STRUCTURE AND
SUFFICIENCY
SOAR 2015 ANNUAL CONFERENCE
Chief Justice McLachlin
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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?
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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
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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.2d 928 at 942).
To communicate you must know
your audience
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“The key to successful gardening is
thinking like a plant”
It’s the same for judging
Whom do you write for?
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Many audiences?
My two important audiences
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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
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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
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Structure
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Accessibility and transparency
Sufficiency
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Accountability and transparency
STRUCTURE: Why is it
important?
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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
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The hardest job in judgment writing
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Credibility findings
Findings of fact
The primary task of a trial judge sitting
without a jury is to decide the facts.
(McLachlin CJC)
Justice lies in the facts
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An important distinction
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Process of getting a handle on the
evidence
Process of presenting the evidence to
your readers
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Getting a handle on the
evidence
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Witness summaries
Time lines
Outlines
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Presenting the evidence
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Reader friendly: an organization that
best helps my readers understand and
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
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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
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Today’s readers are impatient
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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
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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. (McLachlin 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)
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The introduction as an
organizing device
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An introduction is important for readers
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An introduction is important for writers
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Context for the detail in the rest of the
decision
Helps you structure the rest of your
decision
When do you write your introduction?
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Identify the “deep” issue and
put it in your introduction
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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
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A simple example: criminal
law
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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?
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And what does that turn on?
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Has the Crown proved beyond a reasonable
doubt that the complainant did not consent to
the sex?
 The deep issue
Useful technique: exclude what is not in issue
 Take it off the table
A simple example from the
RPD: s. 96 case
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The ultimate question: Is the claimant a
convention refugee?
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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?
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Third, is the claimant unable to avail himself
of state protection?
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Has the claimant shown on a balance of
probabilities that state protection is
inadequate?
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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
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Witness by witness
Chronological
Thematic
Issue-driven
Our traditional template
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Introduction
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Evidence/Facts
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Witness by witness
Chronological
Thematic
Analysis (Issues)
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“Deep” issues
Including submissions of the parties
Conclusion
Issue-driven structure:
proximity
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Introduction
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“Deep” issues
Analysis (Issues)
Conclusion
Witness by witness
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Jim Smith testified…
Sarah Jones gave evidence…
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Pros and cons
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Pros?
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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?
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Presentation doesn’t mesh with the
questions you must decide
Story may be disjointed
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Chronology
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Once upon a time…
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Pros?
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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?
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May not mesh with the issues you must
decide
Stories don’t have to begin at the
beginning
Kitchen sink problem
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Edit ruthlessly
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Thematic
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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
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Defendant is charged with an
environmental offence—a spill into a
watercourse
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Main defence: due diligence
32
Topic headings
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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?
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Clearer
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Form matches substance
Organization of the evidence meshes with the
issues
Information that belongs together joined together
More concise
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Why?—because you will omit evidence and facts
not needed to discuss the issues you must resolve
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Cons?
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May take more work and time
In some cases, could compromise the
telling of the story
Issue-driven structure:
proximity
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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
 For both written and oral decisions
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The issue-driven template
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Introduction
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[Additional background if needed]
[Credibility assessment]
First Issue…
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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
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Lane and OHRC v ADGA (modified)
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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
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Paul Lane, Diana Lane, two experts, Lane’s
doctor
Three employer representatives
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Deep Issues:
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Prima facie case of disability
discrimination?
Duty to accommodate?
Remedy
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General and mental distress damages?
Special damages?
Public interest?
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An issue-driven template
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Introduction (deep issues)
[Narrative overview of the case]
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Background facts
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Lane’s education etc.
Nature of his disability
Employment
Other facts relevant to many of the issues
OR: discuss under the first issue
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Analysis of issues
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Has the Commission established a prima
facie case of employment discrimination
because of disability?
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Parties’ positions
Legal framework
Evidence concerning dismissal
Finding on basis for dismissal
Application of law to findings
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Has ADGA shown that it could not
accommodate Lane without undue
hardship?
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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
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What are the appropriate remedies?
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(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
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(c) are public interest remedies appropriate?
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Evidence on ADGA’s workplace policies and attitude
Appropriate orders
Conclusion
Advantages of an issue- driven
structure
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Clearer for your readers and listeners
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Organization of the evidence meshes with the
issues
Information that belongs together joined together
46
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More concise
Why?
 Because you will omit evidence and facts
not needed to discuss the issues you must
resolve
 Because you will minimize repetition
Likely produces a better reasoned decision
Once you get used to it, easier to do
Disadvantages
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Time consuming until you get used to it
Story may get lost
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Three questions to ask
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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?
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Suggestions for organizing the
evidence
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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
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One size does not fit all
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Make your organization of the evidence
a conscious choice
Experiment
This talk
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The basic structures
Hybrid variations
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How much evidence?
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The tension: conciseness vs. detail
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Don’t be a court reporter
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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
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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
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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
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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
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Easier for your readers to follow and
digest your reasons
Readers deterred by lengthy blocks of
text
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Headings break up the information
White space
Three caveats
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Don’t overdo it
Don’t make them too long
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20 words or less
Short, single issue decisions may not
need case-specific headings
57
SUFFICIENCY
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Tribunals have a duty to give adequate
reasons
Discretion, deference, Baker and
Newfoundland Nurses
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Tribunals must make the case for
deference
Sufficiency: two components
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Show that you listened
Say WHY
Show that you listened
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Show the parties that you heard,
understood and fairly considered their
positions
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The most important person in the court
room is the losing party
The process must appear to be fair
Chief Justice McLachlin
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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
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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
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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
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…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)
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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
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Justification, transparency and intelligibility
You don’t have to refer to all the detail
Two requirements
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Show why you made the decision
Show the decision is within a range of reasonable
outcomes
How much do you have to
say?
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The tension between brevity and detail
One size does not fit all
Show that you grappled with the live
issues in the hearing
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Make clear findings and say why you made
them
No conflict between
conciseness and sufficiency
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“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
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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
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Ways that reasons may be inadequate
In close cases
Practical suggestions
1. Conclusory credibility
findings
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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
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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.
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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.
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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
●
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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.
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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
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The “why” is missing
Show the link or the path
3. Saying you have considered the
relevant criteria without actually
doing so
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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. (2d) 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
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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. (3d) 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).
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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 (3rd) 502.)
Suggestions
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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
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Easy reading is damn hard writing.
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Nathaniel Hawthorne
What is written without effort is in
general read without pleasure.
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Samuel Johnson
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John Laskin