Decision Writing
Agenda
Wednesday, February 3, 2010
9:00 Introductory Remarks
An Introduction to Decision Making and Reasons for Decisions
M. Jill Dougherty
Counsel, WeirFoulds LLP
How Do The Principles Of Natural Justice Affect Decision Making?
- Why do you need to give reasons?
- When are written reasons required, and when are they not required?
- what is the effect of a breach of the duty to give reasons? – important recent cases - The importance of timeliness
- How Much Respect will Your Decision Get from a Reviewing Court or Tribunal?
- Understanding the concept of deference
- jurisdiction
- findings of fact
- specialized expertise - The impact of significant changes to the law of “standard of review”
10:30 Networking Refreshment Break
Factors that Should or Should Not Influence Your Decision-Making
Luisa Ritacca
Partner, Stockwoods LLP
THE ROLE OF POLICY, PRECEDENT AND DISCRETION IN ADMINISTRATIVE DECISION-MAKING
- Appropriate use of policy in your decisions
- Sources of policy
- What precedent is binding and what is not?
- Rules vs. policies and guidelines
- Boards created by public-interest statutes
- Consistency of decisions of your board, and why it matters
- departing from past decisions - Policy and the reasonableness of the decision upon judicial review
- The differences between tribunals and arbitrators
ESSENTIAL ETHICAL ISSUES FOR ADMINISTRATIVE DECISION MAKERS
- Outside influence: what kinds of problems can arise, how can you deal with them, and why you need to be concerned
- internal influence
- external influence - How much can you rely on staff or tribunal counsel when writing decisions?
- what sorts of things are they allowed to discuss or advise on?
- appropriate tasks to delegate to staff
- legal limits on their participation
- tribunals with prosecutorial arms
- why the type of tribunal may make a difference - Bias and “reasonable apprehension of bias”
- With whom can you discuss the case?
- Confidentiality: within the tribunal and as claimed by parties
- are your notes confidential? - Consultation and circulating drafts within your tribunal
- is it allowed?
- is it a good idea?
- legal rules - When is it legitimate to change your mind, and when is it not legitimate?
- Scenarios for discussion
12:30 Networking Luncheon for Delegates and Speakers
Keynote Address: How To Be Reversed in Ten Easy Lessons
The Hon. Anne Molloy
Justice, Superior Court of Justice/ Divisional Court
2:45 Networking Refreshment Break
Mastering the Fact-Finding Process
Brian Gover
Partner, Stockwoods LLP
WHAT EVIDENCE CAN YOU CONSIDER?
- What is evidence and what isn’t?
- using the record
- evidence vs. argument: the role of counsel submissions, opening and closing statements - Understanding the difference between facts and evidence
- “Official notice” – how much can you resort to facts, such as knowledge of your community or private research, that were not in evidence?
- when do you have to notify counsel or the parties?
- how much can you rely on the expertise that got you appointed in the first place?
- usages of the trade and arbitration acts
WEIGHING THE ADMISSIBLE EVIDENCE
- Keeping track of the evidence during the hearing and after
- what if there is no transcript?
- electronic evidence
- making the most of working notes - Ensuring your decisions have an evidentiary foundation
- legal implications where they do not
Disputed vs. undisputed facts - How your factual findings affect the credibility of the decision in the eyes of the parties
- Weighing evidence
- hallmarks of reliability
- expressing your weighting of evidence in the reasons - Guidance from case law
- Appropriate uses of expert/opinion evidence
- Selecting the evidence that needs to be in the decision from the evidence that doesn’t
- sorting out what is relevant and what is not relevant - Structuring your recitation of the facts to support the overall reasoning of the decision
- Deciding and explaining which evidence you prefer and why
- Tips on making findings of credibility
- how to express and support findings on credibility
- the dangers of relying on demeanour - The standard of proof
Thursday, February 4, 2010
9:00 Issues and Analysis: Applying the Facts to the Law to Reach a Decision
Sharon Silberstein
Legal Advisor, Immigration and Refugee Board of Canada
Writing is really the end point of a process that includes actually making the decision. This session will help you do the analysis that
will form the heart of your decision.
Defining the Issues to Be Resolved
- What are the issues in the case?
- who decides what the issues are: the parties or the tribunal?
- stating them in a way that is helpful
- identifying issues that don’t need to be decided in order to reach the decision - Preliminary, procedural and interim issues: should you deal with them immediately or reserve on them?
- What if the parties have not identified the issues correctly or at all?
Applying The Law To The Facts
- Reviewing the statute
- purpose clauses
- jurisdiction
- mandatory criteria
- statutory interpretation - What can and should you do if counsel or self- represented parties were not particularly helpful with regard to the law?
- how much can you consider law that was not argued before the hearing? - Connecting the evidence and case law to the issues
- Deciding “in the alternative”
10:15 Networking Refreshment Break
Explaining Your Decision: Strategies for Writing Persuasive Decisions
The Hon. Paul Perell
Justice, Ontario Superior Court of Justice
- Three characteristics of a credible decision
- Identifying your primary and secondary audiences
- the winner, the loser, the appellate court/tribunal, the legal community?
- lawyers or non-lawyers?
- the special case of self-represented litigants - How do you write for all your audiences?
- What is the purpose of the decision?
Organizing the Reasons for Decision
- Thinking and planning before you write
- Structuring your reasons for decision
- Pros and cons of using templates
- Letting issues drive structure
- Reviewing and organizing the evidence
- Where do credibility findings go?
- Effective use of headings and subheadings
- What are the elements of a good decision?
- legal consequences if an element is missing - Reviewing and summarizing the arguments of counsel and the authorities provided
- Dealing with evidence on which you will not be relying
- Formats that work and don’t work
- Conclusion: beginning or end of the decision?
The Writing Process
- How to write a good introduction
- Effective use of context
- Making your reasoning transparent
- Six suggestions for editing your reasons
- When should you quote, and when should you paraphrase?
- how long should quotations be? - Polishing your writing style
- Tips for writing with clarity and concision
- Expressing fairness in your writing
- Plain language vs. legalese
- Avoiding ambiguity
- Avoiding belabouring the obvious
- How much do you need to include?
- what makes a decision too short or too long?
- things you should never leave out
- quotation of statutes and cases
- summarizing evidence and argument
- appropriate use of paraphrasing - Making the most of the available time
- tips for time management - Finding the appropriate style and tone
- how decision writing differs from other kinds of writing
12:15 Networking Luncheon for Delegates and Speakers
The Good, the Bad and the Ugly
David Goodis
Senior Counsel. Information and Privacy Commissioner/Ontario
In this interactive session, participants will examine a selection of published decisions, and discuss what works, what doesn’t, and how they could have been improved.
3:00 Networking Refreshment Break
A Hands-On Decision-Writing Exercise
David Goodis
Senior Counsel, Information and Privacy Commissioner/Ontario
Working in small groups, participants will apply the lessons of the entire course by rewriting a short decision, followed by discussion among the entire class.