The Court of Appeal for Ontario recently released its decision in Gro-Bark v. Eacom Timber, an appeal about the crucial role that reasons – more precisely, sufficient reasons – play in our legal system.
Below, a motion for summary judgment had been granted in favour of the motion respondent. The summary judgment motion turned on the interpretation of a single paragraph in the disputed agreement between the parties. In granting summary judgment for the respondent, the motion judge’s reasons simply stated:
I adopt and rely upon the analysis and statements of law contained in paragraphs 24 to 36 inclusive of the defendant’s factum. These paragraphs, in my view, satisfactorily answer the arguments raised by the plaintiffs.
The Court of Appeal set aside the motion judge’s decision on a deceivingly simple basis – that his reasons were insufficient. For the appeals court, the motion judge’s reference to the “analysis and statements of law” put forward by one of the parties was not an appropriate substitute for the application of contractual interpretation principles required to decide the motion.
The leading case on sufficiency of reasons is the Supreme Court’s decision R. v. R.E.M. Yet, more than a decade later, meeting the prevailing test continues to pose an interesting challenge as adjudicators strive to balance a number of imperatives: promoting and upholding the rule of law, maintaining transparency of decision-making, and striving for timely and fair adjudication of both the immediate dispute and all of the other disputes on the docket. Sufficient reasons must effectively balance all of these often competing imperatives.
The Functions of Reasons
Adequate reasons serve several important functions – functions best appreciated by considering the intended audience for a judicial decision: the parties, the public at large, and potentially a reviewing court.
Sir Robert Megarry, a highly-regarded British judge and law professor, is often remembered for asking his students, “Who is the most important person in the court?” To the usual responses – the judge, the lawyers, the witnesses – he would answer that the most important person is the litigant who is going to lose. The losing litigant must be able to understand why the case was decided against them. As the Supreme Court held in R.E.M., reasons “attend to the dignity interest” of those directly affected by the decision. Ideally, the losing litigant will “feel no justifiable sense of injustice in the judicial process” and will be able to make an informed decision about whether to appeal.
But reasons go further than communicating the judicial decision once it is made. The iterative process of judgment writing trains the adjudicator’s attention on the issues. “Often a strong impression that, on the basis of the evidence, the facts are thus-and-so,” explained an American judge, “gives way when it comes to expressing that impression on paper.” By sidelining first impressions and focusing on the salient issues at play, the process of writing reasons allows for fairer and more accurate decision-making.
Critically, adequate reasons – which articulate the trial judge’s factual findings and understanding of the law – also enable effective and efficient appellate review. A reviewing court can defer to the fact-finding and inference-drawing role of the trial judge – the person best placed to find the facts – rather than reach into the record to draw its own conclusions without the benefit of having observed the witnesses first-hand.
Reasons serve two additional, fundamental purposes. By providing guidance to future courts, reasons enable the uniform development of the law in accordance with the principles of stare decisis and judicial comity. Future decision-makers, armed with the earlier decision-maker’s reasons, are able to apply that precedent to factually analogous cases and to distinguish it where appropriate.
Finally, reasons make decision makers accountable to the public: justice is not only done, but is also seen to be done.
Assessing Adequacy – the R.E.M. Standard
In R.E.M., the unanimous Supreme Court articulated the test for the sufficiency of reasons as follows:
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 discernible, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.
Assessing the adequacy of reasons, therefore, is a contextual and functional inquiry. Different imperatives will dominate depending on the circumstances.
R.E.M. instructs reviewing courts to read the reasons in the context of the evidence, the arguments, and the trial. 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. “The object,” the Court clarified, “is not to show how the judge arrived at his or her conclusion, in a ‘watch me think’ fashion.” Instead, “[t]he basis for the trial judge’s verdict must be intelligible, or capable of being made out.”
Proportionately Sufficient Reasons Promote Legitimate Court Imperatives
As set out above, first-instance judges must balance a number of competing imperatives. The pursuit of transparency, accountability and fairness must be balanced against one of the scarcest resources in our judicial process: time. As Justice Stratas, a judge on the Federal Court of Appeal, has explained, courts are “community property.” This is an access to justice issue; litigants are entitled to timely resolution. Fair resolution, however, takes time.
In Hryniak v. Mauldin, the Supreme Court acknowledged the challenge of balancing access to justice with the time that fair adjudication demands:
A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable.
The degree of procedure necessary to achieve fair process and just adjudication is a question of proportionality. One size does not fit all. The same is true of reasons. What is “adequate” will vary with the circumstances. First-instance judges may need to write more detailed reasons when the case is difficult, has troublesome points of law requiring resolution, or involves confusing or conflicting evidence on key points. The cost of these reasons is, of course, time.
Nevertheless, more fulsome reasons generate positive externalities which justify the time spent in at least three ways.
First, more fulsome reasons promote the rule of law, a foundation of Canada’s constitutional democracy. A law that is stable, well-defined, and capable of being explained to the public maximizes predictability of outcome and justifies the principle that ignorance of the law is no excuse for non-compliance. Everyone is capable of knowing what they can and cannot legally do, as well as the consequences for non-compliance. Thus, more fulsome reasons help citizens to comply. A law that is ill-defined cannot hope to effectively guide behavior or promote public confidence in the rule of law.
Second, and related to the first, adequate reasons serve to reduce legal uncertainty over time. Although new laws may not yet be stable or well-defined, sufficient reasons issued today have the potential to reduce the volume of uncertain disputes that wind up in the court system tomorrow. As Justice Stratas has noted, the common law “is not a petrified forest.” The sound development of the law is a time-intensive process. Until the law achieves the stability and definition required, more expositive reasons assist the public to know the contours of the legal debate and shine a light on unresolved issues for future courts. Once the law achieves stability, the volume of disputes will decrease, justifying the investment of time. As Sir Megarry noted, “Justice in full takes time; but often it is time well spent.”
Finally, more fulsome reasons engender public confidence in the law and respect for the courts as decision-makers. Adequate reasons allow the public to see the rational foundation for the judge’s decision, and provide comfort that the judicial process was unbiased, fair and complete. It is important that parties to litigation to feel that justice has been done as between them. It is equally important that the public at large feel that our legal system is operating smoothly and fairly.
Gro-Bark (Ontario) Ltd. v. Eacom Timber Corporation, 2019 ONCA 341.
Date of Decision: April 25, 2019