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Reasons - Inferred from Elsewhere (record, context, and forum constraints) (2). Doherty-Masters v. Waterloo Catholic District School Board
In Doherty-Masters v. Waterloo Catholic District School Board (Ont Div Ct, 2026) the Ontario Divisional Court considers where a court must look to to determine 'reasons' for a decision, where they are not plain in any 'reasons for decision':[45] Where a decision-maker does not provide reasons for a decision, the reviewing court looks to the record as a whole to understand the decision: Vavilov, at para. 137. Where the record and context do not shed light on the basis for the decision, the reviewing court is to examine the decision in light of the constraints on the decision-maker. However, “it is perhaps inevitable that without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process”: Vavilov, at para. 138.
[46] Here, the board had before it the lengthy, detailed, comprehensive report of its investigator. The report, as noted above, made factual findings, assessed and applied the relevant law, and concluded that Trustee Doherty-Masters had not breached the MCIA or the code of conduct. The report provided extensive reasons for its conclusions.
[47] The board is entitled to reach a different conclusion than that of the investigator. However, the justification for the board’s decision must be ascertainable either in reasons or, in the absence of reasons, in the record: Vavilov, at para. 137.
[48] First, I note that the board’s decisions are unclear about the misconduct it found Trustee Doherty-Masters to have engaged in. The in-camera motion stated that “Trustee Doherty-Masters breached the Code of Conduct by failing to avoid a situation that might create the appearance of a Conflict of Interest”. The motion that was passed in open session, as required under the Education Act, stated simply that “the Waterloo Catholic District School Board of Trustees find Trustee Doherty-Masters in breach of Board Policy 11-007 - Board Members' Code of Conduct.” Correspondence from the board’s counsel to Trustee Doherty-Masters the day after the meeting stated that the board had determined that Trustee Doherty-Masters had “breached the Code of Conduct by failing to avoid a situation that might give rise to an appearance of a conflict of interest, namely your husband's paid presentations for the Board.”
[49] I note that the minutes do not reveal what the board found Trustee Doherty-Masters to have done that was in breach of the Code. The record before it considered several allegations, including a) Trustee Doherty-Masters’s action in voting on a consent agenda that included the acceptance of the CPIC minutes for information; b) being approached by Superintendent Merkel before the CPIC decided to engage Mr. Masters; and c) voting on issues that might have affected her son’s employment or former employment with the board. The minutes shed no light on which allegation the board found was supported by the record.
[50] While the minutes refer to the Code of Conduct, not the MCIA, the Code requires compliance with the MCIA, so the MCIA should be considered in this court’s review. As noted above, the MCIA requires trustees to avoid attempting to influence any decision or recommendation related to a matter in which the trustee has a pecuniary interest. There was no factual basis on which to conclude that Trustee Doherty-Masters had anything to do with CPIC’s decision to engage Mr. Masters. The evidence was to the contrary. Superintendent Merkel approached Mr. Masters, approached Trustee Doherty-Masters, and presented the proposal to CPIC, and Trustee Doherty-Masters made no attempt to influence the superintendent or CPIC.
[51] The MCIA also requires trustees to disclose a direct or indirect pecuniary interest in a matter that is the subject of consideration at a meeting, and not take part in the discussion of such a matter. The facts before the board indicate that Trustee Doherty-Masters did not run afoul of these proscriptions. First, there was no board vote and therefore no opportunity for Trustee Doherty-Masters to make any declaration prior to Mr. Masters providing his presentation at CPIC’s request. Second, as noted by the investigator, the receipt of minutes for information does not constitute “consideration of an item”. This was both factually true, as stated by the board’s Executive Superintendent of Corporate Services, Treasurer, and Chief Financial Officer, and legally true: Duncan v. Hewitt, 2021 ONSC 866, at para. 33. Third, as noted by the investigator, even if the board had the ability to approve the minutes, Trustee Doherty-Masters would not have been required to declare a pecuniary interest. This was because the event had already occurred and Mr. Masters had already been paid, so if she had any pecuniary interest in June 2023, it was very remote.
[52] The Code of Conduct is broader than the MCIA. The Code, in addition to requiring compliance with the MCIA, sets out an expectation that trustees will avoid situations that might present a conflict of interest or an appearance of a conflict of interest.
[53] The respondent acknowledges that the appearance of a conflict must be assessed on the basis of a reasonable onlooker who is apprised of the relevant facts. The respondent submits that the board’s decision that Trustee Doherty-Masters’s actions breached the Code, assessed in this way, was reasonable. The respondent submits that the constraints upon the board in making its decision included the legislative provisions, the report of the investigator, the complaint, and the Rebel News article. In this factual and legal context, it was reasonable for the board to conclude that Trustee Doherty-Masters had breached the Code of Conduct.
[54] The facts before the board were the following: Trustee Doherty-Masters had no input into the decision to hire Mr. Masters; any discussion with Superintendent Merkel was initiated by the superintendent, not Trustee Doherty-Masters; Mr. Masters and Superintendent Merkel had made similar arrangements on numerous occasions before Trustee Doherty-Masters was elected to the board; the minutes of the CPIC were provided to the board for information, not for any kind of decision or approval; the event in question had already occurred by the time the minutes were provided to the board for information; and Brendan Masters was employed full-time by a different board by the time Trustee Doherty-Masters was elected to the board.
[55] The respondent submits that the Rebel News article formed part of the context for the board’s decision. It is troubling that the board would have based its decision on such an article when, as noted by the investigator and explained in the report, that article was based on a source that was mistaken as to the facts. The board had the correct facts before it, as would the reasonable onlooker who would determine whether there was an appearance of a conflict of interest.
[56] The same analysis applies to the respondent’s submission that the board could have based its decision on the fact that Trustee Doherty-Masters had a conversation with Superintendent Merkel about Mr. Masters’s engagement by CPIC and that Mr. Masters subsequently sent a message to the Superintendent about his conversation with Trustee Doherty-Masters.
[57] The facts before the board were that the Superintendent had initiated the conversation with Trustee Doherty-Masters. The investigator’s report, relying in part on Re Tory, 2016 ONMIC 1, explained that Trustees cannot control who approaches them and initiates a conversation. Further, neither party to the conversation could recall its contents; the contents were therefore unknown and unknowable to the board.
[58] The respondent also relies on the March 2, 2023, email in which Mr. Masters reported to Superintendent Merkel that the trustee was considering whether Mr. Masters’s participation in the event would give rise to an actual or perceived conflict of interest in support of its conclusion. It is difficult to see how this email creates an appearance of a conflict. It demonstrates merely that Trustee Doherty-Masters turned her mind to the issue. Presumably she, like the investigator, concluded that her complete lack of involvement in CPIC and in the decision to hold the event meant there could be no possible appearance of a conflict.
[59] The respondent relies on the anonymous complaint as further support for its position. As the investigator noted, the anonymous email was not complaining that Trustee Doherty-Masters failed to declare her interest when the Board received the CPIC minutes; the complaint was that Mr. Masters had been engaged by CPIC to begin with. CPIC’s decision to engage Mr. Masters clearly had nothing to do with Trustee Doherty-Masters, as the board knew.
[60] In sum, there is nothing in the record to support the board’s conclusion that Trustee Doherty-Masters violated the Code of Conduct.
[61] As noted above, it is impossible to determine what the board found Trustee Doherty-Masters did that was in breach of the Code. It is equally impossible to determine what the board could have found Trustee Doherty-Masters did that was in breach of the Code, but failed to articulate, on the basis of all the information before it.
[62] Given the board’s failure to explain its findings and the fact that those findings are not supported by the record before it, it is impossible to understand how the board could rationally reach the conclusions it did. The decision is untenable and must be set aside. . Abbott v. London Health Sciences Centre
In Abbott v. London Health Sciences Centre (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this brought against a dismissed JR, which was in turn brought against the respondent board when they "without affording the appellants a hearing, decided to (i) cease providing OR time to the appellants and reassign that time to “clinical priority tertiary, quaternary-level surgical cases”, and (ii) cancel the hospital privileges of the appellants and revoke their staff appointments related to using OR time for their private practice patients", under s. 44 ['Ceasing to operate or provide services'] of the Public Hospitals Act.
The court considers the adequacy of reasons, here in a JR 'reasonableness review' context and from an administrative decision that did not provide "formal reasons" (adopting the reasons under it):[55] Finally, a reasonableness review focuses on the reasons of the administrative decision maker: Vavilov, at para. 84. In this case the Board gave no formal reasons; it adopted the recommendations of the Committee contained in the detailed Briefing Note the Committee provided to the Board. Although the Board did not expressly say that it was adopting the Briefing Note as its reasons, the Divisional Court appears to have approached the matter as though it did.
[56] The appellants did not argue that that approach was inappropriate here, and in the circumstances of this case I see no error in it. In conducting a reasonableness review, a reviewing court is directed to consider the institutional context in which the decision is made and the nature of the decision maker: Vavilov, at paras. 91-93. These factors make it sensible to view the Board as having adopted the recommendations of the Committee for the reasons expressed by the Committee in the Briefing Note. This conclusion is fortified by the fact that the December 22, 2023 letters, sent to the appellants informing them of the Board’s decision, outlined, albeit in abbreviated form, reasons for the Board’s decision consistent with the Briefing Note.
[57] As the Federal Court of Appeal noted in Givogue v. Canada (Attorney General), 2024 FCA 186, at para. 7, leave to appeal refused, [2025] S.C.C.A. No. 30: “[w]here, as here, the Commission adopts the recommendations of its Officer in the Report for Decision, its brief reasons may be supplemented by the reasons in the Report” (emphasis added); see also Tazehkand v. Bank of Canada, 2023 FCA 208, at para. 39. . Gerasimov v. Ratayev
In Gerasimov v. Ratayev (Ont CA, 2025) the Ontario Court of Appeal noted that an argument of 'inadequate reasons' may be met by referring to the record below, here in a case conference context:[3] One of the reasons for judicial decisions noted by the Supreme Court in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 46 and 66, is to permit meaningful appellate review. 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”: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 70. However, if the answers are not on the record, “cursory reasons may obscure potential legal errors and not permit an appellate court to follow the trial judge’s chain of reasoning”: G.F., at para. 75. This was the case here. The lack of intelligible reasons showing a chain of reasoning means that there is no basis on which this court can decide the appeal on the merits. There needs to be an evidentiary record.
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