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Appeal-Judicial Review - Reasons - Degree of Canvassing Evidence

. R. v. Gordon

In R. v. Gordon (Ont CA, 2024) the Ontario Court of Appeal considered the adequacy of reasons, here where the issue was the thoroughness of the canvassing of evidence:
[7] Nor do we think that the trial judge failed to consider all the relevant evidence relating to the complainant’s capacity to consent. While the short oral decision given by the trial judge could have benefitted from including greater detail as to evidence considered, a trial judge is not required to address explicitly every item of evidence relied on by the Crown.

[8] In R. v. Walle, 2012 SCC 41, Moldaver J. said, at para. 46:
A failure of a judge to consider all the evidence relating to an ultimate issue of guilt or innocence constitutes an error of law: R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, at p. 296; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 31-32. However, as Sopinka J. made clear in Morin, there is “no obligation in law on a trial judge to record all or any specific part of the process of deliberation on the facts”, and “unless the reasons demonstrate that [a consideration of all the evidence in relation to the ultimate issue] was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was error in law in this respect” (p. 296). I see no failure to consider all the relevant evidence in this case.
. Manitoba Métis Federation Inc. v. Canada (Energy Regulator)

In Manitoba Métis Federation Inc. v. Canada (Energy Regulator) (Fed CA, 2023) the Federal Court of Appeal considers an appeal by a Metis organization of a decision of the Commission of the Canadian Energy Regulator (the Commission) involving a hydro project advanced by Manitoba Hydro. Here, the court considers completeness of reasons for decision:
[195] Next, it is understood that, when examining the reasons for their decisions, triers of fact benefit from a presumption that they have considered the whole record before them (Simpson v. Canada (Attorney General), 2012 FCA 82, 213 A.C.W.S. (3d) 223 at para. 10).
[196] The record here is voluminous. The previous sections in these reasons describe in some detail the documents that were before the Commission as it was making the Decision. One can glean from the record the reasoning of the Commission.

[197] With respect to the MMF’s new argument regarding the sufficiency of reasons, I rely on guidance from the Supreme Court of Canada that explains when reasons are inadequate. Reasons are inadequate when they prevent meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at paras. 25, 28 [Sheppard]. While Sheppard was rendered in a criminal context, it is helpful to understand the threshold required to determine whether reasons are adequate.

[198] The duty to give adequate reasons does not require perfection. Reasons do not need to “show how the judge arrived at his or her conclusion, in a ‘watch me think’ fashion”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 17 [R.E.M.], emphasis in original. An appellate court must simply be able to see “why” the trial judge decided in a particular way (R.E.M. at para. 17).

[199] This Court adopted and summarized the principles from Sheppard to allow appeals from the Federal Court due to inadequate reasons in Canada v. Long Plain First Nation, 2015 FCA 177, 388 D.L.R. (4th) 209 at para. 143. In that case, while this Court ultimately did not give effect to this ground of appeal, it did reinforce the importance of assessing reasons in their overall context.

[200] Adopting a practical and functional approach to the adequacy of the Commission’s reasons, I find that while they are not perfect and could have been more fulsome, they do not prevent meaningful appellate review. A review of the record allows me to find that the Commission implicitly considered the effects of the Decision on section 35 rights of the Métis, as required by section 56(1) of the CER Act. For the same reasons as set out in paragraphs 83 to 97 above, the Commission was well aware of its statutory duties and considered the honour of the Crown and the effects its Decision would have on the constitutional rights of the Métis.
. Mahendran v. Singh et al.

In Mahendran v. Singh et al. (Div Court, 2022) the Divisional Court considered the adequacy of reasons for decision:
[19] It is trite to state that a court must consider the important evidence and the pertinent arguments presented by the parties. It must not, however, deal with every specific piece of evidence or argument advanced by counsel when coming to a decision. The jurisprudence supporting this position was recently articulated by the Alberta Court of Appeal in Bott v. Schneider, [2022] A.J. 547 at para. 87:
The PCJ further erred in not explaining fully his reasoning for granting the order. While courts have a duty to give reasons sufficient to permit appellate review (see R v Sheppard, [2002] 1 SCR 869, 2002 SCC 26 (at paras 28-29, 50 and 55), if the record and context demonstrate the Court's reasons, and support the conclusion, even without articulation, that may be sufficient: Custom Metal Installations Ltd. v. Winspia Windows (Canada) Inc, 2020 ABCA 333 at para 32).
. Vespa v. Aviva General Insurance Company

In Vespa v. Aviva General Insurance Company (Div Court, 2022) the Divisional Court considered the extent to which a tribunal must set out their consideration of the evidence in their reasons for decision:
[15] The Ontario Court of Appeal has considered the failure of a trier of first instance to refer to portions of evidence in their reasons. In Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765 (Ont. C.A.), at paras. 343-344, the Court noted:
The mere absence of any reference to evidence in reasons for judgment does not establish that the trial judge failed to consider that evidence. The appellants must point to something in the trial record, usually in the reasons, which justifies the conclusion that the trial judge failed to consider certain evidence.

When assessing an argument that a trial judge failed to consider relevant evidence, it is helpful to begin with an overview of the reasons provided by the trial judge. If that overview demonstrates a strong command of the trial record and a careful analysis of evidence leading to detailed findings of fact, it will be difficult for an appellant to suggest that the mere failure to refer to a specific piece of evidence demonstrates a failure to consider that evidence. The failure to refer to evidence in the course of careful and detailed reasons for judgment suggests, not that the trial judge ignored that evidence, but rather that she did not regard that evidence as significant.
[16] There is an important distinction between considering evidence and referring to that evidence in reasons. To demand that an adjudicator refer to every shred of evidence in the record in his or her reasons is an impossibly high expectation. Here, there is no basis to conclude that the adjudicator failed to consider the Dwyer report. Nor can it be said that the adjudicator based her conclusion on an absence of evidence or irrelevant considerations. A review of the reasons in their entirety reveal that the adjudicator maintained a firm grasp of the evidentiary record, understood the issues in dispute and the legal question for determination. Moreover, the adjudicator had the benefit of the Appellant’s submissions which referred to the Dwyer report several times.

[17] It is not the function of this court to reweigh and reassess the evidence that was before the adjudicator, nor to speculate or infer why she preferred certain evidence. Nevertheless, the Dwyer report was not without its problems: one, it was written some four months after the treatment plan was submitted yet never once refers to it. Two, the Dwyer report certainly recommends chiropractic treatment but does so without any explanation as to why. Finally, the Dwyer report does not comment on why the course of chiropractic treatment in the treatment plan itself would have been beneficial for the Appellant. The adjudicator’s reliance on the IE report, which squarely addressed but did not support the recommendation for chiropractic assessment and treatment in the treatment plan, was certainly not misplaced.

[18] It follows that there was no procedural unfairness in the adjudicator preferring to rely upon evidence which squarely addressed the question to be determined. Procedural fairness does not require that every argument be the subject of a line of analysis or that every aspect of the evidence be commented upon.

[19] The adjudicator’s reasons incorporate over 30 paragraphs of analysis of the Appellant’s physiotherapy treatment, the IE report and the medical records of the Appellant’s treating physicians. The reasons were detailed, extensive and more than sufficient.

[20] In the reconsideration decision, the Vice-Chair properly set out the narrow grounds upon which a request for reconsideration can be granted. The Vice-Chair went on to squarely address the Appellant’s concern that the Dwyer report was not considered at first instance. The Vice-Chair dismissed this argument, fairly stating that an adjudicator need not refer to every piece of evidence, submission or precedent raised by a party in submissions. Not doing so did not indicate that such evidence was not considered. The Vice-Chair found the adjudicator’s decision to contain a lengthy and detailed review, consideration and weighing of the medical evidence which amply supported the conclusions reached. I conclude that the Vice-Chair properly considered the Appellant’s request within the parameters of the governing rules and provided sufficient reasons why that request was denied.
. Dow & Duggan Log Homes International (1993) Limited v. Canada

In Dow & Duggan Log Homes International (1993) Limited v. Canada (Fed CA, 2021) the Federal Court of Appeal considered the extent to which evidence must be addressed in reasons for decision:
[10] The appellant also submits that the Tax Court ignored evidence when it decided its tax appeal. I reject this. The failure of the Court to mention evidence in its reasons does not mean it ignored the evidence: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at paras. 66-69. The Court is presumed to have considered all of the evidence before it: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 46.
. Zachariadis Estate v. Giannopoulos Estate

In Zachariadis Estate v. Giannopoulos Estate (Ont CA, 2021) the Court of Appeal considered the extent of canvassing of evidence required for issuing reasons for decision:
[28] I see no merit in this ground of appeal. The motion judge had the benefit of extensive submissions and was clearly aware of the various alleged suspicious circumstances. The fact that he chose to address only a sampling of the alleged suspicious circumstances in his reasons does not constitute error. As this court acknowledged in Canadian Broadcasting Corporation Pension Plan v. BF Realty Holdings Ltd., 2002 CanLII 44954 (ON CA), 214 DLR (4th) 121, at para. 64, citing R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, “[a] trial judge is not required in his or her reasons to demonstrate that all aspects of the evidence have been considered, nor is it necessary that reasons be given for every point raised in the case”. As for the presence of the word “payment’ on the bank draft, nothing suggests that the motion judge was unaware of that fact or failed to consider it. In any event, the word “payment” is neutral and does not necessarily imply that the payment was not a gift.
. Focal Elements Ltd. v Alvand

In Focal Elements Ltd. v Alvand (Div Ct, 2021) the Divisional Court commented that when reasons for decision lack a relevant evidentiary factor it need not be fatal to a ruling:
[15] As the Supreme Court emphasized in Housen, failure to discuss a relevant factor in depth, or even at all, is not itself a sufficient basis for an appellate court to reconsider the evidence. An omission is only a material error if it gives rise to the reasoned belief that the trial judge ignored or misconceived the evidence in a way that affected the ultimate conclusion. Further, the weight to be assigned to various pieces of evidence is essentially the province of trier of fact.
. R. v G.C.

In R. v G.C. (Ont CA, 2021) the Court of Appeal commented on reasons for decision:
[10] In cases such as this, the Supreme Court of Canada has recently cautioned that appellate courts “must not finely parse the trial judge’s reasons in search for error”: R. v. G.F., 2021 SCC 20, at para. 69. The Court emphasized both the strong deference due to a trial judge’s credibility findings and the presumption that trial judges must be taken to know the law. The presumption applies with particular force when it comes to settled principles. As the Court said, at para. 75 of G.F., “trial judges do not need to provide detailed maps of well-trod paths”. The Court further observed, at paras. 76-79, that reasons which are “imperfect” or language which is “ambiguous” does not per se require allowing an appeal.
. LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046

In LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046 (Ont CA, 2021) the Court of Appeal commented on the adequacy of reasons for decision:
[21] As for the appellant’s submissions that the application judge failed to make certain factual findings, she was not obliged to address every argument raised: Welton v. United Lands Corporation Limited, 2020 ONCA 322, 64 C.C.E.L. (4th) 265, at para. 60; Manastersky v. Royal Bank of Canada, 2019 ONCA 609, 146 O.R. (3d) 647, at para. 125; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 18. Most fundamentally, she considered the competing interests of the parties, recognized that the negotiations were ongoing, and found that as of the date of the hearing, the appellant had not established oppression under the Act. We would not give effect to this ground of appeal.
. R. v. R.C.

In R. v. R.C. (Ont CA, 2021) the Court of Appeal considered the extent to which inconsistencies must be addressed in reasons for decision:
[37] Trial judges are not required to address every inconsistency in the evidence of a witness. They are however obliged to explain how they resolve major inconsistencies. Inconsistencies about which an honest witness is unlikely to be mistaken can demonstrate a “carelessness about the truth” while inconsistencies about peripheral issues are of less significance: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354; see also R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 30-31.
. R v Harris

In R v Harris (Ont CA, 2014) the Court of Appeal commented as follows on the appeal ground of misapprehension of evidence:
[16] Fundamentally, this appeal amounts to an invitation to this court to improperly substitute its own credibility assessments for those made by the trial judge. The appellant asks this court to dissect and microscopically examine single passages from the trial judge's reasons in isolation and out of context. As the Supreme Court of Canada made clear in R. v. Stirling, 2008 SCC 10 (CanLII), [2008] 1 S.C.R. 272, at para. 13, citing R. v. Davis, 1999 CanLII 638 (SCC), [1999] 3 S.C.R. 759, at para. 103, citing R. v. Davis (1998), 1998 CanLII 18030 (NL CA), 159 Nfld. & P.E.I.R. 273 (C.A.), at para. 138:
It is not sufficient to "cherry pick" certain infelicitous phrases or sentences without enquiring as to whether the literal meaning was effectively neutralized by other passages. This is especially true in the case of a judge sitting alone where other comments made by him or her may make it perfectly clear that he or she did not misapprehend the import of the legal principles involved. As McLachlin, J. said in B.(C.R.) at 26: "[t]he fact that a trial judge misstates himself at one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence.” [Citations omitted]
[17] In short, the trial judge directed himself to the relevant issues and he did not err in his appreciation of the evidence in a manner that could have affected the outcome of the trial: R. v. Alboukhari, 2013 ONCA 581 (CanLII), 310 O.A.C. 305, at para. 30. There was no miscarriage of justice and this ground of appeal is dismissed.
. K.K. v. M.M.

In K.K. v. M.M. (Ont CA, 2021) the Court of Appeal commented on the over-extensive quoting of evidence in reasons for decision (the obverse of the 'reasons' issue of inadequate citing of evidence):
[22] Nevertheless, there are portions of the reasons that contain lengthy verbatim summaries of evidence. This court has recently raised concern about these types of recitations of the evidence in reasons for judgment: see Welton v. United Lands Corporation Limited, 2020 ONCA 322, 64 C.C.E.L. (4th) 265, at paras. 56-63; R.F. v. J.W., 2021 ONCA 528, at para. 34, n. 7; N. v. F., 2021 ONCA 614, 62 R.F.L. (8th) 7, at para. 266, n. 14, per Lauwers J.A. (dissenting), leave to appeal granted, [2021] S.C.C.A. No. 364.

[23] Trial judges are not obliged to refer to every piece of evidence that is introduced at trial. All a trial judge must show is that they have grappled with the essential issues raised in the litigation. Given the narrow issues raised in this case – the best interests of the children – these verbatim summaries and, consequently, the length of the reasons, are problematic. One of the purposes behind the requirement to give reasons is to identify the issues to be resolved and to distill the evidence down to the facts that are relevant to those issues: see generally, R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. The wholescale repetition of all the evidence heard does not fulfill that purpose. It does not help the parties who may be unable to understand the central basis for the decision reached. It does not help counsel in terms of their ability to understand and identify possible grounds of appeal. Finally, it does not help this court which must, among other things, then determine if extraneous facts influenced the trial judge’s analysis.


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Last modified: 23-07-24
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