Simon's Megalomaniacal Legal Resources

Appeal-Judicial Review - Reasons - Citing Law

. LeGrand v. LeGrand

In LeGrand v. LeGrand (Div Court, 2023) the Divisional Court considered a judge's duty to cite law (or not) in their reasons for decision:

The Criminal Standard of Proof and the Presumption of Innocence Were Applied

[33] The motion judge is taken to know the law. In this case, the record established an overwhelming case against the father. He was given a chance to remedy his breaches of the consent orders. He did not. His sole defence was that he bore no responsibility for their daughters’ refusal to resume living with their mother or to return to their previous school. This defence was rejected by the motion judge. A motion judge need not explicitly set out the burden of proof or the presumption of innocence for her decision to withstand appellate scrutiny so long as it is clear on the record that she was alive to and applied the law and had a sufficient evidentiary basis for her conclusions.

[34] The fact that the motion judge did not explicitly set out an analysis regarding the burden of proof is not a basis for an appellate court to intervene. As set out in 2363523 Ontario Inc. v. Nowack 2016 ONCA 951, at para 26, a judge is not required to expressly set out the test in his or her reasons. Here, it is abundantly clear that Justice Hughes had informed herself of the relevant principles and was well aware of the tests to be applied when making a finding of contempt. It was also clear what steps were required for the father to purge his contempt.

. Hackman v. TSCC No. 1978

In Hackman v. TSCC No. 1978 (Div Court, 2023) the Divisional Court considered an appeal from a decision of the Condominium Appeal Tribunal (CAT). In these quotes the court considers an argument of 'inadequate reasons', here an allegation that the CAT failed to explain a jurisdictional issue [relating to CA s.117]:

[6] Mr. Hackman has brought this appeal of the CAT decision under s. 1.46 of the Act, which permits appeals on questions of law. Otherwise, an order of the Tribunal is final and binding. ...

....

1. Adequacy of reasons given

[8] The substance of Mr. Hackman’s appeal on the adequacy of reasons given by Mr. Cook concerns his defence to the claim that he breached the settlement agreement to live by the declaration, by-laws and rules of the corporation. What Mr. Hackman has done is in effect mounted a classic strategy of using an offence to defend that claim. In that offence, he alleged that TSCC No. 1978 and its directors caused him psychological harm by sending him notices, contrary to the rules against the corporation behaving in a rude or aggressive manner. Mr. Hackman submits that the CAT did not deal with this part of his defence or give adequate reasons for not doing so, giving rise to a question of law.

[9] The Tribunal did not err in concluding that it did not have jurisdiction to deal with Mr. Hackman’s complaints of harassment resulting in psychological injury. Section 1 of O. Reg. 179/17 defines the scope of disputes over which the CAT has jurisdiction. Pursuant to s. 1(1)(c.1) of the Regulation, the CAT has jurisdiction over a dispute with respect to s. 117(2) of the Act. However, under s. 1.36(4) of the Act, the CAT does not have jurisdiction over a dispute with respect to s. 117(1).

[10] On appeal, the Appellant submits that the CAT failed to give adequate reasons for declining to exercise its jurisdiction under s. 117(2) of the Act. However, it is clear the appellant relied on s. 117(1) when arguing before the CAT as opposed to s. 117(2). In the Appellant’s written submissions to the CAT, he stated that s. 117 prohibits any person from causing injury to persons or property of the corporation. Only subsection (1) refers to injury; subsection (2) does not. As a result, the Appellant did not specifically put forward s. 117(2) as a basis for the CAT to exercise jurisdiction over his complaints about harassment.

[11] The modern basis to consider the absence or insufficiency of reasons for a ruling or verdict as an error of law is found in R. v. Sheppard, 2002 SCC 26 and has been followed consistently by the appellate courts ever since. In R. v. R.E.M., 2008 SCC 51, the Supreme Court explained that reasons given by a court in Canada must enable the courts to perform the functions that reasons are expected to serve. This includes the sufficiency of reasons to explain the basis for the decision made, and to allow for meaningful appellate review. At that level, deficiencies of reasons can amount to an error of law: R. v. J.C., 2023 ONCA 101, at paras. 4 and 5. An appeal arises from the judgment itself, not the reasons given for the judgment rendered.

[12] There was no need for Mr. Cook to go further in his reasons than to identify that the CAT has no jurisdiction to hear complaints under s. 117(1) of the Act. The sufficiency of the reasons is measured by the succinctness of the correctness of his legal conclusion. That succinct conclusion is enough to provide the basis for the decision made, and to permit appellate review, as it has here.

. R. v. Bakal

In R. v. Bakal (Ont CA, 2023) the Court of Appeal commented on when a judge need not cite precedent:

[26] I disagree. An experienced trial judge like this one is presumed to be conversant with legal principles routinely applied which include the W.(D.) principles and their application. The court is not obliged to self-instruct on those principles: R. v. Daguio, 2018 ONSC 1510 at para. 11.