responding, a submission that the application judge did not accept. As this court said, at para. 11:

After thoroughly engaging with these concerns, the application judge made the following finding:

I find that Ms. Mohamoud had a reasonable expectation that CCC25 would comply with its statutory obligations to repair and maintain its common elements. I also find that CCC25 acted reasonably and in compliance with these obligations.

Stated otherwise, the application judge found that the appellant failed to satisfy the first prong of the test: the respondent did not act in a manner that breached the appellant’s reasonable expectations because it acted reasonably and complied with its statutory obligations.

[36] In this case, where the Corporation is alleged to have acted oppressively, the appellant’s expectation of quiet enjoyment of his unit is not the focus of the analysis. Although the noise complaint is the underlying factual premise of the application, the legal issue is what the appellant could reasonably have expected the Corporation to do about it.

[37] Read as a whole, the reasons of the application judge reflect that he considered these issues to be interrelated. While the application judge agreed that ongoing noise at late hours could be bothersome, he dismissed the application because the Corporation acted reasonably in the circumstances. Although the Corporation sent only one letter to Ms. Ceronja (about the noise created by her daughter), the Corporation engaged her numerous times in trying to solve the problem. The application judge found that, in fact, the Corporation had gone above and beyond what was expected of it in the circumstances by retaining acoustic engineers and conducting noise-testing. The analysis of steps one and two of the test merged – the application judge found neither a breach of reasonable expectations nor conduct that was unfairly prejudicial or that unfairly disregarded the interests of the appellant.

. 1346134 Ontario Limited v. Wright

In 1346134 Ontario Limited v. Wright (Ont CA, 2023) the Court of Appeal considered the adequacy of reasons for decision:

Adequacy of reasons

[55] I will address first the adequacy of the trial judge’s reasons. When read as a whole, and in context, the trial judge’s reasons disclose what he decided and why, and allow for meaningful appellate review. As this court stated in Levac v. James, 2023 ONCA 73, 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: Farej v. Fellows, 2022 ONCA 254, leave to appeal to S.C.C. requested, 40198, at para. 45. 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. [Emphasis Added].

[56] Appellate courts should prefer an interpretation that is consistent with this presumption of knowledge of the record and the law. In R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 79, Karakatsanis J., for the majority, writes that:

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.

[57] As noted in G.F., “even if the trial judge expresses themselves poorly, an appellate court that understands the ‘what’ and the ‘why’ from the record may explain the factual basis of the finding to the aggrieved party”: at para. 71; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 52.