Adequacy of reasons -- another case

Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, released today, overturns a disciplinary decision of the Law Society of the basis of inadequacy of reasons.

 

Many cases have dealt with adequacy of reasons recently.  Often these arguments are, in reality, arguments about the merits of the fact finding made in those reasons.  By framing the argument in terms of the adequacy of the reasons, rather than the correctness of the fact finding, an appellant presumably hopes to avoid the stringent standard of review applicable to findings of fact.  This is a rare case where the appellant has demonstrated that the reasons given by the Hearing Panel are so inadequate as to foreclose meaningful appellate review.  The inadequacy of the reasons constitutes an error in law requiring an order directing a new hearing.

 

The Court holds:

 

 

[60]         Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43, declares that in certain circumstances the duty of procedural fairness requires that a tribunal give reasons for its decision.  Reasons will be required where the decision in issue has “important significance for the individual”.  A finding of professional misconduct against a lawyer obviously has important significance for that lawyer.  In addition, as a self-governing profession, it is important that the Law Society explain its discipline decisions to complainants and members of the public at large in a way which renders those decisions comprehensible and transparent.  A Hearing Panel can achieve those ends only through the reasons it gives.  Mr. Neinstein, the complainants and the community were entitled to reasons explaining the Hearing Panel’s decision.

 

[61]         Reasons for a decision serve several salutary purposes.  Where there is a right of appeal from that decision, reasons must provide a sufficient window into the decision to allow meaningful appellate review to the extent contemplated by the permitted scope of the appeal.  Reasons for a decision that describe both what is decided and why that decision was made are susceptible to effective appellate review.  Whatever other shortcomings may exist in reasons that adequately explain the “what” and the “why”, those shortcomings will not render the reasons so inadequate as to justify appellate intervention on that basis:  R. v. Sheppard, [2002] 1 S.C.R. 869, at paras. 25-26; R. v. Braich, [2002] 1 S.C.R. 903, at para. 31; R. v. R.E.M., [2008] 3 S.C.R. 3, at paras. 15-18, 52-53.

 

[62]         A determination of whether reasons fulfill their purpose and admit of effective appellate review can only be made by examining those reasons in the context of the proceedings that gave rise to the reasons.  Context includes the nature of the issues raised before the tribunal, the evidence adduced and the submissions made.  For example, in a one-issue case the adequacy of the reasons given will turn on the treatment of that issue in the reasons and not on the treatment of matters that were peripheral or unchallenged at trial but have been made the focus of the appeal:  Sheppard, at paras. 37-42; R.E.M., at paras. 16, 41.

 

[63]         The outcome of this proceeding turned almost exclusively on the Hearing Panel’s assessment of the credibility of the appellant and the complainants.  Where a decision depends on credibility assessments, an appellate court, in reviewing the sufficiency of the reasons, must be sensitive to both the advantage the tribunal has over the appellate court when it comes to assessing credibility and the difficulties inherent in articulating reasons for credibility findings:  R.E.M., at paras. 48-51;  R. v. Gagnon, [2006] 1 S.C.R. 621, at paras. 20-21; R. v. Wadforth (2009), 247 C.C.C. (3d) 466 (Ont. C.A.), at paras. 66-68; R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 46.