TOOLS AND TIPS TO ASSIST IN WRITING BETTER, MORE

EFFECTIVE REASONSBCCAT Annual Education Conference

Monday, October 6, 2014

• A conclusion by an adjudicator, having found certain facts and having applied principles of law to those facts.

• There is a natural relationship (overlap) between “decision making” and “decision writing”.

What is a decision in our context?

• Begins early – ends only after the decision has been signed off.

• Requires knowing what you must decide • Must identify the key issue(s) on which the

matter turns • Must include findings of fact – including

assessment of evidence, and reliability of witnesses you heard at the hearing

• Will apply the rules (law, regulation, policy)

• Must reach a conclusion that resolves the identified issues

The Process of Making a Decision

• It’s an answer. • An answer to what? • To a question or problem.

Therefore, to effectively decide (answer) something, one must first determine the problem, or question to be answered.

What is a decision in its simplest form?

The Key to effective decision making is to identify issues at the start. This occurs as soon as the matter is placed before you and is continually refined as the decision making process progresses.

Key to effective decision making

Issues may be questions of law, fact, or mixed fact and law, with subsequent or consequent additional determinations that may flow from decisions made on those issues, to the extent that the decision maker has jurisdiction.

What are Issues?

What am I being asked to decide here? Do I have the jurisdiction to decide this? Do I need to decide this?

A jurisdictional question, unless it is the central/substantial issue in the matter, is generally best dealt with first in the decision document before the central/substantial issue is addressed.

Primary Questions

Be aware that the issues that the parties may want to have addressed and the remedies they are seeking are not necessarily the issues that you can or must deal with. It is important that you ensure that the parties also understand the issues at the outset and whether the remedies they seek are available. Failure to do so can result in a lot of wasted time and effort by all.

Settle the matter of issues first

Issues should generally be stated in the form of questions. Why?

• Questions require an answer.

Form for Issues

Yes or No are answers. Are these answers sufficient in themselves?

• Usually not. These are clear outcomes, but in and of themselves are hardly transparent, justifiable and intelligible.

I think I see a clever shortcut

There is now a fourth element implicitly recognized by the Supreme Court of Canada in Dunsmuir in 2008.

• The right to reasons for the decision.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190

Why do decisions need to be transparent, justifiable, and intelligible?

• Justification: to provide adequate grounds for; substantiate; to show sufficient reason for.

• Transparency: permitting a clear view of the objects behind; easy to see through and understand; obvious.

• Intelligibility: the quality of being readily understood; clarity.

What do these terms mean?

Final decision

51. The tribunal must make its final decision in writing and give reasons for the decision.

Administrative Tribunals Act [SBC 2004] CHAPTER 45

What about here in BC?

• A good decision will have reasons that explain and justify it. The key objectives of public administration and administrative law hinge on people being able to obtain the reasons for decisions that affect them.

• Reasons are essential to fairness in decision-making. Knowing why a decision was made is as important as knowing what the decision is.

Reasons For Reasons

• Reasons contribute to rationality in decision-making. They prompt decision-makers to look closely at the relevant criteria for making decisions, and at conflicting arguments and information that must be considered in reaching them.

• Reasons ensure transparency in decision-making. Public confidence in the integrity of government is unlikely to exist where mystery and suspicion surround the decision-making process.

More Reasons for Reasons

• Reasons strengthen consistency in decision-making. Similar decisions can be compared, and contrasting decisions distinguished, when it is known why they were made.

• Reasons promote accountability in government. They enable people to question and challenge decisions, and to do so knowledgeably and on equal terms.

Some More Reasons for Reasons

• A court or tribunal in reviewing a decision will be guided initially by the explanation given by the decision-maker.

• If no reasons are given, the review body might infer that no good reasons can be offered. A reversal of the decision is then more likely.

Even More Reasons for Reasons

The most important part of a decision:

• The why. • The explanation. • The roadmap from the facts through

the law to the outcome.

What are Reasons?

All findings of fact must be based on evidence. A decision maker cannot find a fact, even by inference, unless there is some logically probative evidence to support that finding.

Findings in relation to the facts in issue must be based on evidence that is relevant and logically capable of supporting the findings. They must not be based on guesswork, preconceptions, suspicion or questionable assumptions.

Facts are derived from evidence

If the evidence was conflicting, the written decision should say which evidence was preferred and why. This does not preclude a decision maker from taking account of ‘notorious facts’, which are part of ordinary experience or common knowledge—for example, that each person’s handwriting is unique.

How much knowledge can I apply?

Although when gathering and hearing evidence you are not yet actively applying “the applicable tests”, you should continually bear in mind the issue(s) you must decide along with the applicable law, regulation, policy, rules, etc., because this will guide you in determining what evidence is material and/or relevant to the decision(s) you must make. Ask yourself:

Is the evidence, if believed, capable of creating a factual basis for the decision I must make?

Be Continually Aware of the Matrix in Which You Are Operating

A decision must be based on facts. One cannot begin to apply tests (law, regulation, policy, rules, etc.) until the relevant/material facts have been established.

A material fact is a fact that can affect the outcome of a decision.

A relevant fact affects the assessment of the probability that a material fact exists.

The factual findings should form a chain of reasoning that leads logically from relevant facts through material facts to the analysis applied to the material facts, followed by the decision.

Material Facts and Relevant Facts

. Some facts can be logically inferred, or deduced, from other facts on the basis of strong probability, without the need for direct evidence.

An inference that might be adverse to a person who will be affected by a decision should be put to that person, so that they have a chance to respond.

Drawing Inferences

Agreed upon or undisputed facts are factual information that is accepted by the decision maker and by the person or people who will be directly affected by the decision.

Try to identify the undisputed facts early in the decision.

These will serve as a solid footing for what follows, and may provide “anchors” for your analysis of the remaining relevant/material evidence.

Agreed Upon or Undisputed Facts

“Is it more likely than not…”

Remember your standard of proof.(Balance of probabilities)

In weighing evidence introduced to prove or disprove a given hypothesis, the intrinsic probability of the fact sought to be established is not to be overlooked. It requires less evidence to prove a fact that is highly probable in itself than one which is improbable, or which stands in a state of indifference.

Riedle Brewery Limited v. Merchants Fire Insurance Corporation of New York et al., [1926] 1 W.W.R. 497

Quoting Moore on Facts, Volume I

Practical application of the standard

•Now that I have heard it, how helpful is it?•Is the witness a good historian?•Was the witness in a position to see what he claims he saw?•Is there a motive for the witness to tell the story in a particular way?•Is the story internally consistent?•Is the story externally consistent?•How does the story match up against the anchors (undisputed facts)?

A Non-Exhaustive List of Questions/Concerns When Weighing

Evidence

• What was witness’s demeanour? • Was the witness relaying observations or conclusions? • Was the witness relaying observations or making argument? • Are the documents consistent with oral testimony? • Are the documents consistent with each other? • Is the video clear or blurry? • Is a still picture taken at the right moment? • Is the recording in context? • Is the witness’s culture/background a factor? • Am I imposing my own reality/generalization on what I am

hearing?

More Questions

• To resolve the conflict in evidence before you, test the evidence against all of the other documents, witness statements, videos, audio recordings, etc.

• Understand what the documents really say and try to place them in proper context.

• Do not simply flip a coin saying you prefer one version over the other because you will be required to justify your preference (Remember Dunsmuir and the ATA)

Articulating Reasons Where There is a Conflict in Evidence

Instead of using the term “Credibility”, try to substitute “reliability”.

That will focus your initial attention on what the witness has actually said, rather than why they may have said it. This more easily lends itself to analysis.

This is not a search for truth; it is an honest effort to try to determine what likely occurred.

Articulating Reasons Regarding Credibility

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of the consistency with the probabilities that surround the currently existing conditions...

… the real test of the truth of the story of a witness … must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. (p. 357)

Faryna v. Chorny, [1951] 4 W.W.R. (NS) 171, (1952), 2 D.L.R. 354 (B.C.C.A.)

The Common Test for Credibility

Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself – such as the common experience and observation that mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience. Whatever is repugnant to these belongs to the miraculous, and is outside of judicial cognizance.

Vice Chancellor Van Fleet of New Jersey

A Credible Witness Does Not Necessarily Mean Credible Evidence

• Cultural Biases • Educational Biases • Economic/class Biases • Religious Biases • Attitudinal Biases • Political Biases

Reliance On Common Experience Calls For Caution

• spontaneity • appropriate degree of detail • coherence or reasonableness • appropriate admissions and doubts • whether relates observations or conclusions • powers and abilities of witness • ability to observe • power of recollection • motive or bias of witness • cultural differences • demeanour of the witness (minor factor) • consistency with other witnesses • whether part of the evidence is reliable

Assessing Reliability of Witness’ Evidence

Readily Admissible Generally considered less reliable Medical Reports, however, are commonly

accepted and unless there is evidence to the contrary are usually relied upon

Evidence given through first hand knowledge weighs more heavily than evidence given through second hand knowledge

Hearsay Evidence

usually given by witnesses who are recognized as experts by training or qualification

important to ensure that the expert opinion is based on the true fundamental facts of the matter upon which the expert is being asked to give an opinion

The opinions of non-expert witnesses are not given significant weight because the witness giving the opinion is not qualified to do so, and/or their opinion is not reliable and therefore not logically probative of the relevant or material fact(s).

Opinion Evidence

The positions of the parties must be acknowledged and dealt with.

Paraphrasing is generally helpful in this area. Remember, you need only address the points

that are relevant to the issue(s) you must decide. You may acknowledge that other points or arguments were raised, but that they were not relevant to the matter(s) at hand and so will not be further referred to in the decision.

The Positions of the Parties

Once you have weighed the evidence, and reasoned the material facts, you must then subject those facts to the applicable tests established by the law, regulation, policy, or any other rules to which the matter placed before you for decision may be subject. By having clearly identified your issues from the start, it should be relatively straightforward to refer to and apply the applicable tests.

The Analysis - The Heart of the Decision

Paraphrasing is a useful tool when setting out background information and summarizing arguments. It is, however, a dangerous one when dealing with the wording of legislation, regulation, or policy. It is much safer to quote the relevant portion of the rule, rather than to try to paraphrase it. An inadvertent misstatement of the rule might well result in a misunderstanding of your decision and create a good chance of overturn by a reviewing body.

The Analysis - The Heart of the Decision

It’s not necessary to quote long tracts of law or policy. Selective quotes are fine, as long as they properly convey what the applicable statute, regulation, policy or rule actually says. Ellipses are your friend in many of these situations.

The Analysis - The Heart of the Decision

In a matter involving significant conflict of evidence, the bulk of the analysis conducted in the decision will likely occur in resolving those conflicts, through the methods we have discussed. This may take up most of the written decision and the final analysis may be relatively brief.

Once you have the material facts, reference to the wording of the applicable test (legislation, regulation, policy, or rule) will render your decision self-evident. The facts either satisfy the requirement, or they do not. Explaining the actual decision, or outcome, is a matter of a sentence or two.

The Analysis - The Heart of the Decision

If you have identified your issues early on, then you will already have gathered some notion of the applicable precedents (binding or otherwise) or other leading decisions

ensure that the parties have had notice of, and been given the opportunity to make submission relevant to the applicability of the precedents and/or leading decisions

Application of Precedent or Leading Decision

You may find that in the case at hand the application of the rules should be continued as previously done.

You may determine that the facts in the current matter are distinguishable from the facts in the previous decisions and so the decision in the current case should be something else. You must explain how this is so.

Precedents or Leading Decisions

You might wish to consider including in your decision the fact that you had considered the possibility whether an exception should be made, even if you had decided against making one.

It will show both the recipient and any reviewing body that you had turned your mind to the possibility of an exception and, by so doing you did not fetter your discretion.

Discretion

Consider inserting a summary of conclusions at the end of the decision. For example:

The issue was: Whether, more likely than not, the worker suffered personal

injury arising out of and in the course of employment on May 22, 2014.

For the reasons given, I find that the worker, more likely than not, suffered personal injury arising out of and in the course of employment on May 22, 2014.

Summary of Conclusions

The Summary of Findings at the end of your decision ensures that you have answered all the questions you set out to decide at the outset of the decision.

If you have not made findings that resolve all the issues you identified, then you know you are not yet finished.

Ensure that you have resolved all the issues

If you have made findings that resolve all the issues you identified, then you have completed your decision and you know that having made the findings, you have also provided reasons that render your decision transparent, justifiable and intelligible.

Pat yourself on the back, because this has been very hard work!

Completing a Decision