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Reasons

I've decided to makes 'reasons', both for in court and administrative proceedings, a separate issue. With the heavy urging of the Supreme Court of Canada in Vavilov that reasons play such a huge part in making their decisions, well .... 'reasonable', it seems that they will be more important. Good thing too.

Before this, I tended to put relevant 'reason' cases in the administrative law section: Administrative Law: Reasons, which see.

. Bruno v. Dacosta

In Bruno v. Dacosta (Ont CA, 2020) the Court of Appeal considered the interesting case of an inmate suing the province for negligence (and other defendants) for an assault suffering at the hands of other inmates. The main appeal finding was with respect to the adequacy of the reasons given at trial (and from para 20, the extent to which an appeal court may salvage inadequate reasons):
(1) The Governing Principles on the Sufficiency of Trial Reasons

[13] The Supreme Court explored the functional purposes for good reasons in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 39, per L’Heureux-Dubé J.:
Reasons … foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review: … Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given. [Emphasis added; citations omitted.]
See also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 79-81.

[14] Beginning with the Supreme Court’s decision in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 and most recently in Vavilov, there has been a continuing judicial conversation about the duty of judges and tribunals to give reasons that properly explain a decision. The cases speak about accountability, intelligibility, adequacy, and transparency. In Vavilov, the court invoked the need to “develop and strengthen a culture of justification”: at paras. 2, 14, 79 and 99; see also Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158, [2011] 4 F.C.R. 425, at para. 16, considering a decision of the Canada Industrial Labour Board, per Stratas J.A. I do not see this project of justification, which originated in several seminal criminal law decisions, as limited to administrative law: Vavilov, at paras. 79-80.

[15] In Sheppard, the court noted at para. 55 that “[t]he delivery of reasoned decisions is inherent in the judge’s role [and] is part of his or her accountability for the discharge of the responsibilities of the office.” The court continued, at para. 55:
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. [Emphasis added.]
[16] A meaningful right of appeal “must not be an illusory right”: R. v. Richardson (1992), 1992 CanLII 7710 (ON CA), 9 O.R. (3d) 194 (C.A.), [1992] O.J. No. 1498, at para. 13.

[17] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, McLachlin C.J. focussed on intelligibility, stating at para. 35 that “[t]he basis for the trial judge’s verdict must be ‘intelligible,’ or capable of being made out.” She was referring to the trial judge’s duty to lay out the chain of reasoning, in which “a logical connection between the verdict and the basis for the verdict must be apparent.” She explained, at para. 35, that in discerning whether there is such a logical connection, “one looks to the evidence, the submissions of counsel and the history of the trial to determine the ‘live’ issues as they emerged during the trial.” In that task of discernment, the appellate court reads the reasons “as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered”: see also Vavilov, at para. 85.

[18] Drilling down to the practical elements, in 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: Welton v. United Lands Corp., 2020 ONCA 322, at paras. 57 and 58. 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.

[19] But the principles governing the sufficiency of the reasons of trial judges do give rise to a difficult issue: To what extent should appellate courts work to salvage inadequately explained or conclusory trial reasons?


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