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Keep it Brief: Ontario’s Court of Appeal asks the Bench for brevity in its reasons

4 minute read

The recent decision from the Ontario Court of Appeal in Welton v United Lands Corporation Limited,[1] is particularly noteworthy for its concluding remarks. The appeal before the court concerned an employee’s compensation for services she had provided to the defendant/respondent corporations. Justice Lauwers, writing for the court, commented on, in his view, the unnecessarily lengthy reasons that have been increasingly provided by judges of the lower courts. He noted; “I conclude by expressing a concern about the length of the reasons for decision in this case, which is reflective of an unfortunately growing trend, of which this is not the worst example, but it is the one before us.”[2]

In the lower court’s decision, the trial judge dedicated over 70 pages to the factual matrix of the case, including an in depth review of each witnesses’ examination in-chief, cross-examination and re-examination. Justice Lauwers referred to this as a ‘factual data dump’ and noted its increasing prevalence in decisions rendered by the court.[3] This trend was related to the detail allowed by electronic note-taking and the desire to head-off appeals based on decisions not properly addressing facts or arguments.[4] Justice Lauwers said that a trial judge’s reasons should “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.”[5]

While setting out the factual context of a case is an important aspect to a decision, it should not just be a laundry list of every factual detail revealed during the course of the proceedings. The facts, determinations and descriptions should be rooted in, and framed by, the issues before the trial judge.[6] Justice Lauwers analogized this need for brevity to a trial judge’s role in crafting jury instructions, where the role is to decant and simplify the evidence submitted and relate it to the issues essential to the jury’s decision.[7]

Justice Lauwers directed trial judges to find a ‘golden mean’ between not sufficiently addressing the evidence and arguments before him or her, and acting as a court reporter and detailing every minutiae. An extensive review of the facts is not akin to fact finding and is more likely to confuse and increase the time needed to review and understand the basis for the court’s decision. This in turn can lead to greater expense for counsel’s clients.[8] In concluding, he noted:

Perhaps 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. It is an extended ‘note to self’ best kept to oneself because it hinders the efficient and economical communication of judicial reasoning.[9]

The Takeaway

Through these reasons the Court of Appeal has called on lower courts to consider the length and content of their reasons. What effect this direction will have on lower court decisions will be interesting to observe.

[1] Welton v. United Lands Corporation Limited, 2020 ONCA 322 per JJ.A. Lauwers, Huscroft and Thorburn.

[2] Ibid at para. 56.

[3] Ibid at para. 62.

[4] Ibid at paras. 61, 63.

[5] Ibid at para. 58.

[6] Ibid at paras. 59-60.

[7] Ibid citing R. v. Saleh2013 ONCA 742 at para. 142.

[8] Ibid at paras. 61-63.

[9] Ibid at para. 63.

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