The Powerpoint Presentation

BCCAT Annual Education Conference
Monday, October 6, 2014
What is a decision in our context?
 • 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”.
The Process of Making a Decision
 • 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
What is a decision in its simplest
 •
 •
 •
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.
Key to effective decision making
 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.
What are Issues?
 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.
Primary Questions
 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.
Settle the matter of issues first
 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.
Form for Issues
 Issues should generally be stated in the form of
questions. Why?
 •
Questions require an answer.
I think I see a clever shortcut
 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.
Why do decisions need to be transparent, justifiable,
and intelligible?
 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
What do these terms mean?
 • 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;
 • Intelligibility: the quality of being readily
understood; clarity.
What about here in BC?
 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
Reasons For Reasons
 • 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 decisionmaking. Knowing why a decision was made is as
important as knowing what the decision is.
More 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.
Some More Reasons for Reasons
 • Reasons strengthen consistency in decisionmaking. 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
Even More Reasons for Reasons
 • A court or tribunal in reviewing a decision will be
guided initially by the explanation given by the
 • 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.
What are Reasons?
 The most important part of a decision:
 • The why.
 • The explanation.
 • The roadmap from the facts through the law to
the outcome.
Facts are derived from evidence
 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.
How much knowledge can I apply?
 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.
Be Continually Aware of the Matrix in
Which You Are Operating
 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?
Material Facts and Relevant Facts
 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
 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
Drawing Inferences
 . 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.
Agreed Upon or Undisputed Facts
 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.
Remember your standard of proof.
(Balance of probabilities)
“Is it more likely
than not…”
Practical application of the standard
 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
A Non-Exhaustive List of
Questions/Concerns When Weighing
•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)?
More Questions
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?
Articulating Reasons Where There is
a Conflict in Evidence
 • 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
Articulating Reasons Regarding
 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.
The Common Test for 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.)
A Credible Witness Does Not
Necessarily Mean Credible Evidence
 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
 Vice Chancellor Van Fleet of New Jersey
Reliance On Common Experience
Calls For Caution
 •
Cultural Biases
Educational Biases
Economic/class Biases
Religious Biases
Attitudinal Biases
Political Biases
Assessing Reliability of Witness’
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
Hearsay 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
Opinion 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
The Positions of the Parties
 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 Analysis - The Heart of the
 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
 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
 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
 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
Application of Precedent or Leading
 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
Precedents or Leading Decisions
 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.
 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.
Summary of Conclusions
 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.
Ensure that you have resolved all the
 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
Completing a Decision
 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!

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