While trial counsel cannot control the adequacy of a judge’s reasons, we can provide clarity, identify the issues and ensure there is an evidentiary record that can be reviewed on appeal if necessary. When a judge’s reasons appear inadequate, the work of trial counsel can make the difference in advancing a successful appeal.
In a recent decision of the Ontario Court of Appeal, Manos v. Wal-Mart Canada Corp., 2020 ONCA, the Court considered the appellant’s argument that the trial judge provided inadequate reasons because he did not explicitly consider the medical evidence of the appellant’s witnesses regarding whether the respondent was suffering from a condition called reactive airways disorder syndrome (“RADS”).
Reaching back to the Supreme Court of Canada decision F.H. v. McDougall, 2008 SCC 53, the Court held that proper reasons serve to:
- Justify and explain the result;
- Tell the losing party why he or she lost;
- Provide for informed consideration of the grounds of appeal; and
- Satisfy the public that justice has been done.
According to the Court, for purposes of appellate intervention, the overarching principle is whether the reasons permit meaningful and effective appellate review. In this particular case, the Court found the trial judge’s reasons were insufficient because:
- There was no analysis of the evidence of the appellant’s experts who testified that the respondent did not suffer from RADS;
- The judge relied on an incorrect summary of the specialists’ views;
- One of the experts relied on was not qualified to give an opinion on the RADS diagnosis;
- The judge’s reasons did not demonstrate why he rejected evidence;
- The rejection of evidence had to be rooted in the evidence before the judge, otherwise the reasons would not be reasonably intelligible to the parties or amenable to meaningful appellate review; and
- The judge did not engage on the issue of causation which was critical and as a result the appellate court could not review the judge’s reasoning process.
The British Columbia Court of Appeal has also recently considered the issue of inadequacy of reasons in Chahal v. Chahal, 2020 BCCA 147. The Court pointed out that while the judge’s reasons were not extensive, she clearly described the issue and the parties’ positions. Importantly, the Court stated that, “it must be remembered that reasons do not need to be extensive; they need not dot every “i” and cross every “t”. Reasons are sufficient if they are responsive to the live issues and the parties’ key arguments”.
As trial counsel, it is imperative that you assist the judge by clearly presenting and connecting admissible evidence to:
- Conclusions you want the Court to draw;
- Inferences you say the Court should and can make; and
- An analysis of why you say certain evidence should be preferred over other evidence.
While it can be frustrating to receive a judge’s reasons that do not appear to address all of your concerns; trial counsel should do its part to lay a clear evidentiary record that can be reviewed by an appellate court. There is a difference between reasons that you are not satisfied with compared to inadequate reasons. Application of the framework noted above is a useful guide and starting point.
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