Simon's Megalomaniacal Legal Resources

Appeal-Judicial Review - Reasons - Inadequate Reasons Not a 'Free-Standing' Ground of Appeal?

This expression, 'free-standing grounds of appeal', puzzles me. There is a line of doctrine regarding procedural fairness that says any fairness breach - regardless of prejudice to the claimant - justifies reversal, so maybe it's to counter that principle - ie. that the error need not be material. That analysis would be consistent with general appeal law that requires both an error and prejudice - but then one wonders why some court's feel the need to emphasize the need for prejudice. My best theory at present is that where there is a suggestion of 'inadequate reasons' that the instinct is to consider such reasons essentially void, but this 'free-standing' characterization counters that.

. 1307839 Ontario Limited et. al. v. Klotz Associates et. al.

In 1307839 Ontario Limited et. al. v. Klotz Associates et. al. (Div Court, 2024) the Divisional Court considered the adequacy of reasons for an order, noting that inadequate reasons do not constitute a 'stand-alone' ground:

[30] A deficiency in reasons is not a stand-alone ground of appeal in and of itself. This is because the duty to give reasons is not simply for the purpose of keeping a judge “accountable”. Rather, reasons are necessary to justify and explain the result; to tell the losing party why he or she lost; to provide public accountability and satisfy the public that justice has been done and is seen to have been done; and to permit effective appellate review: Dovbush v. Mouzitchka, 2016 ONCA 381, 131 O.R. (3d) 474, at paras. 22-23; R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11-13.

. Oliveira v. Oliveira

In Oliveira v. Oliveira (Ont CA, 2022) the Court of Appeal made this comment on whether inadequacy of reasons can be a 'free-standing' ground of appeal [SS: italics are mine]:

[15] The challenge here is that, while the Contempt Order was made in open court on February 26, 2021, the SCJ motion judge did not provide any written reasons or endorsement. According to the respondents’ counsel, she did provide oral reasons, however no transcript has been filed with this court. The respondents’ counsel submit that the SCJ motion judge’s reasons for making the Contempt Order can be gleaned from certain passages in her subsequent endorsements, and that this was a proper basis for the chambers judge to conclude that the appeal of the Contempt Order is without merit.

[16] We disagree. A civil contempt order is a serious matter. The power to find an individual guilty of contempt is exceptional, and exercised as a last resort, only after finding that the necessary elements are made out, and after affording the alleged contemnor procedural fairness: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36; Bell ExpressVu Limited Partnership v. Corkery, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 20; and 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951, 135 O.R. (3d) 538, at para. 37, leave to appeal refused, [2017] S.C.C.A. No. 62. Without seeing the reasons for the Contempt Order, it is impossible to assess, even in a preliminary way, the merits of the proposed appeal. Moreover, a lack of reasons itself can be a ground of appeal. At the time the motion was heard by the chambers judge, the respondents had not even taken out a formal order.

. Filanovsky v. Filanovsky

In Filanovsky v. Filanovsky (Ont CA, 2017) the Court of Appeal succinctly stated the main requirement of reasons for decision:

[13] The sufficiency of reasons is not a free-standing ground of appeal. If the reasons do not permit meaningful appellate review, appellate intervention may be justified: see for example, Dovbush v. Mouzitchka, 2016 ONCA 381 (CanLII), at para. 22.

. Muise v. Mark Wilson’s Better Used Cars Limited

In Muise v. Mark Wilson’s Better Used Cars Limited (Div Ct, 2021) the Divisional Court considers inadequacy of reasons as a ground of appeal, here in an appeal from Small Claims Court:

[11] It has been recognized by the Supreme Court of Canada that sufficiency of reasons is not a "free-standing" or standalone ground of appeal. In R. v. Walker, 2008 SCC 34, para 20, Justice Binnie stated as follows:

… [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. There sufficiency should be measured not in the abstract, but as they respond to the substance of what was an 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 freestanding right of appeal" or in itself confer entitlement to appellate intervention" (para 53).

[12] A reviewing court cannot assume that a trial judge did not consider certain issues simply because they are not referred to in the written decision: Papp v. Stokes, 2018 ONSC 1598 [Div. Ct.].

[13] It has been further held that although reasons may be less than ideal, they may still meet the requirements for sufficiency of reasons: Nicholson v. Gemnay, 2017 ONCA 187 at para 7. Furthermore, the Court of Appeal has also confirmed that it is not enough to establish that a trial judge "could have been more expansive" to justify appellate intervention. The trial judge is not required to respond to every argument, nor is she or he required to recite all the evidence or specifically articulate every relevant inference that has been drawn: Trillium Motor World Ltd v. Cassels Brock & Blackwell LLP, 2017 ONCA 544 at para 354.

[14] As to the duty of a deputy judge to identify and deal with credibility concerns and to assess both the credibility and reliability of a witness' evidence, there is a high level of deference owed to a trial judge with respect to findings of credibility. In his decision in Palac v. Coppola, 2011 ONSC 623 at para 11, McDermot J. noted:

It is even higher standard when it comes to findings of credibility by the trial judge: Although the "palpable and overriding" standard of review applies to all factual findings, the findings of fact grounded in credibility assessments are particularly difficult to disturb on appeal. Credibility assessments are inherently partly subjective and reflect the life experience of individual judges and their own perception of how the world works. Credibility assessments are also grounded in numerous, often unstated considerations which only the trial judge can appreciate and calibrate.

[15] As was stated in Housen it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence.

[16] It is not required that a trial judge detail every aspect of her decision if she prefers some evidence over other evidence and it is clear from the entirety of the record, the course of the proceedings or decisions on key evidence that by implication identify findings about other evidence: Urso v. Greater Sudbury (City), 2017 ONSC 1746 (Div. Ct.) at para 32.

[17] As to the sufficiency of reasons of a deputy judge sitting in the Small Claims Court the same principles as to the sufficiency of reasons apply even though that division of the Superior Court of Justice is a court of summary justice: Baptiste v. Obermuller, 2010 ONSC 6274 (Div. Ct.) at para 12.

[18] In Baptiste, Molloy J. stated as follows at para 12:

It is necessary to recognize the reality of a busy Small Claims Court. It must also be acknowledged that the delivery of a decision in a timely way is an important goal in that court. Nevertheless, fundamental principles of fairness and natural justice require a reasoned decision. As Binnie J. noted in the landmark Supreme Court of Canada decision R. v. Sheppard, 2002 SCC 26:

The delivery of reasoned decisions is inherent in the judge's role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.

[19] Lauwers J.A. in the recent Court of Appeal decision in Bruno v. Dacosta, 2020 ONCA 602 at paras 13 – 25 thoroughly reviewed the governing principles on the sufficiency of trial reasons and the circumstances as to when appellate courts will intervene and salvage a judgement for which there are insufficient trial reasons.

[20] In this decision the court states that where the trial judge's reasoning is not apparent from the reasons or the record the appeal court ought not to substitute its own analysis for that of the trial judge: Bruno at para 23.

[21] In Bruno the court also observes that it is reluctant to order a new trial in civil matters and stated that a new trial should not be ordered unless the interests of justice plainly require that to be done and there must be find a real prospect that a substantial wrong or miscarriage of justice has occurred: Bruno, at para 20.