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A Decision Is Not a Mystery Novel: The Importance of Providing a Conclusion First

Cause you’re working/Building a mystery/Holding on/And holding it in/Yeah you’re working/Building a mystery/And choosing so carefully

Sarah McLachlin, “Building a Mystery”

Even lawyers will quickly flip (or scroll) to the end of a court or tribunal decision to see how the case turned out. Patient readers of mystery novels never read the last chapter first because much of the pleasure in reading is in the suspense of not knowing the outcome. However, decisions are not mystery novels and there is no purpose in making them suspenseful.

In recent years courts and tribunals have slightly improved their approach, often by putting the outcome in the first or second paragraph of a decision. This tends to read as “for the reasons set out below, the appeal/complaint/application is dismissed/allowed”. That is a start to informing the reader about the outcome. However, it might not be going far enough.

A recent report of a self-represented litigant (SRL) in a trademark dispute in the United Kingdom provides a good example of how challenging it can be for a litigant to understand a decision. After several days building up the courage to read the tribunal decision, she said, “It was quite a long document and I couldn’t really understand a lot of it as I had butterflies”. She was relieved when she saw the words “the opposition is unsuccessful”. In that case, the decision was 29 pages long.

In a commentary about the SRL’s experience, John Hyde wrote:

But in an age of speed reading and increasingly unrepresented parties, is it not time for new rules to ensure LiPs [SRLs] can understand the rulings that affect them? Start every judgment with a precis of the case and the decision, as well as any award resulting from it. This should be the norm for most cases and surely mandatory for those where one party has no lawyer available to explain it.

It should not matter whether a party to a dispute has a lawyer or not – a party should not have to pay a lawyer to decipher a decision for them.

In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (at paragraph 96), the Supreme Court of Canada talked about the responsibility of the decision maker to “justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion”. This does not require a summary of the conclusion at the beginning of a decision. However, such a summary could go a long way in making that decision transparent and intelligible.

Some courts have started to provide brief summaries of the decision. The Supreme Court of Canada, for example, has a “Cases in Brief” section on its website where it provides short summaries of the Court’s decisions “drafted in reader-friendly language, so that anyone interested can learn about the decisions that affect their lives”. These summaries are prepared by communications staff of the Court. The Court has attached this warning to the summaries: “[the summaries] do not form part of the Court’s reasons for judgment and are not for use in legal proceedings”.

The summary of the recent decision in Law Society of Saskatchewan v. Abrametz is illustrative. The summary is quite detailed, at 9 paragraphs. On the right of the web page is a box with a link to the decision as well as a useful “breakdown” of the decision – who wrote it, who agreed with the majority and who dissented. It also includes links to the lower court decisions, as well as a link to the webcast of the hearing. All of this information is available elsewhere but having it all in one location makes it much easier for the reader.

As Karen Sawatzky noted, the Cases in Brief is a “handy resource to refer to clients or self represented litigants who need to understand a decision but are struggling to read the legalese”.

The British Columbia Court of Appeal has opted for a different approach. Each decision starts with a summary. In the recent case of Brown Bros. Motor Lease Canada Ltd. v. Workers’ Compensation Appeal Tribunal, 2022 BCCA 20, for example, the summary was short and to the point:

The appellants appeal from an order dismissing their petition for judicial review of a decision of the Workers’ Compensation Appeal Tribunal. The tribunal determined that the respondents—non-resident members of a flight crew who were in British Columbia for a mandatory overnight layover—were not “workers in British Columbia” within the meaning of the Workers Compensation Act. On judicial review, the appellants took the position that the tribunal had incorrectly assessed the constitutional applicability of the statute. Held: Appeal dismissed. The reviewing judge was correct that the tribunal’s analysis was founded on statutory interpretation and was not patently unreasonable.

These are all good initiatives, but decision makers should be including within the first page of their decisions a summary of what the case is about, what the ruling is, and at least a general overview of how that decision was reached. In other words, decision makers should stop “holding it in”.

Comments

  1. This isn’t limited to judges. This is good advice for students or young lawyers who sometimes write memos exactly the same way.

    You found a statute or case that’s completely dispositive? That goes on page 1 near the top, not on page 9 so that you can build suspense with all of the dead ends you went down followed by a dramatic Scooby-Doo reveal.

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