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Appeal-Judicial Review - Reasons and Credibility

. Cann v. Ontario College of Teachers

In Cann v. Ontario College of Teachers (Div Court, 2022) the Divisional Court considers an Ontario College of Teachers Act (OCTA) appeal from the revocation of a teacher's "certificate of qualification and registration". In these quotes the court considers the reasons for decision of the Discipline Committee of the Ontario College of Teachers, particularly regarding credibility:

[21] Recently, in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, the Supreme Court of Canada provided guidance on the correct approach to employ on appellate review of trial reasons. At para. 69, the Court reiterated “the importance of a functional and contextual reading of a trial judge’s reasons when those reasons are alleged to be insufficient.” It warned against finely parsing the reasons in search of an error. Rather, the appellate court must “assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review.”

[22] At para. 76, the Court went on to express frustration at the ongoing failure of appellate courts to follow the Court’s clear direction with respect to appellate review, particularly when findings of credibility are challenged:

Despite this Court’s clear guidance in the 19 years since Sheppard to review reasons functionally and contextually, we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the trial judge. Frequently, it is the findings of credibility that are challenged.

[23] Although the Court’s comments were made in the context of reviews of criminal convictions by trial judges, they apply equally to the Panel’s decision in this case. The Panel’s reasons must be read functionally and contextually to determine whether they explain what the Panel decided in a way that permits appellate review.

[24] G.F. underscores the approach the Supreme Court of Canada articulated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 to appellate review of reasons in the context of conflicting evidence regarding sexual assault. R.E.M. is also instructive in this case.

[25] In R.E.M., the Court confirmed that a trier of fact’s reasons must be judged in the context of the record, the issues, and submissions of counsel at trial. “The question is whether, viewing the reasons in their entire context, the foundations for the trial judge’s conclusions — the “why” for the verdict — are discernable”: at para. 37.

[26] The Court noted that it is difficult to articulate the basis or process for findings of credibility precisely or completely: R.E.M., at para. 49. See also F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paras. 72, 100; G.F., at para. 81.

[27] In terms of what constitutes sufficient reasons on issues of credibility, the Court held that credibility findings must be made with regard to the other evidence in the case, which “may require at least some reference to the contradictory evidence.” However, “what is required is that the reasons show that the judge has seized the substance of the issue.” A trial judge is not required to enter into a detailed account of the conflicting evidence: R.E.M., at para. 50, citing R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at paras. 23, 30. An appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions: R.E.M., at para. 55.

[28] As the Court held in G.F., at para. 82, “under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words ‘credibility’ and ‘reliability’ but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.”

[29] A trier of fact “is not required to summarize specific findings on credibility by issuing a general statement as to ‘overall’ credibility. It is enough that the trial judge has demonstrated a recognition, where applicable, that the witness’s credibility was a live issue”: R.E.M., at para. 64.

Appellate Review Where There are Divergent Accounts of What Happened

[30] Case law also offers guidance on the correct approach to appellate review of trial reasons when faced with two opposing versions of events.

[31] The steps set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 — to aid in determining reasonable doubt in the criminal law context where a jury is faced with conflicting testimonial accounts — are not an appropriate tool for evaluating conflicting evidence on the balance of probabilities in civil cases. Rather, “[i]n such cases, believing one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case. That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant”: McDougall, at para. 86. See also Caine v. Ontario College of Teachers, 2022 ONSC 2592 (Div. Ct.), at para. 35.

[32] In R.E.M., the Court, at para. 66, similarly described what is required with respect to credibility findings when the parties’ versions of events conflict:

Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence, finding her generally truthful and ‘a very credible witness’, and concluding that her testimony on specific events was ‘not seriously challenged’. It followed of necessity that he rejected the accused’s evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt.