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Reasons III

. R v Powell

In R v Powell (Ont CA, 2021) the Court of Appeal set out principles dealing with adequacy of reasons:
[54] An appeal based on insufficient reasons can only succeed if the appellants establish that the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: R. v. Vlaski, 2019 ONCA 927, at para. 9, leave to appeal refused, [2020] S.C.C.A. No. 78; R. v. Vuradin 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10.

[55] Appellate courts considering the sufficiency of reasons “should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16. These purposes “are fulfilled if the reasons, read in context, show why the judge decided as he or she did”: R.E.M., at para. 17.

[56] The key question is whether the reasons demonstrate that the trial judge seized upon the substance of the critical issues at trial in a way that permits meaningful appellate review: R.E.M., at para. 55.

....

[59] The trial judge’s reasons are not deficient simply because he did not identify the precise actions of each appellant in the assault. It is clear when his decision is read as a whole that he accepted testimony that the appellants participated in a group assault in which everyone was punching and kicking Quinn. A trial judge is not held to a standard of perfection: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55. The trial judge need not detail their findings on each piece of evidence, so long as the findings linking the evidence to the verdict can be logically discerned: R.E.M, at paras. 16-29 and 43.
. Feinstein v. Freedman

In Feinstein v. Freedman (Div Ct, 2021) the Divisional Court states principles relating to adequate reasons for decision:
[46] A trial judge’s reasons for decision serve three main functions: to explain why the decision was made, to provide accountability, and to permit appellate review: R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51, at para. 11. The ability of the reasons to fulfill this last function is the yardstick against which their adequacy is measured. As Binnie J. succinctly put it on behalf of the Supreme Court of Canada in Sheppard (para. 28):
The 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.
[47] Although R.E.M. and Sheppard were criminal cases, the principles expressed in those case apply equally to civil cases such as this one: D.M. Drugs Ltd. v. Barry Edward Bywater (Parkview Hotel), 2013 ONCA 356, at para. 35; Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231, 2015 ONCA 520, at para. 13.

....

[49] I start by acknowledging why the appellants might question the adequacy of the trial judge’s reasons in this case. The trial lasted eleven days. The trial judge reserved his decision for more than seven months, and then delivered only five pages of typewritten reasons with handwritten corrections. However, the adequacy of reasons is not measured by word count, nor are the reasons required to stand on their own. In R.E.M., the Supreme Court pointed out that reasons for decision must be read in the context in which they were delivered (para. 16):
It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A.), at p. 524).
. 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.
. Champoux v. Jefremova

In Champoux v. Jefremova (Ont CA, 2021) the Court of Appeal considered the standard for reasons for decision:
[18] The law regarding insufficient reasons is well established. Reasons serve many functions, they: (i) justify and explain the result; (ii) tell the losing party why they lost; (iii) provide public accountability and satisfy the public that justice has been done and is seen to have been done; and (iv), permit effective appellate review: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 98. Meaningful appellate review is precluded if the decision of the court below does not provide some insight into how the legal conclusion was reached and what facts were relied on in reaching that conclusion: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 63.

[19] When reasons do not fulfill one or more of their functions, it may be necessary for the appellate court to send the matter back to the court below for a new hearing. This is hardly a desirable result, given the wasted costs of the first hearing and the delay in having the case determined on the merits. Yet sometimes, this rather drastic result is necessary to protect the judicial system’s integrity.

[20] As this court observed in Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), 2019 ONCA 293, 34 C.P.C. (8th) 144, at para. 93, leave to appeal refused, [2019] S.C.C.A. No. 228, the insufficient reasons ground of appeal appears with such frequency in this court that it is fast becoming a boilerplate ground of appeal. The court cautioned that the ground of appeal was being asserted in cases where there was no reasonable basis for arguing that the reasons for decision of the court below were anything other than straightforward. This is not such a case. Instead, this is a situation where the parties and the court are left to speculate on how the trial judge reached his conclusion on critical issues.
. Scott v. Toronto (City)

In Scott v. Toronto (City) (Div Ct, 2021) the Divisional Court considered a judicial review of a 'parking pad' permit denial by a municipal 'Community Council'. The court agreed that reasons for decision where not necessary as an aspect of procedural fairness:
No Duty to Provide Reasons

[47] The applicants argue that the Community Council had a duty to provide reasons as part of procedural fairness. I do not agree. Written reasons for decisions are not mandatory for all administrative decisions.

[48] The Community Council exercises powers delegated to it by City Council. It is comprised solely of elected Toronto city councillors. The City’s Procedure by-law does not require reasons. The larger context of the appeal, including the burden and impossibility of requiring elected representatives to provide reasons for the hundreds of items before a Community Council meeting, does not attract an obligation to provide written reasons. The Community Council’s decision-making process is not one that lends itself to producing a single set of reasons: Vavilov at para. 137

[49] A reviewing court must look to the record as a whole to understand the decision. Here, there is a clear rationale for the decision. Two councillors articulated their reasons. The Staff Report provided two bases for their recommendation, grounded in the regulatory scheme. Neighbours both opposed and supported the appeal. The Staff Report, the by-law, public deputations, submissions and the councillors’ duties informed their votes. The Court can discern a basis for the decision in the record. Procedural fairness does not require written reasons in the circumstances.
. Muise v. Mark Wilson’s Better Used Cars Limited

In Muise v. Mark Wilson’s Better Used Cars Limited (Div Ct, 2021) the Divisional Court considers inadequacy of reasons as a ground of appeal, here in an appeal from Small Claims Court:
[11] It has been recognized by the Supreme Court of Canada that sufficiency of reasons is not a "free-standing" or standalone ground of appeal. In R. v. Walker, 2008 SCC 34, para 20, Justice Binnie stated as follows:
… [t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself" (para 26). Reasons are sufficient if they are responsive to the case's live issues and the parties' key arguments. There sufficiency should be measured not in the abstract, but as they respond to the substance of what was an issue

...

The duty to give reasons "should be given a functional and purposeful interpretation" and the failure to live up to the duty does not provide "a freestanding right of appeal" or in itself confer entitlement to appellate intervention" (para 53).
[12] A reviewing court cannot assume that a trial judge did not consider certain issues simply because they are not referred to in the written decision: Papp v. Stokes, 2018 ONSC 1598 [Div. Ct.].

[13] It has been further held that although reasons may be less than ideal, they may still meet the requirements for sufficiency of reasons: Nicholson v. Gemnay, 2017 ONCA 187 at para 7. Furthermore, the Court of Appeal has also confirmed that it is not enough to establish that a trial judge "could have been more expansive" to justify appellate intervention. The trial judge is not required to respond to every argument, nor is she or he required to recite all the evidence or specifically articulate every relevant inference that has been drawn: Trillium Motor World Ltd v. Cassels Brock & Blackwell LLP, 2017 ONCA 544 at para 354.

[14] As to the duty of a deputy judge to identify and deal with credibility concerns and to assess both the credibility and reliability of a witness' evidence, there is a high level of deference owed to a trial judge with respect to findings of credibility. In his decision in Palac v. Coppola, 2011 ONSC 623 at para 11, McDermot J. noted:
It is even higher standard when it comes to findings of credibility by the trial judge: Although the "palpable and overriding" standard of review applies to all factual findings, the findings of fact grounded in credibility assessments are particularly difficult to disturb on appeal. Credibility assessments are inherently partly subjective and reflect the life experience of individual judges and their own perception of how the world works. Credibility assessments are also grounded in numerous, often unstated considerations which only the trial judge can appreciate and calibrate.
[15] As was stated in Housen it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence.

[16] It is not required that a trial judge detail every aspect of her decision if she prefers some evidence over other evidence and it is clear from the entirety of the record, the course of the proceedings or decisions on key evidence that by implication identify findings about other evidence: Urso v. Greater Sudbury (City), 2017 ONSC 1746 (Div. Ct.) at para 32.

[17] As to the sufficiency of reasons of a deputy judge sitting in the Small Claims Court the same principles as to the sufficiency of reasons apply even though that division of the Superior Court of Justice is a court of summary justice: Baptiste v. Obermuller, 2010 ONSC 6274 (Div. Ct.) at para 12.

[18] In Baptiste, Molloy J. stated as follows at para 12:
It is necessary to recognize the reality of a busy Small Claims Court. It must also be acknowledged that the delivery of a decision in a timely way is an important goal in that court. Nevertheless, fundamental principles of fairness and natural justice require a reasoned decision. As Binnie J. noted in the landmark Supreme Court of Canada decision R. v. Sheppard, 2002 SCC 26:
The delivery of reasoned decisions is inherent in the judge's role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.
[19] Lauwers J.A. in the recent Court of Appeal decision in Bruno v. Dacosta, 2020 ONCA 602 at paras 13 – 25 thoroughly reviewed the governing principles on the sufficiency of trial reasons and the circumstances as to when appellate courts will intervene and salvage a judgement for which there are insufficient trial reasons.

[20] In this decision the court states that where the trial judge's reasoning is not apparent from the reasons or the record the appeal court ought not to substitute its own analysis for that of the trial judge: Bruno at para 23.

[21] In Bruno the court also observes that it is reluctant to order a new trial in civil matters and stated that a new trial should not be ordered unless the interests of justice plainly require that to be done and there must be find a real prospect that a substantial wrong or miscarriage of justice has occurred: Bruno, at para 20.
. Bose v. Bangiya Parishad Toronto

In Bose v. Bangiya Parishad Toronto (Div Ct, 2021) the Divisional Court considers the standard for adequacy of reasons:
Were the Application Judge’s Reasons Inadequate?

[28] In Tarko et al v. Metropolitan Condominium Corporation 626 et al, 2015 ONSC 982, Marrocco A.C.J.S.C. dealt with the issue of adequacy of reasons. In that decision he cited R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, where at para. 42, the Supreme Court quotes with approval the following statement by Major J. in R. v. R.(D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291:
[W]here 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, appellate courts will not interfere.
[29] In addition, it is trite law that the reasons of a decision maker must be capable of meaningful appellate review (see Sheppard at para. 46).
. R v R.E.M.

In R v R.E.M. (SCC, 2008) the Supreme Court of Canada thoroughly canvassed the current law of 'reasons', at para 8-57.

. Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231

In Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231 (Ont CA, 2020) the Court of Appeal held that the R.E.M. case principles, while from a criminal case, apply to civil cases as well:
[13] On appeal to a single judge of the Divisional Court, the court found that the trial judge's reasons were insufficient to allow for meaningful appellate review as required by the test set out in R. v. R.E.M., 2008 SCC 51 (CanLII), [2008] 3 S.C.R. 3, at para. 17 While R.E.M. was a criminal case, these principles apply equally to reasons given in civil cases: D.M. Drugs (Harris Guardian Drugs) v. Barry Edward Bywater (Parkview Hotel), 2013 ONCA 356 (CanLII), at para. 35; F.H. v. MacDougall, 2008 SCC 53 (CanLII), [2008] 3 S.C.R. 41, at paras. 97-101.
. R v Sliwka

In the criminal case of R v Sliwka (Ont CA, 2017) the Court of Appeal sets out the purpose of Reasons for Judgment in trials:
[24] Trial judges must give reasons for their verdicts. Reasons that explain to the parties and the public the result arrived at by the trial judge are crucial to maintaining the proper level of transparency and accountability essential to the maintenance of the integrity of the trial process and public confidence in that process. Reasons for judgment allow the parties to know that their claims have been heard, understood and adjudicated upon in an objective and reasonable fashion that accords with the applicable legal principles: see R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, at paras. 15, 22, 24.

[25] On an appeal based on the trial judge’s failure to give reasons, the appellate court measures the adequacy of the reasons against the requirement that the reasons permit meaningful appellate review of the trial decision. If the reasons serve that function, any shortcomings from a due administration of justice perspective, do not justify appellate intervention. However, reasons that frustrate meaningful appellate review constitute an error in law. That error requires the quashing of the verdict unless the trial record as a whole permits effective appellate review of the verdict: see Sheppard, at paras. 25-33, 46.
. G & P Procleaners and General Contractors Inc. v. Gore Mutual Insurance Company

In G & P Procleaners and General Contractors Inc. v. Gore Mutual Insurance Company (Ont CA, 2017) the Court of Appeal briefly sets out the functions of reasons for judgment:
[26] The appellant submits that the reasons of the motion judge are insufficient to permit appellate review.

[27] Reasons serve four functions: (i) to justify and explain the result; (ii) to tell the losing party why they lost; (iii) to provide for informed consideration of the grounds of the appeal; and (iv) to satisfy the public that justice has been done: R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, at para. 24; and F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] 3 S.C.R. 41, at para. 98.

[28] The alleged inadequacy of reasons is not a freestanding ground of appeal: R. v. Walker, 2008 SCC 34 (CanLII), [2008] 2 S.C.R. 245, at para. 20; and F.H., at para. 99.

[29] In the present case, the reasons were very brief. However, they were written in a manner such that the motion judge’s chain of reasoning is readily apparent. It is clear from the reasoning that the motion judge dealt with all of the relevant issues raised on the motion. In my view, the reasons fulfill all of the functions articulated by the Supreme Court of Canada in Sheppard. I would, therefore, not give effect to this ground of appeal.
. Filanovsky v. Filanovsky

In Filanovsky v. Filanovsky (Ont CA, 2017) the Court of Appeal succinctly stated the main requirement of reasons for decision:
[13] The sufficiency of reasons is not a free-standing ground of appeal. If the reasons do not permit meaningful appellate review, appellate intervention may be justified: see for example, Dovbush v. Mouzitchka, 2016 ONCA 381 (CanLII), at para. 22.


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