Blog Post

Short & (Not So) Sweet: Appellate Review of Judges' Reasons

June 03, 2016


By: Robert Trenker

Brevity is not always a virtue, especially when a trial judge’s decision leaves the palate of an appellate court dry.  The line between insufficient reasons and succinctness was explored most recently in Dovbush v. Mouzitchka.

At issue in Dovbush was the characterization of monies advanced by the appellants for the purchase of a 25 per cent shareholding position in IMB+Records Inc. from the defendants, who are IMB+Records’ principals and shareholders.  Whereas the plaintiffs characterized the monies advanced as a refundable deposit, down payment, or loan repayable in the event that the transaction did not close, the defendants asserted that the monies were non-refundable partial payment of the purchase price of the shares.

Ultimately, the trial judge dismissed the action and accepted the defendant’s characterization of the monies advanced.  However, the Ontario Court of Appeal ordered a new trial on the basis that the trial judge’s decisions were “very brief.”  The insufficiency of the reasons provided by the lower court posed two difficulties for the appellate court:  first, it appeared that the trial judge may have mischaracterized the central issue to be determined and, second, the reasons did not provide the court with a meaningful opportunity to review the trial judge’s decision to see if this was indeed the case. 

The Court of Appeal holds that the duty to provide adequate reasons is based on the rationale that reasons are necessary to:

(i)… justify and explain the result; (ii) to tell the losing party why he or she lost; (iii) to provide public accountability and satisfy the public that justice has been done and is seen to have been done; and (iv) to permit effective appellate review…

Should a trial judge’s reasons run afoul this rationale, they will be susceptible to an appellate court ordering a new trial.

With notes from Spiros Vavougios