STRUCTURE AND SUFFICIENCY SOAR 2015 ANNUAL CONFERENCE Chief

STRUCTURE AND SUFFICIENCY SOAR 2015 ANNUAL CONFERENCE

Chief Justice Mc. Lachlin n We should do what we can to make the law clear and accessible to Canadians. The law is, perhaps, the most important example of how words affect people’s lives.

Why do we write reasons? n n n Tell the parties affected by the decision why the decision was made Show that the evidence and arguments were considered Provide public accountability: justice is not only done, but is seen to be done Permit effective appellate review “Sometimes it just won’t write”

Sometimes it just won’t write n n Important self-discipline Often a strong impression that, on the basis of the evidence, the facts are thus -and-so gives way when it comes to expressing that impression on paper. (US v Forness, 125 F. 2 d 928 at 942).

To communicate you must know your audience n n “The key to successful gardening is thinking like a plant” It’s the same for judging

Whom do you write for? n n Many audiences? My two important audiences n n n My next door neighbour The losing party: the most important person in the courtroom is the losing party (Megarry) Do you really think about your readers when you write?

Justice Binnie • Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts. 7

This talk n Structure n n Accessibility and transparency Sufficiency n Accountability and transparency

STRUCTURE: Why is it important? n n n Structure (or organization), accessibility and clarity go hand in hand An evidence “dump” will neither inform nor persuade Well organized decisions are more likely to be upheld on review or appeal 9

Setting out the evidence n The hardest job in judgment writing n n Credibility findings Findings of fact The primary task of a trial judge sitting without a jury is to decide the facts. (Mc. Lachlin CJC) Justice lies in the facts 10

An important distinction n n Process of getting a handle on the evidence Process of presenting the evidence to your readers 11

Getting a handle on the evidence n n n Witness summaries Time lines Outlines 12

Presenting the evidence n n Reader friendly: an organization that best helps my readers understand absorb what I have written Writer friendly: an organization that communicates my decisions effectively, but lets me manage my caseload and still “have a life” 13

My message: you have choices n n n One size does not fit all You can organize the evidence differently for different kinds of cases Do not fall into automatic pilot: consciously choose a structure 14

Conciseness n Today’s readers are impatient n n In writing, brevity works not only as a function of space on a page, but the time that an audience is willing to spend with you. (“Keep it Short”, NYT 2014/03/24) The increasing length of judgments over time suggests an ever widening disjunction between the way judges write and the way information is absorbed and understood by the lay consumer. (Vicki Waye, Who Are Judges Writing For? ) 15

Set out only the evidence relevant to the issues n n We must fully understand the facts. But that does not mean that we have to write them all out. Only the facts relevant to the legal issues need to be set out. (Mc. Lachlin CJC, 2010) It really is not necessary to incorporate detailed discussion of the evidence, arguments of counsel and other case law to arrive at a fully reasoned judgment. (Waye) 16

The introduction as an organizing device n An introduction is important for readers n n An introduction is important for writers n n Context for the detail in the rest of the decision Helps you structure the rest of your decision When do you write your introduction? 17

Identify the “deep” issue and put it in your introduction n n A useful term coined by Bryan Garner Gets at the difference between the bottom line and the real debate you must resolve The concrete question that you need to resolve to decide the ultimate question The final question you pose when you can no longer usefully ask: “And what does that turn on? ” Consider how precisely you want to state the issues you must resolve 18

A simple example: criminal law n n A charge of sexual assault where the complainant and the accused agree that they had sexual intercourse The ultimate question: Is the accused guilty of sexual assault? n And what does that turn on?

n n Has the Crown proved beyond a reasonable doubt that the complainant did not consent to the sex? n The deep issue Useful technique: exclude what is not in issue n Take it off the table

A simple example from the RPD: s. 96 case n The ultimate question: Is the claimant a convention refugee? n n n And what does that turn on? First, has the claimant established his identity? Second, does the claimant have a wellfounded fear of persecution because of race?

n Third, is the claimant unable to avail himself of state protection? n n Has the claimant shown on a balance of probabilities that state protection is inadequate? n n And what does the third issue turn on? The deep issue Suggestion: use the criteria in your statute and the case law to define precisely the issues you must decide

Four ways to organize the evidence n n Witness by witness Chronological Thematic Issue-driven

Our traditional template n Introduction n n Evidence/Facts n n Witness by witness Chronological Thematic Analysis (Issues) n n “Deep” issues Including submissions of the parties Conclusion

Issue-driven structure: proximity n Introduction n “Deep” issues Analysis (Issues) Conclusion

Witness by witness n n Jim Smith testified… Sarah Jones gave evidence… 26

Pros and cons n Pros? n n n Quick and easy: evidence is led before you witness by witness Useful in very simple cases and cases with one, two or three witnesses Cons? n n Presentation doesn’t mesh with the questions you must decide Story may be disjointed 27

Chronology n Once upon a time… 28

Pros? n n Natural way to tell a story Relatively quick and easy Especially useful when what happened when matters Also effective in straight forward cases with a few issues 29

Cons? n n n May not mesh with the issues you must decide Stories don’t have to begin at the beginning Kitchen sink problem n Edit ruthlessly 30

Thematic n n Information grouped under topics or themes important to the issues May simply impose a thematic structure on a story told chronologically Criteria in your home statute or case law Especially when the facts are long or complicated 31

An example n Defendant is charged with an environmental offence—a spill into a watercourse n Main defence: due diligence 32

Topic headings n n n n The defendant’s pollution control plan The defendant’s equipment The defendant’s maintenance of the equipment The defendant’s employees: their hiring and training The operation of the equipment on the day of the spill… Witness by witness or chronological organization is likely to be ineffective Thanks to David Stratas for this example

Thematic: pros? n Clearer n n Form matches substance Organization of the evidence meshes with the issues Information that belongs together joined together More concise n Why? —because you will omit evidence and facts not needed to discuss the issues you must resolve 34

Cons? n n May take more work and time In some cases, could compromise the telling of the story

Issue-driven structure: proximity n n n Introduction Analysis (Issues) Conclusion

“One stop shopping” Legal principles, statutory provisions, positions of the parties, evidence, your findings of fact, your reasons for your findings, and any legal analysis are all discussed under each issue to which they are relevant n For both written and oral decisions n 37

The issue-driven template n Introduction n n [Additional background if needed] [Credibility assessment] First Issue… n n n n n What is this case about? Deep issues Relevant legal principle(s) and statutory provision(s) Positions of the parties Evidence or facts relevant to the issue Credibility assessment Findings of fact and credibility “Because” [Law applied to your findings of facts conclusion on this issue] Second Issue… Conclusion

An example: human rights complaint n Lane and OHRC v ADGA (modified) n n Lane was an analyst at an IT company He had a bipolar disorder, which he disclosed when he was hired Eight days into his job he was fired Eight witnesses n n Paul Lane, Diana Lane, two experts, Lane’s doctor Three employer representatives

n Deep Issues: n n n Prima facie case of disability discrimination? Duty to accommodate? Remedy n n n General and mental distress damages? Special damages? Public interest? 40

An issue-driven template n n Introduction (deep issues) [Narrative overview of the case] n Background facts n n n Lane’s education etc. Nature of his disability Employment Other facts relevant to many of the issues OR: discuss under the first issue

n Analysis of issues n Has the Commission established a prima facie case of employment discrimination because of disability? n n n Parties’ positions Legal framework Evidence concerning dismissal Finding on basis for dismissal Application of law to findings

n Has ADGA shown that it could not accommodate Lane without undue hardship? n n n Parties’ positions Terms of employment ADGA’s workplace policies ADGA’s efforts at accommodating Lane Law Finding on whether ADGA met its duty to accommodate

n What are the appropriate remedies? n n n n n (a) is Lane entitled to general and mental distress damages? Parties’ positions Plaintiff’s condition after dismissal Relevant legal principles Finding (b) Is Lane entitled to special damages? Parties’ positions Lane’s attempts to find another job Medical evidence Finding

n (c) are public interest remedies appropriate? n n n Evidence on ADGA’s workplace policies and attitude Appropriate orders Conclusion

Advantages of an issue- driven structure n Clearer for your readers and listeners n n Organization of the evidence meshes with the issues Information that belongs together joined together 46

n n More concise Why? n Because you will omit evidence and facts not needed to discuss the issues you must resolve n Because you will minimize repetition Likely produces a better reasoned decision Once you get used to it, easier to do

Disadvantages n n Time consuming until you get used to it Story may get lost 48

Three questions to ask n n n What structure should I use to organize the evidence? If I use an issue-driven structure, what evidence, if any, should I put in the “background” section of my decision, and what evidence should I save for the “analysis” section? Where should I put the submissions of the parties? 49

Suggestions for organizing the evidence n n Thematic or issue-driven structures usually work best Issue-driven or “near” issue-driven structures will make your decisions clearer and more concise Chronological structures work best when sequence matters Witness by witness structures are seldom effective 50

One size does not fit all n n n Make your organization of the evidence a conscious choice Experiment This talk n n The basic structures Hybrid variations 51

How much evidence? n The tension: conciseness vs. detail n n n Don’t be a court reporter n n n Details persuasion Too many details turn-off Important evidence for each party Don’t be afraid to leave some things out A test: every fact, every piece of evidence must have a purpose

Write informative case specific headings and sub-headings n n n The test: could a reader skim your headings and sub-headings and know where your decision is going They promote cognitive clarity by making the structure explicit: a logical road map Use them for the evidence and the analysis

They should be informative n n n Weak: Credibility Better: The evidence on the claimant’s credibility Even better: The claimant was a credible witness

Try the question form of a heading for the issues n n Does the claimant have a well-founded fear of persecution because of his race? Is the claimant in need of protection because she would face torture if sent back to the DRC?

Collateral advantages of headings n n Easier for your readers to follow and digest your reasons Readers deterred by lengthy blocks of text n n Headings break up the information White space

Three caveats n n Don’t overdo it Don’t make them too long n n 20 words or less Short, single issue decisions may not need case-specific headings 57

SUFFICIENCY n n Tribunals have a duty to give adequate reasons Discretion, deference, Baker and Newfoundland Nurses n Tribunals must make the case for deference

Sufficiency: two components ● ● Show that you listened Say WHY

Show that you listened n Show the parties that you heard, understood and fairly considered their positions n n The most important person in the court room is the losing party The process must appear to be fair

Chief Justice Mc. Lachlin n n I insist, always, that all the arguments of the losing party are frankly and fully addressed—perhaps the greatest check against an incorrect conclusion, and the greatest assurance to the loser and the public that the process was honest. You can deal succinctly with arguments that have little or no merit

Say why n n Address the live issues in the case Link: evidence findings decision The logical connection between the decision and the basis for the decision Avoid bare conclusions and boilerplate

Three Purposes n n n Obligation to the public Obligation to the losing party Obligation to make the right of appeal or review meaningful

Clifford v OMERS, 2009 ONCA 670: words of comfort n …recognition of the day-to-day realities of administrative agencies is important in the task of assessing sufficiency of reasons in the administrative law context. One of the realities is that many decisions by such agencies are made by non-lawyers…If the language used falls short of legal perfection…this will not render the reasons insufficient provided there is still an intelligible basis for the decision.

R. v R. E. M. (SCC 2008) n n 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. [Reasons are not intended to be] a verbalization of the entire process engaged in by the trial judge in reaching a verdict.

Reasonableness review n n n Justification, transparency and intelligibility You don’t have to refer to all the detail Two requirements n n Show why you made the decision Show the decision is within a range of reasonable outcomes

How much do you have to say? n n n The tension between brevity and detail One size does not fit all Show that you grappled with the live issues in the hearing n Make clear findings and say why you made them

No conflict between conciseness and sufficiency n n “The adequacy of reasons is not measured by the inch or the pound” Show your path, but not every landmark along the way

Context matters: more detail is required of you when n n The case is difficult The case is close The case has troublesome points of law The case has conflicting or confusing evidence on key points An important witness’s evidence contains significant inconsistencies

Five common sufficiency pitfalls and ways to avoid them n n n Ways that reasons may be inadequate In close cases Practical suggestions

1. Conclusory credibility findings n n Sometimes difficult to say why But you should try to explain your credibility findings Otherwise these findings may lose the deference they ordinarily command Complainants and parties (and their families) are entitled to know why they were disbelieved

Law Society v Neinstein, 2010 ONCA 193 n There is no analysis of his evidence or the evidence of his witnesses. There is nothing in the content of that evidence or the character of those witnesses that would make the evidence inherently unreliable and justify an outright, unexplained rejection of that evidence without any comment. It can be fairly said that Mr. Neinstein, on a reading of the Hearing Panel’s reasons, would have absolutely no idea what, if anything, the Hearing Panel made of his evidence, and that of his supporting witnesses.

n The reasons relating to C. T. ’s complaints compel the conclusion that those reasons do not address the “why” component required in reasons for judgment. The Hearing Panel’s reasons are a combination of generic generalities (e. g. , “gave her evidence in a forthright manner”), unexplained conclusory observations (e. g. “withstood crossexamination well”), material omissions…

The assessment of credibility is more of an “art than a science” • Use your common sense and life experiences • Try to unpackage your credibility findings • Try to avoid bald conclusions about the credibility of one witness compared to another

R. E. M. n While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another…assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.

2. Citing a statutory provision followed by your conclusion ● ● The Office of the Independent Police Review Director has carefully reviewed the complaint about the conduct of Chief William Blair of the Toronto Police Service. The OIRPD is aware of your concerns. S 60(2) of the Police Services Act permits the Director not to deal with a complaint if the complaint is made more than six months after the facts on which it is based occurred.

n n Taking all the information into consideration, I have decided not to proceed with the complaint as it was made more than six months after the facts on which it is based occurred. (Wall v OIPRD, 2014 ONCA 884) Decision quashed for unreasonableness n n The “why” is missing Show the link or the path

3. Saying you have considered the relevant criteria without actually doing so ● ● ● In rendering this decision, I have considered most extensively all of the above factors and the information on file as a whole. With all the evidence before me, I am not satisfied that the requested exemption is justified by humanitarian and compassionate considerations. (Alwan v. Canada, F. C. T. D. 2006) Taking all the information into consideration…(Wall) Show; don’t tell

4. Failing to analyze the evidence or explain findings ● I am of the view that, in the absence of a true analysis of the evidence, the appeal process is frustrated and that the duty to give reasons cannot be met simply by listing the evidence considered. Bastarache J. A. in Boyle v. New Brunswick (Workplace Health, Safety and Compensation Commission) (1996), 39 Admin. L. R. (2 d) 150 (N. B. C. A. )

● The Board simply states that “based on the evidence taken as a whole, the undervaluation is important and lies in an interval of between 10 and 15 percent. ”…It is not enough to say in effect: “We are the experts. This is the figure. Trust us. ” (CAB v. Society of Composers, Authors and Music Publishers of Canada, F. C. A. , 2006 per Evans J. A. )

Don’t be just a scribe ● The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors. Gray v. Ontario (Disability Support Program, Director) (2002), 59 O. R. (3 d) 364

But: § A trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues in the trial. (REM)

5. Disregarding material evidence or failing to deal with important inconsistencies ● A failure to deal with material evidence or a failure to provide an adequate explanation for rejecting material evidence precludes effective appellate review. (Barrington v Institute of Chartered Accountants, 2011 ONCA 409).

● ● It is not the law that the trial judge must expressly deal with every inconsistency in the evidence so long as the basis for the trial judge’s conclusions is apparent from the record. But the complainant gave three different versions of the last two incidents…These were not secondary details… The trial judge had a duty to address these inconsistencies and she failed to do so. (Stark (2005), 190 CCC (3 rd) 502. )

Suggestions n n First decide whether the evidence or the inconsistencies are important If it is or if they are, you should address them

Concluding words from two masters of the craft n Easy reading is damn hard writing. n n Nathaniel Hawthorne What is written without effort is in general read without pleasure. n Samuel Johnson n John Laskin