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Appeal-Judicial Review - Data-dump Reasons

. Canada v. Cameco Corporation

In Canada v. Cameco Corporation (Fed CA, 2020) the Federal Court of Appeal expressed concern about the conduct of a lower court judge in including much unprocessed evidence in their ruling, in a "factual data dump":
[5] The Tax Court Judge devoted the first 197 pages (570 paragraphs) of his reasons (which in total were 282 pages long) to a brief three paragraph introduction followed by a description of the witnesses and a recitation of various parts of the evidence. This recitation included several excerpts from various documents, excerpts from the transcript and detailed charts from the experts’ reports. Despite the lengthy description of the evidence, there is very little, if any, analysis of this evidence and no indication in these first 570 paragraphs of how any particular piece of evidence is relevant or necessary for the issues that were before the Tax Court. This lengthy dissertation is comparable to the "“factual data dump”" described by the Ontario Court of Appeal in Welton v. United Lands Corporation Limited, 2020 ONCA 322, at paras. 56 to 63. I agree with the comments of the Ontario Court of Appeal as set out in those paragraphs.

SS: The passage that the court refers to from Welton is quoted here:
[56] I conclude by expressing a concern about the length of the reasons for decision in this case, which is reflective of an unfortunately growing trend, of which this is not the worst example, but it is the one before us.

[57] Trial judges attend to the evidence in light of the relevant law, listen to it and think about it, draw appropriate inferences, distill the key evidence, make the factual findings, apply the law to the findings, and communicate the basis for the decision to the parties through the reasons. Of these various tasks, simply being present to receive the evidence is only a trial judge’s first step on the path to the decision.

[58] More specifically, in their reasons trial judges 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. All of this is necessary for the reasons to be of acceptable quality and for there to be a meaningful right of appeal. (All of these elements are present in the reasons in this case but are somewhat hard to discern in the expanded text.)

[59] Note that in setting out these essential tasks I have reversed the customary sequence in decisions, in which the recitation of facts precedes the statement of the issues. The problem I wish to highlight occurs precisely there. It makes good narrative sense to inform the reader by setting the context first, which involves telling the underlying story briefly. But the real marshalling of the facts according to their relevance and salience is only possible when the trial judge has identified the live issues. In short, factual determinations and descriptions should be issue-driven.

[60] It is important for trial judges to focus the analysis on the live issues that will decide the case. Helpful guidance can be found in the somewhat analogous function that trial judges perform in crafting criminal and civil jury instructions: “The obligation to review the substantial parts of the evidence and relate it to the issues that ripen for decision by the jury imposes no duty upon the trial judge to review all the evidence. The role of the trial judge is to decant and simplify” (internal citations omitted): R. v. Saleh, 2013 ONCA 742, at para. 142, per Watt J.A. There is, to emphasize, no need to recite all of the evidence, even the irrelevant, or to refer to every argument made by every party, no matter how unhelpful: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at paras. 11-12, 35-57; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 128.

[61] Appellate courts see reasons for decision that do not address the evidence and the arguments and are criticized as conclusory, on the one hand, and decisions that leave nothing out, on the other hand. The task of a trial judge is to find the golden mean, to “decant and simplify,” to synthesize the evidence and make the necessary findings; the task is not to be a court reporter.

[62] Many overly long decisions, including this one, contain what I would call a “factual data dump.” Pages 5-79 consist of a witness-by-witness account of examination in-chief, cross-examination, and re-examination. The analysis of the evidence starts at para. 394 on p. 79 and it repeats some of the evidence previously reviewed, adding to the length.

[63] Perhaps this emerging style is artifact of electronic note-taking by judges, but it is not helpful and can be confusing. A blizzard of words can obscure. Digesting unduly lengthy reasons consumes far too much time because every word must be read by the parties, by their counsel at great expense, and by appellate courts. A data dump does not constitute fact-finding. It is an extended ‘note to self’ best kept to oneself because it hinders the efficient and economical communication of judicial reasoning.


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