



COURT OF APPEAL FOR ONTARIO

CITATION: Welton v. United Lands Corporation
    Limited, 2020 ONCA 322

DATE: 20200527

DOCKET: C67272

Lauwers, Huscroft and Thorburn
    JJ.A.

BETWEEN

Darlene Welton

Plaintiff (Appellant)

and

United Lands Corporation Limited
    and
Stonebrook Properties Inc.

Defendants (Respondents)

AND BETWEEN

Darlene Alice May Welton

Plaintiff (Appellant)

and

United Lands Corporation Limited
    and
Stonebrook Properties Inc.

Defendants (Respondents)

Sarah J. Erskine and Shannon Bennett,
    for the appellant

Cameron D. Neil, for the respondents

Heard: In Writing

On appeal from the judgment of Justice
    Antonio Skarica of the Superior Court of Justice, dated September 27, 2019,
    with reasons reported at 2019 ONSC 3623.

Lauwers J.A.:

[1]

Stonebrook hired the appellant, Darlene Welton, as Vice President of
    Marketing and Sales. A dispute arose concerning her compensation for sales for
    additional services she provided. She appeals the trial judges award of
    compensation to her on the basis that it was inadequate on the facts and the
    law. For the reasons that follow, I would dismiss the appeals on the merits.

A.

The factual context

[2]

David and John Welton were brothers and had
    worked together for decades. They incorporated Stonebrook Properties Inc. in
    2004 as a joint venture to build a condominium development in Mississauga. Each
    of their respective companies, Davwel Investments Inc. and Johwel Investments
    Inc., held a 50% share in Stonebrook. The brothers fell out over this
    development and, it appears, over the appellants role and compensation.

[3]

The Stonebrook development comprised two high-rise
    condominium buildings, with Phase I having 226 units and Phase II having 225 units.
    Phase I sales launched in 2006 and the building was substantially completed in
    2010. Phase II sales launched in 2010, but the building was cancelled in May
    2012, as the result of low sales.

[4]

In the late 1990s, the appellant was a marketing
    and sales director at Hunter Milborne, a brokerage firm retained by developers
    to sell pre-construction condominium units, earning about $150,000 annually. She
    met David Welton in 2003-2004 when the Welton brothers retained Milborne to
    replace another brokerage on their Oakridge Heights condominium development,
    which was an earlier project. The appellant married David Welton about one year
    later.

[5]

In 2005, Stonebrook hired the appellant as Vice
    President of Marketing and Sales. Her employment was terminated at the end of
    2012. During her tenure, the appellant received bi-weekly advances and some
    additional payments toward the ultimate remuneration owing to her. The trial
    judge accepted that Stonebrook paid her a total of $744,277.23.

[6]

On June 6, 2012, John Welton advised the
    appellant that her position would be terminated once the last units in Phase I
    were sold or transferred, which occurred in December 2012. The trial judge
    found that she received her last pay cheque at the end of December 2012, and,
    as of January 1, 2013, she was no longer employed by Stonebrook.

[7]

The case turned on the fact that the terms of
    the appellants employment were never formalized. The appellant brought two
    actions for compensation. She issued the 2012 Statement of Claim on October 25,
    2012, while still employed by Stonebrook, claiming unpaid sales commissions of
    about $1.35 million. In the 2015 action, the appellant claimed compensation in
    the amount of $440,000 related to the Tarion Warranty claim, particularly her
    Technical Audit work for Phase I from 2011 to 2013, including her settlement
    negotiations with its Condominium Corporation for outstanding deficiencies.

B.

ISSUES

[8]

This appeal raises four issues concerning the
    appellants compensation: The rate of commission the appellant was to receive for
    the Phase I sales; the rate of commission for the Phase II sales; compensation
    for her construction services work; and compensation for her work on the Tarion
    Warranty claim against Stonebrook. The fifth issue concerns the costs award
    made at trial.

[9]

I address each issue in turn.

C.

Analysis

(1)

Issues One and Two: The Rate of Commission on
    Phase I and Phase II Sales

[10]

It is convenient to deal with the first two
    issues together.

(a)

The Appellants Claim

[11]

As the appellant describes it, in the 2012
    action, she claimed commissions equaling the greater of 2% of sales revenue
    net of taxes for Phases I and II, or $220,000 per annum. By her calculation,
    as submitted to the trial judge, 2% totalled $1,330,997.22 for Phase I and
    $744,898.76 for Phase II. She advanced an alternative claim for $220,000 per
    year for seven years and four months, which amounted to $1,613,333.33.

(b)

The Trial Judges Award

[12]

The trial judge assessed the 2012 action in two
    parts corresponding to the developments two phases. He set a fair rate of
    remuneration for Stonebrook Phase I at 1.5% of net sales, net of HST/GST and
    insider sales: at para. 510. The trial judge deducted from this amount payments
    to sales agents and sales personnel per the industry standard practice and
    draws paid to the appellant: at para. 510. The appellants factum provides
    details of the trial judges calculations:

The trial judge calculated the amount owing to
    [the appellant] for Phase I as 1.5% of $67,635,404.30 which totaled
    $1,014,531.06. He then deducted the amounts paid to sales staff of $261,268 and
    the $744,277.23 in advances already paid to [the appellant] to arrive at
    $8,985.83. The trial judge calculated the amount owing to [the appellant] for
    Phase II as 1.5% of $37,244,938.20 which totaled $558,674.07. He then implied a
    further term to reduce this amount to one-third and deducted amounts paid to
    sales staff and amounts paid to [the appellant] of $6,800 and $6,257.71, respectively,
    to arrive at $173,166.98.

[13]

For Phase II, the trial judge found that pursuant
    to the usual practice , [the appellant] would be entitled to 1/3 of her
    commissions based on the same commission rate of 1.5% of net sales net of
    HST/GST as the project was cancelled before construction commenced: at para.
    511.

[14]

In the result, the trial judge awarded the
    appellant the following commissions, at para. 517:

·

Stonebrook Phase I: $8,985.83 (net of deductions
    and draws)

·

Stonebrook Phase II: $173,166.98

·

Total: $182,152.81

(c)

The Appellants Position at Trial

[15]

The appellant argued at trial that the agreed
    remuneration was the greater of $220,000 per annum or 2% commission on sales
    revenue net of taxes.
The
    trial judge traced the $220,000 per annum figure to a letter dated June 18,
    2012 and signed by the appellants husband David Welton. He noted: Crucially,
    this Tab 138 letter, dated June 18, 2012, signed by David and addressed to
    Darlene Welton confirm the verbal [agreement] between you and I
i.e.
David and
    Darlene: at para. 450.

[16]

The trial judge rejected the appellants
    evidence for two reasons. First, he relied on the evidence of Stonebrooks chief
    financial officer. Second, he invoked the appellants own evidence, at paras.
    451-452:

The Tab 138 letter also indicates the agreed
    upon remuneration is 2% of sales revenue or $220,000 per annum, whichever is
    greater. Sidney Dick, Stonebrooks chief financial officer, was shocked to see
    this $220,000 per annum claim. Accordingly, it can be concluded that Sidney
    Dick, a key financial officer, was never advised of an agreement of a minimum
    $220,000 per annum payment to Darlene. Sidney Dick testified that the
    subsequent Exhibit 1, Volume 3, Tab 148 demand letter from Darlenes lawyer
    asking for $220,000 came out of the blue, (the Tab 148 letter was dated July
    16, 2012).

In cross-examination, Darlene conceded that
    this reference to $220,000 per annum payment never appears in the documentary
    record prior to June 18, 2012.

[17]

Credibility was at issue in this case. The trial
    judge identified ten material inconsistencies and contradictions in the
    appellants evidence, which led him to reject her evidence as being neither
    credible nor reliable: at para. 414. He found that the appellant failed to
    prove there was an agreement to pay her a 2% commission of sales revenue net of
    taxes or $220,000 per annum, whichever was greater, at paras. 413-414, 458:

Darlenes evidence presented numerous
    inconsistencies. Further, as outlined above, she was also contradicted by her
    discovery evidence, filed exhibits, undertaking answers, and the evidence of
    other witnesses.

Accordingly, I find that Darlenes testimony
    was neither credible nor reliable. I reject her evidence, particularly her
    evidence regarding the alleged three-way agreement in 2006. I reject her
    evidence that John agreed to pay a 2% commission and/or $220,000 per year.



Considering the evidence that I have
    summarized and my analysis of it, I have come to the conclusion that the
    plaintiff has failed to prove that there was an agreement between John, David
    and Darlene for a 2% commission of sales revenue net of taxes or $220,000 per
    annum, whichever is greater[.]

[18]

In my view, the trial judges findings are amply
    justified by his extensive review of the evidence; the appellant has not
    identified a palpable and overriding error.

(d)

The Basis of the Trial Judges Commission Award

[19]

Stonebrooks chief financial officer testified
    that he assumed that the sales commission rate would be the same rate as that
    of prior sales consultants  1.5%  based on instructions received after a
    private meeting between the Welton brothers. Regarding this evidence, the trial
    judge noted, at para. 456:

Mr. Dick testified that three months before
    the first cheque to Darlene in May 2006, John, after a closed door meeting with
    David, told Mr. Dick that Darlenes sales commission would be the same sales
    commission rate as prior sales consultants. Mr. Dick assumed it would be 1.5%.

[20]

The trial judge found that there had been no
    further discussions apart from an understanding in accordance with Welton
    brothers tradition that the appellant would receive fair remuneration in
    accordance with industry standards and the brothers past practices regarding
    commission rates: at para. 490.

[21]

The trial judge determined that he should apply the
    principles of
quantum meruit
to determine the appropriate amount of
    remuneration in the absence of a formal written agreement: at para. 494. He found
    that the appellant had established a
quantum meruit
claim because she
    provided services at Stonebrooks request in circumstances that render[ed] it
    unjust for [Stonebrook] to retain the benefit conferred by the provision of the
    services: at para. 192. As the trial judge found, John and David hired the
    appellant to be the Vice President of Marketing and Sales and, based on the
    documentary record, it would be unjust for Darlene not to receive a fair
    commission for her services: at para. 494.

(e)

The Appellants Appeal Argument

[22]

On appeal, the appellant shifted her position
    and did not argue that there had been agreement on her compensation. Instead, she
    argued that the trial judge had not properly valued her services. The appellant
    asserted in her factum:

In light of all of the circumstances, $220,000
    per year is a fair and reasonable valuation of Mrs. Welton's services to
    Stonebrook, and what Stonebrook could reasonably expect to pay someone else to
    perform those services. For the period between 2006 through 2013, Stonebrook
    should pay Mrs. Welton $1,760,000 less advances already paid of $744,277.23.
    This results in a damages award of $1,015,722.77.

[23]

The appellant argued that the trial judge made a
    palpable and overriding error by: Making a finding of an industry standard
    [of 1.5%] in the absence of any evidence of such standard, and in conflict with
    the expert evidence adduced by both parties that there is no industry
    standard.

[24]

I would reject these submissions because the
    trial judges decision was rooted in the available evidence.

[25]

The appellants expert testified that there was
    no industry standard for sales commissions, but her report specifies that
    commission rates vary widely between 1% and 2%. Likewise, the respondents
    expert report stated there is no standard for commissions, but then summarized
    several attached agreements that set commission rates at between 1.25% and
    1.5%.

[26]

The trial judge canvassed the evidence on
    industry practice, at paras. 496-504, and concluded that 1.5% was a reasonable
    commission rate, within the experience and expectations of the [parties], and
    in conformity with industry standards: at para. 505. The trial judge also noted
    that 1.5% was midway between the 1% and 2% typical commission ranges as
    indicated at p. 3 of the plaintiffs Exhibit 8 expert report: at para. 505. He
    repeated this conclusion, at para. 510, before carrying out the calculation,
    based on a 1.5% sales commission rate, that led to the award for Phase I of the
    development.

[27]

On appeal, the appellant also challenged the
    trial judges deduction of amounts paid to sales staff of $261,268, renewing an
    argument she made at trial.

The appellant testified at trial that she did not
    agree that sales staffs salaries would be deducted from her commission. However,
    this evidence appears to conflict with an e-mail she sent to the company
    bookkeeper, Dolores Gosine, on August 3, 2011. In that e-mail, the appellant
    explains that Ms. Gosine had deducted salaries paid for
both
phases
    (emphasis in original). She asked Ms. Gosine to
recalculate the salaries paid for Stonebrook Phase I
    only and to remove any salaries paid to the others with the exception of the
    sales staff, receptionists, sales office part-time help, and opening event
    help. She then stated that all salaries paid, including my commission advances
    since June 4, 2010 [the date on which Phase II began], are to be applied
    against commissions earned for Phase II. When pressed on cross-examination,
    she agreed she could have been clearer in the e-mail and simply informed Ms.
    Gosine that none of those salaries were to be deducted from her commission, if
    the sales staffs salaries were irrelevant. The appellant then said she did not
    recall the e-mail at all or why she wrote it that way and what she was
    addressing in the e-mail.

[28]

In my view, the trial judge made no error in the
    deductions he made from the Phase I commissions.

[29]

Sales in Phase II began in spring 2010 and
    continued for just under two years. The trial judge found that due to
    insufficient sales to obtain the necessary construction loans John Welton
    decided that the project was no longer viable and would lose money. He
    cancelled Phase II in May 2012. The appellant claimed full commissions for the
    units sold in Phase II even though it was cancelled.

[30]

The trial judge reviewed comparable contracts
    provided by the experts and noted that the industry standard was to provide for
    cancellation, with payment of 1/3 of the commission for units on which the
    transaction closed. On that basis, he awarded the appellant 1/3 of her
    commissions based on a rate of 1.5% of net sales, net of HST/GST.

[31]

I see no error in the trial judges assessment
    of the commission rates applied to sales in Phase I and Phase II.

(2)

Issue Three: Compensation for Construction
    Services

[32]

The appellant submits that the trial judge
    failed to consider the expert evidence that the additional construction
    services [she performed]  were not services performed by an outside broker.
    The appellants expert testified that the additional construction services the
    appellant undertook did not fall under her mandate as Vice President of
    Marketing and Sales. Stonebrooks expert did not provide evidence on this
    point.

[33]

The appellant argues that she should receive
    $150,000 per year (2006-2009) for her services as Vice President of Marketing
    and Sales, and $249,800 per year from 2010 through to the end of 2013 when she
    also performed additional construction services previously performed by Colin
    Pillar. Accordingly, she values this work at about $100,000 per year from 2010
    to the end of 2013 based on the calculated differential between her salary and
    that of the Vice President of Development and Construction, Mr. Pillar, who was
    relieved of that work on the Stonebrook development. She argues that had she
    been unable to perform his duties, Stonebrook would have had to employ someone
    else to oversee the project. She asserts that the trial judge should have
    determined what Stonebrook would have to pay someone to perform those
    service[s] if she had not provided them.

[34]

The claim appears to be overstated because the
    appellants employment with Stonebrook ended in December 2012 and she did not
    begin to undertake this work until partway through 2010.

[35]

The trial judge found that both Darlene and
    Stonebrook benefitted from their arrangement: at paras. 496-497. Stonebrook
    leveraged its full time sales and marketing employee who could devote more
    time and effort than a broker could provide with respect to the Tarion
    process and construction issues (areas not normally done by brokers): at para.
    496. The trial judge found that the appellant anticipated commission in excess
    of her former base salary but was not exposed to the risks brokers commonly
    bear  [she] had no overhead and did not have to pay sales agents personally.
    Basically, her commission pay was being in part subsidized by Stonebrook for
    many years: at para. 497.

[36]

In my view, the trial judge did the best that
    could be done in the absence of evidence on the issue. The appellant provided
    no evidence as to the value of the additional construction services. I would defer
    to the trial judges findings on this issue.

(3)

Issue Four: Compensation for Work on the Tarion
    Warranty Claim

[37]

In the 2015 action, the appellant claimed unpaid
    wages of $440,000 related to the Tarion Warranty Claim, particularly her
    Technical Audit work for Phase I from 2011 to 2013, including her settlement
    negotiations with its Condominium Corporation for outstanding deficiencies.
    The trial judge dismissed this action.

[38]

The trial judge accepted that the appellant did
    some work on Tarion Warranty issues concerning the condominium building. Stonebrook
    settled the Tarion Warranty claim in November 2013 by paying $50,000 to the
    condominium corporation.

[39]

The trial judge
observed that the appellants
claim
    for work on the warranty issues ha[d] shrunk from an initial potential claim
    in 2015 of approximately $600,000 to a claim in 2016 of $440,000 to a claim in
    2019 of $220,000: at para. 550. The trial judge noted that the appellant
    submitted no invoices for this work over the years that she was involved with
    it, from February 2010 to November 2013, and did not mention it in the 2012
    action. The trial judge noted that:
The first invoice
    was service of the October 2015 Statement of Claim: at para. 529.

[40]

The trial judge analyzed this claim under the
    rubric of unjust enrichment and applied the correct test:
Moore v. Sweet
,
    2018 SCC 52, [2018] 3 S.C.R. 303. He concluded that the first two elements of
    unjust enrichment were established: the defendant received Darlenes services
    and Darlene was not paid for her Tarion Warranty services: at para. 552. However,
    he found that t
he claim did not
    survive on the third element: whether there was a
reason
    in law or justice for Stonebrooks retention of the benefit conferred by the appellant.

[41]

The third element of the unjust enrichment
    analysis consists of two stages. First, the plaintiff must demonstrate that
    the defendants retention of the benefit  cannot be justified on the basis of
    any of the established categories of juristic reasons: a contract, a
    disposition of law, a donative intent, and other valid common law, equitable or
    statutory obligations (internal citations omitted):
Moore
, at para.
    57.

[42]

At the second stage, the defendant bears the onus
    of rebut[ting] the plaintiffs
prima facie
case by showing that there
    is some residual reason to deny recovery (internal citations omitted):
Moore
,
    at para. 58. Here, the court considers two factors: the parties reasonable
    expectations and public policy considerations:
Moore
, at para. 58.

[43]

The trial judge focused on
the second stage, particularly on the parties
    reasonable expectations.
He found: By January 2013,
    Stonebrook was no longer paying [the appellant] and refused to pay her invoices
    as Johns opinion was that [she] was asking for unreasonable amounts: at para.
    553. Therefore, the trial judge considered it to be objectively reasonable for
    her to expect that Stonebrook would not pay for any future services provided
    by [her] for 2013: at para. 553. He pointed out that the appellant admit[ted]
    that given the litigation and background circumstances she herself expected
    that Stonebrook would refuse to pay voluntarily for any future services in
    2013, without legal intervention: at para. 553.

[44]

The trial judge observed that the appellant was
    involved in the Tarion Warranty process with Stonebrook in 2013, but found she
    was then employed by Davwel, which had a 50% interest in Stonebrook and had begun
    paying her salary as of June 2013.

[45]

The trial judge dismissed the appellants claim
    for unjust enrichment on the basis that, on the evidence, objectively it was not
    within the reasonable expectation of the parties that any of Darlenes services
    in 2013 would give rise to an after-the-fact claim for payment under the
quantum
    meruit
and unjust enrichment doctrine: at para. 554.

[46]

The trial judge identified and applied the
    correct legal principles in dismissing the 2015 action. The appellant has not
    identified any palpable and overriding factual errors.

(4)

Issue Five: The Trial Costs

[47]

The appellant seeks leave to appeal the costs
    award in the 2012 action, on the basis that the trial judge imposed r. 49.10(2)
    costs consequences on her even though the respondents offer to settle was not
    delivered at least seven days before the commencement of the hearing:
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194. It was delivered on May 13,
    2019, which was six calendar and four juridical days before the trial started.
    The offer was for $190,000 plus costs. At trial, the appellant was awarded
    $182,000, but was required to pay the respondents trial costs on the basis
    that, as the trial judge said: The defendants have beat their offer.

[48]

However, the offer must be put into context. The
    trial judge noted in his costs reasons that the only previous offer was made
    before the 2012 lawsuit began. He noted that: 
On July
    26th, 2012, the defendants, through their lawyer, offered a commission total of
    $14,898.26. The action was started in October 2012. It is hard to see the
    attitude of the guiding minds of the respondents as anything other than roundly
    contemptuous of the appellant and her claims. It appears that reason entered
    the picture mere days before the trial, and the date, in the context of the
    animosity, might well have been strategic, to assert maximum pressure at the
    very last minute.

[49]

The trial judge rejected the respondents request
    for substantial indemnity costs on the basis that there was no misconduct to
    justify such an award. He found he had residual discretion under r. 49.13 to
    impose r. 49.10(2) costs consequences on the appellant based on this courts
    decision in
König v. Hobza
, 2015 ONCA 885, 129 O.R. (3d) 57. He
    accepted the respondents submission that there was ample time for the
    appellant to deal with the offer even though it was too late.

[50]

In the result, the trial judge set off the
    appellants costs up to the date of the offer at $33,000 against the
    respondents partial indemnity trial costs, which he calculated to be
    $34,566.42, plus HST of $4,493.63, plus disbursements at $2,240.04, for a total
    of $41,300.09. The offset gave the respondents $8,300.09.

[51]

Reviewing courts should not readily interfere
    with the costs decision by a judge of first instance, whose decision is
    entitled to deference unless the judge made an error in principle or if the
    costs award is plainly wrong (internal citations omitted):
Hamilton v.
    Open Window Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27;
Boucher
    v. Public Accountants Council for the Province of Ontario
(2004), 71 O.R.
    (3d) 291 (C.A.), at paras. 19-20.

[52]

However, in my view, it was unreasonable for the
    respondents to make a last-minute settlement offer after the deadline expired
    and following a previous offer that can only be described as contemptuous. The
    trial judge invoked his residual powers under r. 49.13, but, as this court has
    explained, in exercising those powers he must adopt a holistic approach:
König
,
    at para. 35. In my view, the respondents did not comply with the spirit of rule
    49:
Lawson v. Viersen
, 2012 ONCA 25, at para. 46. Accordingly, this
    is not an appropriate case where the r. 49.10(2) costs consequences should
    apply against the appellant.

[53]

The costs consequences in r. 49.10(2) are real
    to the appellant. The appellant won a large amount of money in the 2012 action.
    Under ordinary principles, she is entitled to costs in the 2012 action.

[54]

The task is to determine the costs to which the
    appellant is entitled in the 2012 action. The trial judge awarded the appellant
    $33,000 in partial indemnity pre-trial costs. He awarded the respondents
    $41,300.09 in partial indemnity trial costs. In my view, the appellant is
    entitled to both her pre-trial and trial costs due to her success in the 2012
    action. I would accept the trial judges assessment of her pre-trial costs at $33,000
    and fix her trial costs at $41,000, which is about the amount he awarded the
    respondents. This amount reflects a fair and reasonable costs award in the
    circumstances; the court need not fix costs according to the exact measure of
    the actual costs to the successful litigant (internal citations omitted):
Boucher
,
    at para. 24. In total, the appellant is entitled to $74,000 in costs for the
    2012 action.

D.

DISPOSITION

[55]

For these reasons, I would dismiss the appeal. I
    would grant leave to appeal the trial costs award. I would allow the appellants
    costs appeal from the 2012 action and grant trial costs to her in the amount of
    $74,000. Because the respondents were otherwise successful on appeal, they are
    entitled to costs for the appeal in the amount of $25,000, which I would reduce
    to $20,000 in view of the appellants success on the costs appeal. The
    respondents costs will be offset against the appellants costs award in the
    2012 action.

[56]

I conclude by expressing a concern about the length
    of the reasons for decision in this case, which is reflective of an
    unfortunately growing trend, of which this is not the worst example, but it is
    the one before us.

[57]

Trial judges attend to the evidence in light of
    the relevant law, listen to it and think about it, draw appropriate inferences,
    distill the key evidence, make the factual findings, apply the law to the
    findings, and communicate the basis for the decision to the parties through the
    reasons. Of these various tasks, simply being present to receive the evidence
    is only a trial judges first step on the path to the decision.

[58]

More specifically, in their reasons trial judges
    identify the key issues; find the facts relevant to the issues; assess
    credibility and reliability where there is conflict; set out the chain of
    reasoning; make the decision; and then write the reasons to clearly communicate
    the decision. All of this is necessary for the reasons to be of acceptable
    quality and for there to be a meaningful right of appeal. (All of these
    elements are present in the reasons in this case but are somewhat hard to
    discern in the expanded text.)

[59]

Note that in setting out these essential tasks I
    have reversed the customary sequence in decisions, in which the recitation of
    facts precedes the statement of the issues. The problem I wish to highlight
    occurs precisely there. It makes good narrative sense to inform the reader by setting
    the context first, which involves telling the underlying story briefly. But the
    real marshalling of the facts according to their relevance and salience is only
    possible when the trial judge has identified the live issues. In short, factual
    determinations and descriptions should be issue-driven.

[60]

It is important for trial judges to focus the
    analysis on the live issues that will decide the case. Helpful guidance can be
    found in the somewhat analogous function that trial judges perform in crafting
    criminal and civil jury instructions: The obligation to review the substantial
    parts of the evidence and relate it to the issues that ripen for decision by
    the jury imposes no duty upon the trial judge to review
all
the
    evidence.
The role of the trial judge is to decant
    and simplify (internal citations omitted)
:
R. v. Saleh
, 2013
    ONCA 742, at para. 142,
per
Watt J.A. There is, to emphasize, no need
    to recite all of the evidence, even the irrelevant, or to refer to every
    argument made by every party, no matter how unhelpful:
R. v. R.E.M.
,
    2008 SCC 51, [2008] 3 S.C.R. 3 at paras. 11-12, 35-57;
Canada (Minister of
    Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, at para. 128.

[61]

Appellate courts see reasons for decision that do
    not address the evidence and the arguments and are criticized as conclusory, on
    the one hand, and decisions that leave nothing out, on the other hand. The task
    of a trial judge is to find the golden mean, to decant and simplify, to
    synthesize the evidence and make the necessary findings; the task is not to be
    a court reporter.

[62]

Many overly long decisions, including this one,
    contain what I would call a factual data dump. Pages 5-79 consist of a
    witness-by-witness account of examination in-chief, cross-examination, and
    re-examination. The analysis of the evidence starts at para. 394 on p. 79 and
    it repeats some of the evidence previously reviewed, adding to the length.

[63]

Perhaps this emerging style is artifact of
    electronic note-taking by judges, but it is not helpful and can be confusing. A
    blizzard of words can obscure. Digesting unduly lengthy reasons consumes far
    too much time because every word must be read by the parties, by their counsel
    at great expense, and by appellate courts. A data dump does not constitute fact-finding.
    It is an extended note to self best kept to oneself because it hinders the
    efficient and economical communication of judicial reasoning.

Released: P.L. May 27, 2020

P.
    Lauwers J.A.

I
    agree. Grant Huscroft J.A.

I
    agree. Thorburn J.A.


