COURT OF APPEAL FOR ONTARIO 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)
Counsel: 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 judge’s 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 appellant’s 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 appellant’s 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 appellant’s 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 Appellant’s 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 Judge’s Award
[12] The trial judge assessed the 2012 action in two parts corresponding to the development’s 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 appellant’s factum provides details of the trial judge’s 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 Appellant’s 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 appellant’s 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 appellant’s evidence for two reasons. First, he relied on the evidence of Stonebrook’s chief financial officer. Second, he invoked the appellant’s 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, Stonebrook’s 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 Darlene’s 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 appellant’s 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:
Darlene’s 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 Darlene’s 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 judge’s 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 Judge’s Commission Award
[19] Stonebrook’s 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 Darlene’s 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 Stonebrook’s 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 Appellant’s 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 judge’s decision was rooted in the available evidence.
[25] The appellant’s 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 plaintiff’s 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 judge’s 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 staff’s 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 staff’s 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 judge’s 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 appellant’s expert testified that the additional construction services the appellant undertook did not fall under her mandate as Vice President of Marketing and Sales. Stonebrook’s 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 appellant’s 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 judge’s 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 appellant’s 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 Darlene’s services and Darlene was not paid for her Tarion Warranty services”: at para. 552. However, he found that the claim did not survive on the third element: whether there was a reason in law or justice for Stonebrook’s 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 defendant’s 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 plaintiff’s 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 John’s 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 appellant’s 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 Darlene’s 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 court’s 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 appellant’s 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 judge’s 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 appellant’s 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 appellant’s success on the costs appeal. The respondents’ costs will be offset against the appellant’s 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 judge’s 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.”
