Appeal Court Complains About Some Trial Judges’ “Blizzard of Words” and “Factual Data Dump”
Although it is not technically a Family Law decision, the recent Ontario Court of Appeal ruling in Welton v. United Lands Corporation Limited offers advice to any judge who must rule on and write decisions in any area of the law. In particular the court cautions against judges using a “blizzard of words” or a “factual data dump” in their rulings; these can not only serve to obscure, but often result in the type of verbose judgment that lawyers, the parties, and any subsequent appeal judges must take extra time to read and digest.
The facts in Welton involved two brothers, David and John, who had worked together for decades on various projects. The latest was a joint venture to build two high-rise condominiums under a corporation called Stonebrook. They jointly agreed to hire David’s wife Darlene in the role of Stonebrook’s Vice President of Marketing and Sales. However, the brothers fell out over this condo development venture, and over Darlene’s role and compensation for certain additional services she provided during the development phase. Unfortunately the terms of Darlene’s employment with Stonebrook were never formalized. She was terminated at the end of 2012, and unsuccessfully sued Stonebrook for $1.35 million in unpaid commission in what was essentially a straightforward contractual dispute.
In the course of hearing – and ultimately dismissing – Darlene’s appeal, the Ontario Court of Appeal reviewed in detail the exhaustive 550-paragraph decision of the trial judge. After doing so, Court offered some important guidance to all fellow judges, regardless of the area of law, in connection with the task of writing judgments.
The Court of Appeal said:
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.
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. …
After explaining the desired structure to be used by judges in the initial course of writing their decisions (which is to first identify the legal issues, and then recite the facts), the Appeal Court continued:
It is important for trial judges to focus the analysis on the live issues that will decide the case. …
… 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 …
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.
The Court of Appeal then homed in on what it considered to be one of the fundamental problems with such overlong rulings, and used the present trial judge’s decision – now under appeal – in illustration:
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.
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.
For the full text of the decision, see:
Welton v. United Lands Corporation Limited, 2020 ONCA 322