Simon's Megalomaniacal Legal Resources

Appeal-Judicial Review - Reasons - Sufficiency for Review

. First of Five Incorporated v. Recipe Unlimited Corporation

In First of Five Incorporated v. Recipe Unlimited Corporation (Div Court, 2024) the Divisional Court allowed an appeal of a lower court order, which order denied an interlocutory injunction to preserve the continuation of a commercial lease pending the resolution of a lease renewal and termination dispute.

The court considered (an allowed) an argument of 'inadequate reasons', here where they didn't allow for appellate review:

[41] However, no deference is owed in a case where the appellate court cannot understand the legal basis for the decision, or the factual findings made in support of the decision: Barbieri v. Mastronardi, 2014 ONCA 416, at para. 23; Penate (Litigation Guardian of) v. Martyn Estate, 2024 ONCA 166, at para. 20.

[42] In deciding whether reasons are sufficient, the Court considers various factors. As noted by the Court of Appeal in Gholami v. The Hospital of Sick Children, 2018 ONCA 783, at para. 63:

[63] Appellate intervention may be warranted where the insufficiency of trial reasons prevents meaningful appellate review. Reasons that permit meaningful appellate review justify and explain the result, inform the losing party why he lost, enable informed consideration as to whether to appeal and enable the public to determine whether justice has been done…. [Citations omitted.]

[43] Even if the reasons, on their face, do not reveal the reasons for the decision, a reviewing court must look at the record as a whole to determine whether the reasons are more comprehensible when considered in the context of the record as a whole: Gholami, para. 64.

. 1307839 Ontario Limited et. al. v. Klotz Associates et. al.

In 1307839 Ontario Limited et. al. v. Klotz Associates et. al. (Div Court, 2024) the Divisional Court considered the adequacy of reasons (here, for an order), here where they were inadequate to enable appellate review:

Discussion

[28] In our view, the appeal must succeed on the ground that the failure of the motion judge to give reasons has deprived this court of its ability to address the substantive issue of the abrogation of privilege.

[29] The modern approach to considering the sufficiency of reasons for a ruling or verdict and whether it constitutes an error of law is as found in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. At para. 28 of that decision, the Supreme Court of Canada held: “[t]he simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.”

...

[31] Appellate courts will not interfere where “the reasons demonstrate that the trial judge has considered the important issues in a case, or where the record clearly reveals the trial judge’s reasons, or where the evidence is such that no reasons are necessary”: see R. v. R. (D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291, [1996] S.C.J. No. 8, at para. 55; Van Decker Estate v. Van Decker, 2022 ONCA 712, 163 O.R. (3d) 227. Therefore, when considering the sufficiency of reasons, appellate courts should take them as a whole, in the context of the evidence, the arguments and the proceeding itself, appreciating the purposes or functions for which they were delivered: R. v. M. (R.E.), at para. 16.

[32] The motion judge was required to review the record before her and make a determination whether privilege had been expressly or impliedly waived by the plaintiffs. The reasons do not contain necessary findings of fact that there has been a waiver of the privileges or that the pleadings against the defendants were sufficient to destroy the privileges. The reasons lack any legal analysis as it relates to the abrogation of the solicitor-client privilege and settlement privilege attaching to the plaintiffs’ documents, so it is not possible for this court on appeal to understand the legal basis for the motion judge’s decision. There is also nothing showing the motion judge’s balancing of the principles of fairness and consistency with the importance of solicitor-client privilege or settlement privilege.

[33] We do not accept the defendants’ submission that, by virtue of the plaintiffs pleading in the statement of claim that the Klotz defendants acted as their legal counsel in the Vachon Litigation and that they were forced to settle that litigation because of the defendants’ conduct, it is obvious the plaintiffs waived privilege. This cannot be accepted on the motion judge’s paucity of reasons – did she find privilege was waived because of the plaintiffs’ pleadings and, if so, which pleadings? Did she find that the plaintiffs had put their state of mind in issue and, if so, how? This is important because it affects not only whether privilege is waived but also the scope of the production order. Since we do not have reasons to determine how the motion judge reached her conclusion, we cannot determine whether it is correct that privilege was waived; and, if it was correct, we cannot determine whether the order was appropriately tailored.

[34] Since this court is unable to conduct a meaningful review of the motion judge’s reasons, we are compelled to grant the appeal and set aside the impugned part of the Order.

. Tenn-Lyn v. Mackenzie Health

In Tenn-Lyn v. Mackenzie Health (Div Court, 2023) the Divisional Court considered the 'must allow appellate review' function of reasons for decision:

(e) The HPARB Appropriately Analyzed the Criteria for Non-renewal and Revocation

[70] Finally, with respect to the Appellant’s argument that the HPARB failed to include an analysis of the by-law criteria for a non-renewal or revocation, paragraphs 74 and 214 of the decision did, indeed, consider the test set out in the PHA, the by-law, and the relevant case law to support the conclusion that Dr. Tenn-Lyn’s conduct met the criteria for an immediate revocation.

[71] The reasons sufficiently explained what was decided and why that decision was made.

[72] In Law Society of Upper Canada v Neinstein, at para 6, the Ontario Court of Appeal decided that where there is a right of appeal from a decision, reasons must provide a sufficient window into the decision to allow meaningful appellate review to the extent contemplated by the permitted scope of the appeal. Reasons for a decision that describe both what is decided and why that decision was made are susceptible to effective appellate review. Whatever other shortcomings may exist in reasons that adequately explain the “what” and the “why”, those shortcomings will not render the reasons so inadequate as to justify appellate intervention on that basis.[21] [Law Society of Upper Canada v Neinstein, 2010 ONCA 193 at para 61].

. Willick v. Willard

In Willick v. Willard (Ont CA, 2023) the Court of Appeal considered when reasons for decision are adequate for appeal purposes:

(4) Did the trial judge’s reasons provide an adequate basis for the appeal?

[57] It is trite law that a meaningful right of appeal “must not be an illusory right,” as it would be if the reasons provided by the judge for their decision were insufficient: R. v. Richardson (1992), 1992 CanLII 7710 (ON CA), 9 O.R. (3d) 194 (C.A.), at para. 13. In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55, Binnie J. stated that: “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.” This is an assessment that the appeal court itself is in the best position to undertake; failing that functional test is an error of law.

[58] The onus is on the appellant to show an actual error or that the reasons frustrate appellate review: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 79. In Farej v. Fellows, 2022 ONCA 254, at para. 46, Doherty J.A. noted that the Supreme Court in G.F. “recently cautioned against appellate courts reviewing trial judge’s reasons with an overly critical eye, especially in cases turning on credibility assessments”: citing G.F., at paras. 74-76. While an appeal court “must be rigorous in its assessment,” merely raising an ambiguity or an uncertainty in the reasons is insufficient to justify appellate intervention; “the appeal court must determine the extent and significance of the ambiguity”: G.F., at para. 79. To generalize this proposition, the flaw in the reasons must render doubtful both the trial judge’s chain of reasoning and the outcome of the case.

[59] Where the reasons are deficient in explaining the result to the parties, and the appeal court does not consider itself able to do so, a new trial may be needed. This is a case-specific assessment. To order a new trial in a civil matter, the court must be satisfied that “the interests of justice plainly require that to be done”: Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), at para. 68. There must be a real prospect “that a substantial wrong or miscarriage of justice has occurred”: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6); Vokes Estate v. Palmer, 2012 ONCA 510, 294 O.A.C. 342, at para. 7; Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at para. 23.

[60] In my view, the appellants have not met their onus of showing that the trial judge made an actual error or that his reasons frustrate appellate review, for two reasons. First, the reasons in this case are not perfect, but they are adequate for appellate review, which I was able to undertake in the preceding reasons.[1] Second, the focus of the appellants’ complaint was on the trial judge’s speculation about whether an intervening event caused Mr. Willick’s death. As I have explained, once the trial judge determined that the doctors had not breached their respective standards of care, there was no act or omission on anyone’s part that could, in legal terms, have caused Mr. Willick’s tragic death. That aspect of his reasons was not relevant to the outcome of the case. This asserted flaw in the trial judge’s reasons does not render doubtful his chain of reasoning or the outcome of the case.

. R. v. J.C.

In R. v. J.C. (Ont CA, 2023) the Court of Appeal comments on the adequacy of reasons:

[5] Appellate intervention is justified where deficiencies in the reasons amount to an error of law because they foreclose meaningful appellate review: Sheppard, at paras. 25, 28. Appellate review of the sufficiency of reasons follows a functional approach and, proceeding with deference, requires the reading of the reasons in the context of the evidence, the submissions of counsel and the live issues at trial: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 55.

. Levac v. James

In Levac v. James (Ont CA, 2023) the Court of Appeal considered the 'inadequate reasons' ground that the reasons for decision frustrate appellate review:

[76] The adequacy of reasons must be determined functionally based on whether they permit meaningful appellate review. If they do, then an argument that the reasons are inadequate fails, despite any shortcomings: Farej v. Fellows, 2022 ONCA 254, leave to appeal to S.C.C. requested, 40198, at para. 45. Adequacy is contextual, and includes the issues raised at trial, the evidence adduced, and the arguments made before the trial judge. In general, reasons are to be read as a whole with the presumption that the trial judge knows the record and the law and has considered the parties’ arguments.

[77] In R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 74-76, the Supreme Court of Canada cautioned against appellate courts reviewing trial judge’s reasons with an overly critical eye, especially in cases turning on credibility assessments. The majority stated, at para. 79:

To succeed on appeal, the appellant’s burden is to demonstrate either error or the frustration of appellate review. Neither are demonstrated by merely pointing to ambiguous aspects of the trial decision. Where all that can be said is a trial judge may or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellate review. Where ambiguities in a trial judge’s reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error. It is only where ambiguities, in the context of the record as a whole, render the path taken by the trial judge unintelligible that appellate review is frustrated. An appeal court must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole and determining whether or not the trial judge erred or appellate review was frustrated. It is not enough to say that a trial judge’s reasons are ambiguous – the appeal court must determine the extent and significance of the ambiguity. [Emphasis added.] [Citations omitted.]

. R. v. Burgess

In R. v. Burgess (Ont CA, 2022) the Court of Appeal made these useful comments in a criminal case about the need for reasons, focussing on legal sufficiency:

[23] There is no doubt that if this were a jury trial, the judge would have been required to give a Carter instruction. It is good practice for trial judges in non-jury criminal trials to self-instruct on difficult issues where the risk of error is real, if only by adverting to the leading authority.

[24] I am mindful of the Supreme Court’s reminder in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th), at para. 74:

Legal sufficiency requires that the aggrieved party be able to meaningfully exercise their right of appeal: Sheppard, at paras. 64-66. Lawyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred: paras. 46 and 55. Legal sufficiency is highly context specific and must be assessed in light of the live issues at trial. A trial judge is under no obligation to expound on features of criminal law that are not controversial in the case before them. This stems from the presumption of correct application - the presumption that "the trial judge understands the basic principles of criminal law at issue in the trial": R.E.M., at para. 45. As stated in R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 664, "Trial judges are presumed to know the law with which they work day in and day out": see also Sheppard, at para. 54. A functional and contextual reading must keep this presumption in mind. Trial judges are busy. They are not required to demonstrate their knowledge of basic criminal law principles.

Observe that there is a tension between the first and second principles mentioned in para. 74. The first principle is that “[l]awyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred” by looking at the trial judge’s reasons and the results. The second principle, which stands in tension with the first, is that trial judges do not always have to set out the applicable law because they are presumed to know and understand the basic principles at issue in the trial. This tension comes to the fore in cases in which the principles at play are neither straightforward nor routine parts of a trial judge’s work, like this one. The Carter rule and its corollary or obverse are not part of criminal law’s routine basic principles, in the way, for example, that the principles of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, would be, the recitation of which is no longer required: R. v. Stairs, 2007 ONCA 464, 225 O.A.C. 103, at para. 16; R. v. F.B.P., 2019 ONCA 157, at para. 12. Based on experience, I agree with the trenchant and understated observation that “it is obvious that the admissibility of evidence of co-conspirators is complex — even for judges”: David M. Paciocco, Palma Paciocco, Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law Inc., 2020), at p. 206.

[25] Because the trial judge in this case did not expressly self-instruct on what I have called the corollary or obverse to the Carter rule, this court is left to consider the text of his reasons and what he appeared to do with the inadmissible hearsay evidence, in order to discern whether he misused it. This is what I now proceed to do.