Saturday, October 27, 2012

Oral reasons need be sufficient

Lizotte v. Arseneault, Bird, LeBlanc et al, 2012 NBCA 89 is a good source for the proposition that oral reasons have to provide sufficient basis for appellant review. Oral reasons must explain clearly why the decision is what it is; recognizing that after a brief fact driven trial some matters need not be repeated in great detail:

[15]                                                           Bluntly stated, the adumbrated approach to judgment writing which the application judge applied is not an acceptable model for judicial decision making. Factually, this is not a difficult case. The entire application record is in written form, there being no cross-examination on the affidavits. The parties expected the application judge would have clearly set out the positions of the two parties, cited the appropriate jurisprudence, made any necessary findings of fact, drawn any necessary inferences and applied these findings in arriving at a determination on each issue. In that regard, see The Minister of Social Development v. G.B., F.H. and R.O., 2012 NBCA 62 (CanLII), 2012 NBCA 62, [2012] N.B.J. No. 263 (QL) where it was held that the reasons in that case to support the decision were "grossly lacking any type of coherent analysis" (para. 32). Equally disquieting is the unstated premise that the application judge was delivering an oral decision within the meaning of Rule 60.02(1) of the Rules of Court and, therefore, not subject to the same minimum standards of judgment articulation expected of the conventional "written" decision.


[16]                                                           No one would quibble with the general proposition that a structured or analytical approach to judgment writing is required irrespective of whether the decision is delivered orally from the Bench or filed as formal reasons for decision. Moreover, there is a judicial obligation to provide sufficient reasons based on the following policy rationales: (1) reasons ensure that judges turn their minds to complex issues and consider relevant points ("fair and accurate decision making"); (2) reasons allow the parties to understand why the dispute was decided in particular way and, correlatively, whether an appeal is warranted; (3) reasons not only ensure that justice is done, but that the parties and the general public are made to see that justice has been done (public accountability and societal confidence in the judicial system); and (4) reasons are essential to a legal system that relies on earlier precedents when applying, interpreting or developing the law. Of course, those policy objectives remain valid irrespective of whether the decision falls within the "oral" or "written" category (see generally: F.H. v. McDougall2008 SCC 53 (CanLII), 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 98-99; MacDonald v. The Queen1976 CanLII 140 (SCC), [1977] 2 S.C.R. 665, [1976] S.C.J. No. 90 (QL); discussed fully in R. v. Sheppard,2002 SCC 26 (CanLII), 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. R.E.M.2008 SCC 51 (CanLII), 2008 SCC 51, [2008] 3 S.C.R. 3; Baker v. Canada (Minister of Immigration)1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL); R. v. S.S., 2011 NBCA 75 (CanLII), 2011 NBCA 75, 376 N.B.R. (2d) 146; Blanchard v. Légère,2009 NBCA 2 (CanLII), 2009 NBCA 2, 339 N.B.R. (2d) 357; P.R.H. v. M.E.L.,2009 NBCA 18 (CanLII), 2009 NBCA 18, 343 N.B.R. (2d) 100; and Chapelstone Developments Inc. v. Canada2004 NBCA 96 (CanLII), 2004 NBCA 96, 277 N.B.R. (2d) 350, leave to appeal refused, [2005] S.C.C.A. No. 38 (QL)).


[17]                                                           In its purest form, the oral decision is delivered at the conclusion of a hearing or trial or as soon as practicable thereafter (see Rule 60.02(1) and compare with Rule 60.02(2) of the Rules of Court). More often than not the oral decision is delivered in circumstances where the case is factually driven and the case is of little or no precedential significance (e.g. "best interests of the child"). The irony is that most oral decisions are read aloud in open court from a prepared text that usually lacks the level of sophistication or detail expected of a reserved decision. However, regardless of the method chosen for delivering the reasons for decision, it is assumed those reasons will allow for meaningful appellate review. Context, however, is always important. For example, less is expected when it comes to rendering motion decisions as the record itself may provide a sufficient context to explain why the motion judge decided accordingly. This view is supported by Rule 60.01(1)(a) which contemplates simple "endorsements". But certainly in cases brought by Notice of Application under Rule 16 of the Rules of Court, there is a general expectation that the reasons for decision will address questions of law and mixed fact and law and, therefore, the application judge will offer an analysis that provides a cogent response to issues intelligently raised. Otherwise, the Court of Appeal simply becomes the de facto court of first instance, as happened here.


[18]                                                           Above all, the judicial obligation to provide sufficient and structured reasons cannot be avoided by sheltering behind the option of delivering an oral decision, well after the closing of arguments, in the expectation the transcript of those reasons will be provided only to the parties and, therefore, not subject to public scrutiny as is true of reserved decisions which are and must be distributed to all interested publishers. Public accountability and societal confidence in the judicial system are the objectives underscoring the general public's right of access. This is not to suggest that oral decisions in New Brunswick never make it to the public arena. Without exception all decisions of the Court of Appeal are available for publication in both official languages and there are judges of the Court of Queen's Bench who regularly edit, reformat and file oral decisions for publication in the conventional forum, when the decision is perceived to be of precedential significance or public importance.


[19]                                                           Parenthetically, we do not wish these reasons to be read as ignoring the daily workload judges in this Province must balance. Correlatively, however, the obligations to provide timely and appropriate reasons for decision are paramount realities. Sections 7.2,12.01(1) and (2)(b) of the Judicature Act, R.S.N.B. 1973, c. J-2, speak of the need to provide timely judgments (six months) and of the responsibility of the Chief Justice of the Court of Queen's Bench to ensure that obligation is honoured. It is trite to note that if the workload of any judge exceeds the boundaries of reasonableness the matter must be addressed internally, lest the obligation to provide sufficient reasons for decision be forgotten.



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