Introduction: The Joy
Justification, transparency and intelligibility in the decision-making process, coupled with acceptable outcomes which are defensible in respect of the facts and the law, are the hallmarks of sound regulatory tribunal decisions according to the seminal decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick.2 It follows that when tribunal members come to write their decisions they must ensure that their reasons justify the result reached and disclose a transparent, intelligible line of reasoning which supports and explains the result.
In the inaugural edition of the Energy Regulation Quarterly Professor David Mullan gave the following wise advice to tribunal members:
Where possible, base your decision on a careful examination of the facts, the intricacies of your own statutory regime, and the law developed by your own tribunal or agency precedents. The courts will generally respect your expertise and apply a deferential standard of review if you remain rooted in those issues.3
How does a tribunal member apply that advice in day-to-day practice? This short article seeks to offer tribunal members some practical direction about writing decisions, the part of the judicial job I most enjoy. I find decision-writing to be a joy, and through this article I hope to share some of my enthusiasm for that process. Of course, in the words of the old ABC Wide World of Sports intro, the thrill of completing a set of reasons can, in some cases, be followed by the agony of reversal by a reviewing court. Such is the life of front-line tribunals and courts which make the initial decisions. It is safe to say, however, that the harder a tribunal strives to meet the goals of justification, transparency and intelligibility, the less the chance its decisions will be reversed on review.
The Decision’s Audience
Reasons are meant to tell the parties what the tribunal has done and why it did so. Reasons should offer assurance to the parties that their positions were understood and considered by the tribunal in arriving at its decision. As put by the Ontario Divisional Court in one case, “reasons are required; not merely conclusions”.4
One of my former colleagues, Mr. Justice Dennis Lane, gave the following advice to tribunal members about identifying the audience for their reasons:
There are many audiences for your, and our reasons: the courts, the parties, the public, the press, the legal academics, and so on. The audience many decision-makers think of first is the Court of Appeal or the [Judicial Review] court. But I will tell you: it is a mistake to write for the reviewing court. To do so gets in the way of writing for the most important reader of all: the party who is about to learn that the case has been lost. If you can explain to that person in clear language why the case was lost, you will have no worries that a reviewing court will not understand what you did and why you did it. In general terms, write for the educated layperson; that is usually the description of the parties, so that is the same advice as writing for the losing party.5
Preparing to Write Your Reasons: Before and During The Hearing
The preparation for writing a decision starts before the hearing begins. The tribunal member must master the written record filed in advance of the hearing. Doing so enables the tribunal member to understand the issues in dispute and to ask questions at the hearing which clarify the issues and the evidence upon which the reasons must be based.
While most tribunals enjoy the availability of real-time transcripts of a day’s proceeding, a tribunal member needs to make some notes during each hearing day. A member should record:
- his views about the credibility and reliability of the evidence given by each witness;
- the plausibility of the various arguments advanced before the tribunal and his evolving views about those arguments as they are heard; and,
- those matters he wishes to raise with subsequent witnesses during the hearing.
At the end of each hearing day a member should take the time to prepare a short summary of his thinking about the issues based upon the evidence heard that day, in light of all the evidence heard up until that point of time. The last portion of the member’s daily notes should contain a kind of diary of the member’s evolving thoughts about the issues at play in the case and the possible outcomes on each issue. At the end of a typical trial day I usually spend up to 1.5 hours going over my notes, breaking them down into discrete issues for easy subsequent reference and putting down comments about witness credibility and my thinking on the issues.
Starting to Write the Actual Decision
Of course, the focus of a member’s efforts each day should be on ensuring that he understands the evidence given and the arguments heard, and so prepare for the next day’s evidence. But, at some point of time, a member has to start sketching out an outline of the decision, an outline which identifies the issues to be decided and the member’s preliminary thoughts on each issue.
Ideally, the process of sketching an outline should begin before the tribunal starts to hear evidence. The pre-filed evidence enables the identification of the issues in dispute, as well as the parties’ general positions on each issue. The originating document for the hearing, such as a notice of application, will specify the relief sought allowing the tribunal to know, in advance of the oral hearing, what it will be asked to do at the end of the hearing.
Preparing a preliminary outline of the structure of the reasons before the hearing begins serves several useful functions:
- it identifies for the tribunal the issues truly in dispute, the relief sought and the initial positions of the parties on each issue;
- it can serve as a roadmap for understanding the evidence which is led during the hearing, particularly if the evidence is adduced in a somewhat scattered fashion on the issues;
- it enables the tribunal to be alive to shifts in the parties’ positions and the relief requested as the hearing unfolds;
- by identifying the issues in dispute, the outline assists the tribunal in assessing objections made to evidence on the basis of lack of relevance to the issues at play in the hearing; and,
- it provides an overview of the entire matter which proves useful in reflecting upon the decisions which the tribunal will be called upon to make.
Understanding and organizing the issues before the hearing commences is the single most useful device to inform the tribunal’s decision-making thought process as the hearing unfolds.
Some tribunals will have access to staff to assist them during the hearing. The temptation always exists to draw upon the staff to review the pre-filed evidence and to assist in creating an outline of the reasons. Yet tribunal members must be alive to two issues. First, the law requires that only those who hear the parties’ representations can participate in the decision-making process. Accordingly, the job of resolving contested evidence is that of the tribunal, not of staff. Second, as a practical matter, the more a tribunal cedes review and organizational work to staff, the less the opportunity for tribunal members to review and to inform themselves about the evidence, the positions of the parties and the dynamic of evolving evidence during the hearing. High quality decision-making results from members who personally are well-versed in the evidence and the arguments. The more a tribunal delegates the review of the evidence and argument, the more the tribunal risks lowering the quality of its ultimate decision. While the temptation to delegate can be great where the volume of evidence filed is large, at the end of the day it is the tribunal members who are paid to make the informed, reasonable decision, not staff. There is no substitute for the extensive involvement of tribunal members in the review and the organization of the evidence and arguments.
The Key Factors When Writing Decisions
If justification, transparency and intelligibility are the end-goals for any decision, how do you get there? By employing in your reasons clarity, proximity, context, the “courage of selection”, and by answering the key question: Why?
Clarity: Reasons must clearly identify the issues for decision and identify the tribunal’s reasoning in reaching the decision on each issue. Ask yourself: will the average educated person be able to understand the decision?
Proximity: Avoid first reciting all of the facts and then proceeding to conduct an issue-by-issue analysis. Place the treatment of the facts relevant to an issue in proximity to your application of the law or policy to that issue and to the decision made on that issue.
Context: Place the issues for determination in their larger context. For example, is the issue a “one-off”, fact-specific one, or does it raise considerations which go beyond the immediate interests of the parties and engage larger policy considerations?
Courage of selection: Decide only what needs to be decided and only place relevant facts in the decision. The Supreme Court of Canada has provided guidance on this point in recent years:
Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allowed the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board).6
This court has strongly emphasized that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable: Construction Labour Relations v. Driver Iron Inc.7
Why? Make the “Why?” of the decision crystal clear. Explaining why you reached the decision is the most important aspect of understanding the train of thought which led you to that decision. Do not opt to obfuscate or try to avoid dealing with the difficult issues head-on. Reviewing courts have the uncanny ability to sniff-out tribunals’ attempts to avoid dealing directly with key issues. Reduced deference usually results from such avoidance efforts.
As well, a tribunal should always be alive to the power of the language which it uses in its reasons. Be temperate in the language you use.
Some Concluding Observations
Let me conclude by offering five additional pieces of practical advice about the decision-writing process.
First, at some point in the decision-writing process the tribunal member inevitably comes up against writer’s block. Creating and then following an organized, logical outline structure for your reasons is the best way to overcome writer’s block. If you take the time at the start to create a good structure, the decision often writes itself – simply take the time to work methodically and patiently through the evidence on each issue and then decide the issue. If you are in doubt about your preliminary decision on a particular issue, keep going through the rest of your reasons and circle back to that issue at a later time. Often, once you have made your preliminary determinations on all issues, it is easier to go back and revisit your decision on a particular one.
Second, more often than not it is the facts of the case that drive the result. Consequently, make your findings of fact before you turn to applying the law to the facts. Of course, as with any general rule, there is always an exception. If a case raises a novel issue of law or policy, take the time to understand the law or policy before turning to the evidence. It is easier to make specific findings of fact once you understand the legal or policy context in which those findings must be made because the legal principle or policy informs the process of ascertaining whether or not evidence is relevant.
Third, although setting out the positions of each party on each issue often is a good way to structure the legal analysis on an issue, one must remember that it is the governing legal principles, not the positions of the parties, which ultimately must inform your decision-making.
Fourth, having completed a first full draft of a judgment, review and revise it several times to ensure that it addresses all the issues and provides a coherent, logical analysis of each issue which fully rests on the facts and evidence. This stage of the decision-writing process often requires going back to review the parties’ written submissions and checking material facts. Several drafts of the reasons result. As part of this process, I find it helpful to read the draft reasons aloud several times. In addition to identifying typographical errors, the process of reading a decision out loud enables you to listen to your own thought process. If a portion of your reasons sound confusing, they most likely are confusing. Go back and rewrite them until they sound clear and persuasive.
Finally, on all but the most urgent of cases, employ the “overnight rule”. Having completed a draft of the judgment, sit on it overnight and thoroughly review it the following morning. Often the passage of 24 hours offers the decision-maker time to clarify his thought process and improve the decision’s language.
- Superior Court of Justice Ontario. An earlier version of these remarks was given at the CAMPUT Energy Regulation Course at Queen’s University in July, 2014.
- Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
- David J Mullan, “Regulators and The Courts: A Ten Year Perspective” (2013) 1, Energy Regulation Quarterly, 13 at 14.
- Clifford v Ontario (Attorney General) (2008), 90 OR (3d) 742, (Div Ct).
- Mr. Justice Dennis Lane, How to get Judicially Reviewed in an Infinite Number of Easy Lessons: A Report from the Trenches, The Canadian Institute, June 11, 2007.
- Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board,)  3 SCR 708 at paras 16-17.
- Construction Labour Relations v. Driver Iron Inc,  3 SCR 405 at para 3.