Duty of Judges to Give Written Reasons: Harrison v. Burns (Ont. C.A.)

The Court of Appeal for Ontario decision in  Harrison v. Burns, 2011 ONCA 664, deals with procedural justice and the duty of judges to give written reasons.

Burns appealed the judgment of Hackland J. of the Superior Court of Justice dated March 1, 2011 granting the Harrisons the right to continue their action to establish a claim provable in Burns’ bankruptcy, granting the Harrisons summary judgment in the amount of $424,500, and adjourning the issue of whether the judgment debt should be discharged under the Bankruptcy and Insolvency Act to the motions court.

The parties entered into an agreement for Burns to build the Harrisons a home. During construction, the Harrisons paid Burns $424,500.  They alleged thathe failed to pay his subcontractors and suppliers with the money provided and then sued Burns in Ottawa. Burns defended the action and counterclaimed. Thereafter, he moved to New Brunswick and made an assignment in bankruptcy in that province, resulting in an automatic stay of the Harrisons’ action.

The Harrisons then brought a motion in Ottawa, and not in bankruptcy court in New Brunswick, for leave to continue their action, summary judgment and a declaration that the judgment would not be extinguished upon Burns’ discharge from bankruptcy.

The appeal panel,comprised of MacPherson, LaForme and Epstein JJ.A., held:

[5]              The motion judge heard the motion, with counsel representing the Harrisons appearing in the court in Ottawa and Burns representing himself by telephone from New Brunswick.  He rendered a judgment in the terms of the first paragraph above.  He provided no reasons for his judgment.

[7]              In our view, the appeal can be resolved on the basis of the fourth issue.  In R. V. Sheppard, [2002] 1 S.C.R. 869 at para. 18, Binnie J., quoting Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817, said that “in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for the decision.”

[8]              This is clearly one of those cases.  The serious jurisdictional issue in light of Burns’ bankruptcy in New Brunswick, the relationship between the Ontario action and the New Brunswick proceedings, and the fact that Burns was representing himself by telephone from New Brunswick, taken together, required that the motion judge provide an explanation for his decision.  He did not do so.

[9]              The appeal is allowed and the judgment below is set aside.  We observe that, with both parties now represented by counsel, the Harrisons are at liberty to bring a similar motion if so advised.

Readers may share my confusion as to what type of circumstances exist such that the duty of procedural fairness does not require the provision of a written explanation for the decision.

Among the reasons (no pun intended) for a trial judge to give reasons, Justice Binnie, writing for the Court in R. v. Sheppard ( a criminal appeal) notes,

1. The delivery of reasoned decisions is inherent in the judge’s role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large. (at para. 55).

In the civil context, the Supreme Court of Canada in F.H. v. McDougall 2008 SCC 53 (CanLII), (2008), 297 D.L.R (4th) 193 (S.C.C.) held that the adequacy of a trial judge’s reasons is based upon a functional assessment of whether they achieve their intended purposes. In F.H. v. McDougall, the Court held that a trial judge’s reasons serve the following main functions:

(i)       to justify and explain the result;

(ii)       to tell the losing party why he or she lost;

(iii)     to provide for informed consideration of the grounds of appeal; and

(iv)      to satisfy the public that justice has been done.

In Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388 (CanLII) , Epstein J.A. observed that:

[96]         Reasons also help to ensure fair and accurate decision making by focusing the judge’s attention on the key issues and helping to ensure that important points of law or fact are not overlooked: see R.E.M. at para. 12.

[97]         As the Supreme Court of Canada stated in H.S.B, at para. 8: “The task for the appellate court is simply to ensure that, read in the context of the entire record, the trial judge’s reasons demonstrate that he or she was alive to and resolved the central issues before the court.”  An appellate court “is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself”: see F.H. v. McDougall at para. 99, quoting Sheppard at para. 26.

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