15 Mar The Duty of Courts to Give Adequate Reasons, The Lawyer’s Daily (March 10, 2021)
By Nikolay Y. Chsherbinin
Written reasons are the voice of a decision. They are the means by which a decision maker communicates the rationale for its decision. Their presence explains how and why a decision was made. Their absence creates the perception of arbitrariness in the exercise of judicial power.
In Canada, there has been a continuing judicial conversation about the duty of judges and tribunals to give reasons that properly explain a decision. The cases speak about adequacy, transparency, accountability and intelligibility. In Baker v. Canada,  2 S.C.R. 817, the Supreme Court of Canada stated: “reasons … allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed … .” In R. v. R.E.M., 2008 SCC 51, the same court explained: “reasons help ensure fair and accurate decision making; the task of articulating the reasons directs the judge’s attention to the salient issues and lessens the possibility of overlooking or under-emphasizing important points of fact or law.”
Historically, the common law recognized no legal duty upon a decision maker to disclose his or her reasons for a decision or to identify what evidence has been believed and what disbelieved. However, since Baker the law has evolved. 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. In R v. Sheppard, 2002 SCC 26, the Supreme Court of Canada stated: “[t]he delivery of reasoned decisions is inherent in the judge’s role [and] is part of his or her accountability.” In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the top court invoked the need to “develop and strengthen a culture of justification.”
Despite these pronouncements, there has been a slew of recent appellate decisions — Welton v. United Lands Corporation Limited, 2020 ONCA 322, Bruno v. Dacosta, 2020 ONCA 602, Abbasbayli v. Fiera Foods Company, 2021 ONCA 95 and RBC v. 1643937 Ontario Inc., 2021 ONCA 98 — where the Court of Appeal for Ontario continues to stress the importance of explaining the rationale for a decision and highlight the critical functions of the reasons.
As can be seen, the law has progressed to the point where a decision maker has a duty to give reasons. A requirement to give reason is only fulfilled if the reasons provided are adequate. What constitute adequate reasons is a case-specific assessment. As a general rule, reasons are adequate if they are responsive to the case’s live issues and the parties’ key arguments. The duty to provide adequate reasons will not be satisfied by merely reciting the parties’ arguments and evidence and stating a conclusion.
A February 2021 case on point is Abbasbayli, where the Court of Appeal set aside the motion judge’s decision, in part, because the reasons for striking various pleadings were conclusory, stating: “… reasons do not explain what the deficiencies are, which parts of what paragraphs contain evidence, or which parts contain irrelevant facts and inflammatory attacks. There is nothing in the reasons that would assist the appellant in amending his pleading … .” As a consequence, it fell on the appellate court to consider the matter “afresh.”
Three days after the release of Abbasbayli, a separate panel of the Court of Appeal issued RBC, where it overturned the motion judge’s decision because it also contained conclusory statements: “[w]hile she recited the evidence, she did not weigh it, evaluate it, or make findings of credibility as she was required to do in this case. She could not simply prefer one position over another without providing an explanation that is sufficient for appellate review.”
The duty to give adequate reasons is a salutary one. Reasons serve a number of beneficial purposes including that of providing the parties with the assurance that their representations have been considered; allowing the parties to effectuate any right of appeal or judicial review; and facilitating effective appellate review. But what are the contents of this duty?
In Bruno and Welton, the Appeal Court stressed that, in order to provide for a meaningful right of appeal, judges must: identify the key issues; find the facts relevant to the issues; assess credibility and reliability where there is conflict; set out the chain of reasoning; make the decision; and then write the reasons to clearly communicate the decision.
In Welton, the court highlighted the unfolding dichotomy: “appellate courts see reasons for decision that do not address the evidence and the arguments and are criticized as conclusory, on the one hand, and decisions that leave nothing out, on the other hand.”
The Court of Appeal expressed concern for “an unfortunately growing trend” to provide lengthy reasons, stating: “[p]erhaps this emerging style is artifact of electronic note-taking by judges, but it is not helpful and can be confusing. A blizzard of words can obscure. Digesting unduly lengthy reasons consumes far too much time because every word must be read by the parties, by their counsel at great expense, and by appellate courts. A data dump does not constitute fact-finding.”
Judges are not court reporters. Their role is to decant and simplify, not to regurgitate and complicate. Unduly elaborate and punctilious reasons are unnecessary and unwelcome. However, as Abbasbayli and RBC illustrate, the Appeal Court does not tolerate a symbolic approach toward the reasons requirement either. On these points, in Welton, the court observed: “the task of a trial judge is to find the golden mean … .”
This said, in F.H. v. McDougall, 2008 SCC 53, the Supreme Court of Canada reminded that judges’ “failure to give adequate reasons is not a free standing basis for appeal.” An appeal court cannot intervene merely because it believes the judge did a poor job of expressing himself or herself. Its intervention may be justified if the insufficiency of the reasons prevents meaningful appellate review.
The principles governing the sufficiency of the reasons give rise to a difficult question: to what extent should appellate courts work to salvage inadequately explained or conclusory reasons?
Having considered this question in Bruno, the Appeal Court explained that in assessing a judge’s reasons for sufficiency an appellate court must: examine the evidence and determine whether the reasons are, in fact, patent on the record; and review the record to determine whether the decision can be rendered more comprehensible when read in the context of the record. The court reminded that it “usually declines to dig into the record” in order to salvage a decision where it turns on instances of conflicting evidence, evaluations of credibility and reliability, and exercises of discretion that are properly within the purview of a judge.
Against this background, it makes clear that the primary object of the reasons is not to explain how a decision maker arrived at his or her decision, but why. The foundations of the decision maker’s decision must be discernable when looked at in the context of the evidence, the parties’ submissions and the underlying process. In other words, a logical connection between the decision and the basis for the decision must be apparent. In R.E.M, the Supreme Court of Canada pointed out: “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.” This applies to the law, the evidence and the arguments, no matter how helpful.