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Appeal Court Dicta

Appeal-Judicial Review - Reasons - Sufficiency for Review

. Willick v. Willard

In Willick v. Willard (Ont CA, 2023) the Court of Appeal considered when reasons for decision are adequate for appeal purposes:
(4) Did the trial judge’s reasons provide an adequate basis for the appeal?

[57] It is trite law that a meaningful right of appeal “must not be an illusory right,” as it would be if the reasons provided by the judge for their decision were insufficient: R. v. Richardson (1992), 1992 CanLII 7710 (ON CA), 9 O.R. (3d) 194 (C.A.), at para. 13. In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55, Binnie J. stated that: “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.” This is an assessment that the appeal court itself is in the best position to undertake; failing that functional test is an error of law.

[58] The onus is on the appellant to show an actual error or that the reasons frustrate appellate review: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 79. In Farej v. Fellows, 2022 ONCA 254, at para. 46, Doherty J.A. noted that the Supreme Court in G.F. “recently cautioned against appellate courts reviewing trial judge’s reasons with an overly critical eye, especially in cases turning on credibility assessments”: citing G.F., at paras. 74-76. While an appeal court “must be rigorous in its assessment,” merely raising an ambiguity or an uncertainty in the reasons is insufficient to justify appellate intervention; “the appeal court must determine the extent and significance of the ambiguity”: G.F., at para. 79. To generalize this proposition, the flaw in the reasons must render doubtful both the trial judge’s chain of reasoning and the outcome of the case.

[59] Where the reasons are deficient in explaining the result to the parties, and the appeal court does not consider itself able to do so, a new trial may be needed. This is a case-specific assessment. To order a new trial in a civil matter, the court must be satisfied that “the interests of justice plainly require that to be done”: Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), at para. 68. There must be a real prospect “that a substantial wrong or miscarriage of justice has occurred”: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6); Vokes Estate v. Palmer, 2012 ONCA 510, 294 O.A.C. 342, at para. 7; Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at para. 23.

[60] In my view, the appellants have not met their onus of showing that the trial judge made an actual error or that his reasons frustrate appellate review, for two reasons. First, the reasons in this case are not perfect, but they are adequate for appellate review, which I was able to undertake in the preceding reasons.[1] Second, the focus of the appellants’ complaint was on the trial judge’s speculation about whether an intervening event caused Mr. Willick’s death. As I have explained, once the trial judge determined that the doctors had not breached their respective standards of care, there was no act or omission on anyone’s part that could, in legal terms, have caused Mr. Willick’s tragic death. That aspect of his reasons was not relevant to the outcome of the case. This asserted flaw in the trial judge’s reasons does not render doubtful his chain of reasoning or the outcome of the case.
. R. v. J.C.

In R. v. J.C. (Ont CA, 2023) the Court of Appeal comments on the adequacy of reasons:
[5] Appellate intervention is justified where deficiencies in the reasons amount to an error of law because they foreclose meaningful appellate review: Sheppard, at paras. 25, 28. Appellate review of the sufficiency of reasons follows a functional approach and, proceeding with deference, requires the reading of the reasons in the context of the evidence, the submissions of counsel and the live issues at trial: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 55.
. Levac v. James

In Levac v. James (Ont CA, 2023) the Court of Appeal considered the 'inadequate reasons' ground that the reasons for decision frustrate appellate review:
[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.

[77] In R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 74-76, the Supreme Court of Canada cautioned against appellate courts reviewing trial judge’s reasons with an overly critical eye, especially in cases turning on credibility assessments. The majority stated, 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. Burgess

In R. v. Burgess (Ont CA, 2022) the Court of Appeal made these useful comments in a criminal case about the need for reasons, focussing on legal sufficiency:
[23] There is no doubt that if this were a jury trial, the judge would have been required to give a Carter instruction. It is good practice for trial judges in non-jury criminal trials to self-instruct on difficult issues where the risk of error is real, if only by adverting to the leading authority.

[24] I am mindful of the Supreme Court’s reminder in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th), at para. 74:
Legal sufficiency requires that the aggrieved party be able to meaningfully exercise their right of appeal: Sheppard, at paras. 64-66. Lawyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred: paras. 46 and 55. 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.
Observe that there is a tension between the first and second principles mentioned in para. 74. The first principle is that “[l]awyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred” by looking at the trial judge’s reasons and the results. The second principle, which stands in tension with the first, is that trial judges do not always have to set out the applicable law because they are presumed to know and understand the basic principles at issue in the trial. This tension comes to the fore in cases in which the principles at play are neither straightforward nor routine parts of a trial judge’s work, like this one. The Carter rule and its corollary or obverse are not part of criminal law’s routine basic principles, in the way, for example, that the principles of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, would be, the recitation of which is no longer required: R. v. Stairs, 2007 ONCA 464, 225 O.A.C. 103, at para. 16; R. v. F.B.P., 2019 ONCA 157, at para. 12. Based on experience, I agree with the trenchant and understated observation that “it is obvious that the admissibility of evidence of co-conspirators is complex — even for judges”: David M. Paciocco, Palma Paciocco, Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law Inc., 2020), at p. 206.

[25] Because the trial judge in this case did not expressly self-instruct on what I have called the corollary or obverse to the Carter rule, this court is left to consider the text of his reasons and what he appeared to do with the inadmissible hearsay evidence, in order to discern whether he misused it. This is what I now proceed to do.


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