Rarotonga, 2010

simonshields@isthatlegal.ca

Online Lawyer

Most Popular
Contracts / Torts / Evidence / Limitations / Tenant Plus / welfare (ontario works) / odsp / human rights / employment / consumer / COVID Litigation
ADMINISTRATIVE LAW | SPPA / SMALL CLAIMS / SUPERIOR COURT / APPEALS / JUDICIAL REVIEW

home / about / Little Friends Lefkada (Greece) / testimonials / E-Colleagues / Conditions of Use

Civil and
Administrative
Litigation
Intake

Affiliates
Canadian Animal Law

Reasons II

. Dovbush v. Mouzitchka

In Dovbush v. Mouzitchka (Ont CA, 2016) this Court of Appeal case the court expounded usefully on the issue of sufficiency of reasons for judgment:
The Insufficiency of Reasons

[19] While the trial judge expressed conclusions and made findings that may or may not have been open to him on the record, we reluctantly conclude that his reasons are insufficient to permit meaningful appellate review and that appellate intervention is warranted in the circumstances.

The Applicable Principles

[20] Trial judges are called upon to make difficult decisions, often in difficult circumstances. They preside as the particular dynamics of the trial unfold. Inadequate reasons therefore pose a particular challenge for appellate review.

[21] On the one hand, as Rothstein J. noted in F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] 3 S.C.R. 41, at para. 99, “an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is the failure to give adequate reasons a free standing basis for appeal.” On the other hand, beginning with the companion cases of R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, and R. v. Braich, 2002 SCC 27 (CanLII), [2002] 1 S.C.R. 903, Canadian jurisprudence has confirmed the importance of trial judges providing adequate reasons for their decisions, and accepted that if the insufficiency of the reasons prevents meaningful appellate review, appellate intervention may be justified: see also R. v. R.E.M., 2008 SCC 51 (CanLII), [2008] 3 S.C.R. 3, at paras. 10-35.

[22] Although originally developed in the criminal law context, the same rationale that underpins the duty to provide adequate reasons applies in the civil context as well, with necessary modifications: Canadian Broadcasting Pension Plan v. BF Realty Holdings Ltd. (2002), 2002 CanLII 44954 (ON CA), 160 O.A.C. 72 (C.A.), at paras. 64 and 114; Diamond Auto Collision Inc. v. The Economical Insurance Group, 2007 ONCA 487 (CanLII), 227 O.A.C. 51, at paras. 10-14; and Longo v. MacLaren Art Centre, 2014 ONCA 526 (CanLII), 323 O.A.C. 246, at paras. 62-64. The rationale is that reasons are necessary (i) to justify and explain the result; (ii) to tell the losing party why he or she lost; (iii) to provide public accountability and satisfy the public that justice has been done and is seen to have been done; and (iv), to permit effective appellate review: F.H. v. McDougall, at para. 98.

[23] What makes reasons run afoul of this rationale? In the end, for purposes of appellate intervention, it turns on the overarching principle of whether the reasons permit meaningful and effective appellate review. Appellate courts will take a contextual and functional approach to addressing whether reasons meet this standard. The exercise has been variously described as one of determining whether the reasons demonstrate: “the path taken by the trial judge through confused or conflicting evidence” (Sheppard, at para. 46); or that “the trial judge came to grips with the issues and explained sufficiently his … conclusions and the reasons and basis for them” (Canadian Broadcasting Corporation Pension Plan, at para. 114); or, the “what” and the “why” of the result (R.E.M., at paras. 17-20).

[24] In R.E.M., at paras. 17-18, the Supreme Court of Canada adopted the reasoning of Doherty J.A. in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), with respect to the object of a trial judge’s reasons. The Court said:
Doherty J.A. in Morrissey, at p. 525, puts it this way: "In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision" (emphasis added). What is required is a logical connection between the "what" - the verdict - and the "why" - the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.

Explaining the "why" and its logical link to the "what" does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict. Doherty J.A. in Morrissey, at p. 525, states:
A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. [Emphasis added.]
[25] In R.E.M. as well, at para. 29, the Court underlined its earlier comment in Sheppard, at para. 55, emphasizing the importance of the need for adequate reasons when “a trial judge is called upon to address troublesome principles of unsettled law or to resolve confused and contradictory evidence on a key issue” (emphasis added).

.....

[29] Generic boiler-plate findings of credibility of that nature are not helpful. A trial judge owes the losing party an explanation for rejecting the evidence of a key witness or witnesses (particularly when the key witnesses are, themselves, the losing parties), and, while the absence of such an explanation is not necessarily dispositive, it may go a long way toward putting the reasons beyond the reach of meaningful appellate review: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37 (C.A.), at para. 36, citing R. v. Maharaj (2004), 2004 CanLII 39045 (ON CA), 186 C.C.C. (3d) 247, at paras. 26-29 (Ont. C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 340.
. The Birkshire Group Inc. v. Wilkes

In The Birkshire Group Inc. v. Wilkes (Ont CA, 2018) the Court of Appeal held that the failure of the trial judge to refer to testimony of a material witness was, in the particular facts of the case, an error of law:
[10] We disagree. Considering the record as a whole, including the fact that the trial judge reopened the case to hear the evidence of the two witnesses after determining that it could bear on the material issue of the respondents’ credibility, the trial judge’s failure to address this evidence in his reasons creates problems on appeal. Credibility played an important role in the trial, in which the central issue was the scope and terms of the home renovation contract. The trial judge rejected the evidence of the appellants on several points and he explained why he preferred the evidence of the respondents. If Mr. Derewonko’s evidence had been accepted, it would have meant that a drawing that was introduced by the respondents at trial as being contemporaneous with Birkshire’s work, was created well after the litigation had commenced. Such evidence could have had a material effect on the credibility of the respondents, and indeed on the administration of justice.

[11] Although we specifically refrain from commenting upon the credibility of the evidence led by the appellants when they re-opened their case, it was incumbent on the trial judge to at least advert to the evidence and resolve it. This is particularly true given that the trial judge had pre-determined the materiality of the evidence, acknowledging that it was sufficiently probative of credibility to justify the exercise of his discretion in favour of re-opening the case.

[12] As this court noted in Dovbush v. Mouzitchka, 2016 ONCA 381 (CanLII), 131 O.R. (3d) 474, at para. 29, “[a] trial judge owes the losing party an explanation for rejecting the evidence of a key witness or witnesses … and, while the absence of such an explanation is not necessarily dispositive, it may go a long way toward putting the reasons beyond the reach of meaningful appellate review”. Unfortunately, that is the result in the present case. In the absence of any mention of these witnesses, and having regard in particular to the potential importance of Mr. Derewonko’s evidence to the question of the respondents’ credibility, it is impossible to know whether and why the trial judge accepted or rejected the evidence or if it impacted his credibility findings.
. Gholami v. The Hospital of Sick Children

In Gholami v. The Hospital of Sick Children (Ont CA, 2018) the Court of Appeal canvasses some themes useful to deciding when reasons for decision are adequate:
[62] This brings us to the next issue. The appellant alleges that the reasons of the trial judge are devoid of a meaningful explanation for her findings of fact and that they prevent proper appellate review. In particular, the appellant contends that the trial judge failed to provide adequate reasons with respect to issues of credibility.

[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: R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, at para. 24; Diamond Auto Collision Inc. v. The Economical Insurance Group, 2007 ONCA 487 (CanLII), 227 O.A.C. 51, at para. 11; Dovbush v. Mouzitchka, 2016 ONCA 381 (CanLII), 131 O.R. (3d) 474, at paras. 21-22; see also R. v. R.E.M., 2008 SCC 51 (CanLII), [2008] 3 S.C.R. 3, at paras. 10-35. Appellate courts take a contextual and functional approach to determining whether reasons permit meaningful and effective appellate review.

[64] Even if the reasons of the trial judge do not on their face reveal "what" was decided and "why" it was decided, this court is obliged to consider the trial record to determine if the reasons are more comprehensible when read in that context: Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231, 2015 ONCA 520 (CanLII), 389 D.L.R. (4th) 711, at paras. 30-32. This is desirable as it eliminates the expense and delay associated with another trial.

[65] It is well-established that a trial judge is not required to reconcile or refer to every discrepancy in the evidence. A particular challenge arises when credibility findings are required but not made, or if no analysis for the rejection of important conflicting evidence is provided. Where a case turns largely on a determination of credibility, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error: R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at para. 26 and Dovbush, at paras. 28-29.

[66] We agree that the trial judge failed to explain her findings and conclusions on the issues of bad faith and defamation. She simply recited the respondents’ legal position and indicated that she agreed with it. She did not resolve the conflicting evidence between the appellant’s and respondents’ diametrically opposed versions of events. Nor can we determine the basis for the trial judge’s credibility findings that were central to the determination of that dispute.
. Barbieri v. Mastronardi

In Barbieri v. Mastronardi (Ont CA, 2014) the Court of Appeal addressed the extent and nature of detail required of a judicial decision-maker when issuing reasons for judgment, though the principles expressed might be applicable to quasi-judicial tribunal decisions as well:
[22] In order to allow for meaningful appellant review, the decision of the court must, at a minimum, provide some insight into how the legal conclusion was reached and what facts were relied upon in reaching that conclusion: R. v. Sheppard, 2002 SCC 26 (CanLII), 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24, 55; and Crudo Creative Inc. v. Marin 2007 CanLII 60834 (ON SCDC), (2007), 90 O.R. (3d) 213 (Div. Ct.).
. R v D.H.

In R v D.H. (Ont CA, 2016), a criminal case, the Court of Appeal discusses the adequacy of a judicial reasons for adverse findings against the credibility of a witness, and their treatment on appeal:
[34] A trial judge’s assessments of credibility are accorded very considerable deference on appeal, as long as the trial judge has sufficiently explained how significant discrepancies that could undermine credibility and reliability have been resolved. This court recently reiterated that principle in R. v. M. (A.), 2014 ONCA 769 (CanLII), 123 O.R. (3d) 536, at paras. 17-19:
[W]here a case turns largely on determinations of credibility, the sufficiency of reasons must be considered in light of the deference generally afforded to trial judges on credibility findings. It is rare for deficiencies in a trial judge's credibility analysis, as expressed in the reasons for judgment, to warrant appellate intervention: Vuradin, 2013 SCC 38 (CanLII), [2013] 2 S.C.R. 639, at para. 11; Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at para. 26.

Nevertheless, the failure of a trial judge to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error: Vuradin, at para. 11; Dinardo, at para. 26; R. v. Braich, [2002] 1 S.C.R. 903, [2002] S.C.J. No. 29, 2002 SCC 27 (CanLII), at para. 23. After all, an accused is entitled to know why the trial judge had no reasonable doubt about his or her guilt: R. v. Gagnon, [2006] 1 S.C.R. 621, [2006] S.C.J. No. 17, 2006 SCC 17 (CanLII), at para. 21.

Similarly, we take it as self-evident that a legal error made in the assessment of credibility may displace the deference usually afforded to a trial judge's credibility assessment and may require appellate intervention.
[35] While a trial judge is not required to resolve every inconsistency in the evidence, the trial judge “should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 356; R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at para. 31”: M. (A.), at para. 14. As the Supreme Court stated in R. v. Dinardo, at paras. 26-27, the failure to articulate how credibility concerns are resolved, particularly in the face of significant inconsistencies in a complainant’s testimony, may constitute reversible error, as an accused is entitled to know why the trial judge is left with no reasonable doubt.
. National Gallery of Canada v. Lafleur de la Capitale Inc.

In National Gallery of Canada v. Lafleur de la Capitale Inc. (Ont CA, 2017) the Court of Appeal sets out principles applicable to the adequacy of judicial reasons:
[11] It is well-established that a judge is required to give reasons sufficient to permit meaningful appellate review of the correctness of the decision. This means that the judge’s reasons must allow the parties and the appellate court to discern why the judge reached his or her conclusions on key issues in circumstances which require an explanation: R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, at paras. 28 and 46.

[12] The critical question is whether what the judge has stated is sufficiently intelligible in the context of the record, the issues and the submissions of counsel, to show that the judge has seized the substance of the matter and has addressed the critical issues that he was required to decided: R. v. M. (R.E.), 2008 SCC 51 (CanLII), [2008] 3 S.C.R. 3, at paras. 37, 43 and 57.


CC0

The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.