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Reasons - Failure to Address All Evidence. Canada One Family Network v. Cach Platform Inc.
In Canada One Family Network v. Cach Platform Inc. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a commercial tenant's appeal, this brought against "an order terminating Canada One’s lease with Cach, granting Cach possession of the Property, ordering that Canada One pay Cach any arrears of rent and rent up to the date that Cach gained possession of the property and declaring that Ms. Zhu had no signing authority or control over Cach’s bank account at the Royal Bank and declaring that Wah Hui Lam, the principal of Cach had sole signing authority and control regarding that bank account".
Here the appeal court would limit appeal grounds to that "based on the evidence that was brought to the attention of the judge" - as opposed to that on record [para 29-31]:[25] Cach takes the position that this was not a motion for partial summary judgment. None of the material filed in support of the motion requested partial summary judgment and it was not referred to as a motion for summary judgment when it was scheduled by Koehnen J. The fact that Myers J. referred to it as a motion for partial summary judgment does not mean that is what it was. Rather, it was a motion for injunctive relief and for relief under Part III of the Commercial Tenancies Act.
[26] Regardless of how this motion is characterized, Myers J. made a finding that the Order was a final order. This finding has not been appealed. Therefore, it is appropriate to examine whether the motion judge should have made a final order in the circumstances of this case. The concerns with doing so are same as the ones that have been highlighted by the Court of Appeal with reference to partial summary judgments.
[27] The motion judge found that the record before him was uncontested. Subsequent to the argument of this appeal the panel found that there was a transcript of a cross-examination of Ms. Zhu that was not filed or adverted to during the hearing of the appeal, but that was before the motion judge. The transcript was referred to by Cach during its submissions but not by Canada One during its submissions. The panel wrote to counsel requesting that they make submissions on the issue of whether the transcript, which did contain answers from Ms. Zhu contesting some of the key facts asserted by Cach, meant that the motion judge erred when he found that the record before him was uncontested.
[28] The Appellants’ submitted that the motion judge did err and that this error was material. In doing so they pointed to those portions of the transcript that they assert contest the facts put forward by Cach.
[29] The problem with this submission is that the Appellants did not refer the motion judge to those portions of the transcript during the hearing before him. As put by the Divisional Court in Cannon v. Geritz, 2022 ONSC 6867 (Div. Ct.):[37] A determination of whether a judge committed a reversible error can only be made by examining whether that judge rendered a decision and made appropriate decisions based on the evidence that was brought to the attention of the judge. To suggest otherwise is to invite litigation chaos and uncertainty. If judges are required to look for additional language in a document that has not been clearly brought to their attention by a litigant with respect to an issue that was not put in issue on the motion, the decision-making process would be endless. That result runs contrary to the goals of our adversary system. (emphasis added). [30] In Wasyluk v. Simcoe (County), 2023 ONCA 781, the Court of Appeal states the following:[15] When reviewing a trial judge’s reasons for palpable and overriding error, this court must consider the reasons as a whole in the context of the issues raised and the arguments made. Faraj v. Fellowes, [2022] ONCA 254, at para. 45. It is not enough for an appellant to point to an ambiguity, inconsistency, omission, or other shortcoming in some aspect of the trial judge’s reasons. Appeal courts do not exist to grade the reasons of trial judges. Appellate courts must determine, on a fair and full reading of the record as a whole, whether the appellant has demonstrated reversible error. When the alleged error targets the fact-finding process at trial, deference sounds the loud key-note for appellate review. [31] In my view, it was not a reversible error for the motion judge not to consider evidence that was never brought to his attention during the hearing before him. I note again that this evidence was also not adverted to by counsel during the appeal before us.
[32] My view on this is not changed by the fact that the Appellants did not have a lawyer. To put the onus on a motion or trial judge to dig through the record to find material that may support the position of a self-represented litigant is to risk distorting the adversarial process by turning the judge into an advocate for the self-represented litigant. That is not and cannot be the judge’s role: College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, 93 O.R. (3d) 139, at paras. 57-59.
[33] Thus, I find that the motion judge did not err when he found that evidence before him was uncontested. The issues before him were urgent and he was in a position to make the findings he did in an efficient and cost-effective way. This fostered justice, rather than impeding it.
[34] The real concern is the danger of inconsistent findings at trial. This concern was discussed by Myers J., particularly with reference to the question of which lease was the valid lease. In addition, there is the question of who the owners of Cach actually were. While the motion judge did not specifically find that the five-year lease was the only valid lease, as Myers J. noted, he proceeded on this assumption. He also made findings that Mr. Lam was the only director of Cach and that the only person entitled to control it. If found to be binding these findings could prejudice the Appellants’ damages claim at trial.
[35] The question then becomes whether it is an error for a judge to make a final order on an uncontested record because of the possibility that at trial the record may in fact be contested. In my view it is not. First, if a trial judge chooses to make a different factual finding than the motion judge did, it will be easy to explain why. Second, as the law on summary judgment motions make clear, a party to a summary judgment motion must put their best foot forward or risk losing. In this case, the Appellants lost because of their failure to advert to any admissible evidence or to point the motion judge to any documents in support of their position. In the face of this failure, it would be an injustice not to grant urgent relief when the only evidence brought to the attention of the motion judge was in support of the relief being granted.
[36] Thus, even if the Appellants are correct and the Order is an order for partial summary judgment, the motion judge did not err in granting the Order. . Geddes v. Chief Animal Welfare Inspector
In Geddes v. Chief Animal Welfare Inspector (Div Court, 2024) the Divisional Court dismisses a JR against the Animal Care Review Board (ACRB) under the PAWS animal welfare regime. The ACRB decisions confirmed orders that "certain animals— which had been removed from the Applicant’s property by Animal Welfare Services (“AWS”) — should not be returned to the Applicant. The Board also confirmed seven Statements of Account (“SOA”), payable by the Applicant in the total amount of $105,059.35."
The court comments on a presumption on assessing the adequate of reasons in the administrative context:[44] Administrative decision makers are presumed to have weighed and considered all the evidence unless it is proven otherwise. The fact that a piece of evidence is not mentioned does not mean that it was ignored: Arvan v. Canada (Citizenship and Immigration), 2024 FC 223, at para. 20. Only where a decision maker does not deal with evidence that “squarely contradicts” its reasoning and conclusions will that render the decision unreasonable: Arvan, at para. 21. . Tenn-Lyn v. Mackenzie Health
In Tenn-Lyn v. Mackenzie Health (Div Court, 2023) the Divisional Court considers the extent to which a tribunal needs to address the presented evidence in it's reasons:[56] HPARB is not required to address all of the evidence in its reasons [11] [Nfld and Labrador Nurses’ Union v Nfld and Labrador Treasury Board, 2011 SCC 62 at para 16]. This court considered this issue in Dr. Tenn-Lyn’s last appeal of the HPARB decision in her case against Trillium Health Partners, noting that HPARB has no obligation to “address each and every detail of the evidence and to explain why the Board did not accept each and every detail of the appellant’s version of events”.[12][Tenn-Lyn v Trillium Health Partners, 2022 ONSC 6329 at para 15. See also Caine v Ontario College of Teachers 2022 ONSC 2592 at para 51 citing R v Sheppard, 2002 SCC 26 at paras 33, 42, 53]. A decision maker not mentioning evidence “does not necessarily lead to a finding of palpable and overriding error”.[13][Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157 at para 66].
[57] The hearing before HPARB in this matter was about one issue - whether Dr. Tenn-Lyn met the criteria for reappointment and whether her conduct met the criteria for revocation pursuant to the By-laws.
[58] A determination of whether reasons fulfill their purpose and allow for effective appellate review can only be made by examining those reasons in the context of proceedings that gave rise to the reasons. The context includes the nature of the issues raised before the tribunal, the evidence adduced, and the submissions made. For example, in a one-issue case the adequacy of the reasons given will turn on the treatment of that issue in the reasons and not on the treatment of matters that were peripheral or unchallenged at trial but have been the focus of the appeal.[14] [Law Society of Upper Canada v Neinstein, 2010 ONCA 193 at para 62].
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