Elements of a Good Decision

The Alberta Ombudsman analyzes administrative fairness across a broad range of formal and informal decisions.  Establishing a one-size-fits-all model for good decision-writing may not be practical.  To a certain extent, writing is a matter of one’s own distinctive style and decision-makers should have the freedom to respond to a case’s unique characteristics without having to adhere to a rigid set of rules.  Even so, there are fundamental elements that can be applied in writing a good decision.

The Alberta Ombudsman recommends the following be considered in preparing decisions that reflect administrative fairness, professionalism and accuracy.

 

Plain Language

  • Use plain language, presented in an organized and clear format.
  • Write short sentences.
  • Say what you have to say, and no more. This means avoiding flowery or unnecessary language.
  • Write with an active, not passive, voice.
  • Use simple, everyday words. Spell out acronyms, and avoid technical terms and jargon.  

 

Common Pitfalls 

As a decision-maker, you can encounter stressful and emotional situations.  Still, it’s necessary to keep those feelings and emotions out of your decision.  Remember, decisions are made based on the application of legal and administrative principles to the facts in a case.

  • Decisions should avoid relying on irrelevant considerations, and emotionally-charged statements and comments.
  • Avoid accusatory or demeaning language, and maintain a professional tone.  Use proper names and titles, and avoid referring to parties by their first name.
  • Read your decision several times before sending it, and don’t be afraid to re-write it if it doesn’t seem clear to you, or if it raises other questions.
  • Check your grammar and spelling: repeated errors in spelling, word usage, and grammar can distract the reader from an important and often serious message.  Always double-check your facts.  Is the legislation titled correctly?  Are dates accurate?  If possible, ask a co-worker to review your letter.  Another pair of eyes can spot mistakes or errors you might have missed.
  • Decisions should be logical; they should state not only the “what” but also the “why”.

 

Finally, a well-written decision should also draw on the following elements:

 

Preliminary Issues

This part of the decision is more typically applied in tribunal situations.  Here the decision-maker covers a number of important steps that should have occurred at the hearing, including:

  • Clearly articulating your legal authority in the written decision;
  • Determining whether there were objections to the members of the panel, or its jurisdiction to hearing the appeal;
  • Ensuring all parties are provided with the same information; and
  • Ensuring all parties have had sufficient time to prepare, and are ready to proceed with the hearing.

 

Legislative References

 Where possible, legislative references should be specific, and clearly indicate the relevant provisions considered in legislation and/or policy.  For example, in a case of eligibility under the Assured Income for the Severely Handicapped Act in relation to income for severely disabled adults, the references could include:

  • Sections 1(1)(a) and 3(3) of the AISH Act
  • Sections 2, 3 and 4 of the Assured Income for the Severely Handicapped General Regulation; and/or
  • AISH Program Policy: Eligibility Criteria.

 

Submissions

 This part of the decision should set out the main arguments of the parties involved.  Be careful not to confuse the parties’ submissions with findings of fact.  It is important to identify the parties’ submissions since a frequent complaint is that the decision-maker failed to consider all of the relevant arguments.

All the materials the decision-maker and parties considered should be itemized in the decision.  Documents should be labeled in such a way that they can be readily accessed by the reader.

 

Analysis

All written decisions should contain a section which sets out how the decision-maker arrived at the decision.  The important components of an analysis are:

  • Reasons for decision;
  • Findings and how they are supported by the evidence; and
  • Reason why the parties’ submissions were accepted or rejected.

The most common problem with written decisions is that they do not provide reasons or rationale.  Instead, they often reach a broad conclusion without supporting rationale.  In situations where there is conflicting evidence, the reasons should identify the decision-maker’s rationale for giving one piece of evidence more weight than another.  As the decision-maker, ask yourself these questions:  “Why did I accept this piece of evidence over another?  Why was a certain piece of evidence more relevant in relation to the specific legislation?”

As Sara Blake, a recognized expert on administrative law, points out:

“It is not sufficient to outline the evidence and argument and then state the tribunal’s conclusion.  Nor is it sufficient to repeat the applicable statutory provisions.  That does not reveal the rationale for a decision.  The most common fault in tribunal reasons is the failure to explain ‘why’.  With respect to each important conclusion of contested fact, law and policy, the reasons should answer the question, ‘Why did the tribunal reach that conclusion?’  Most importantly, reasons must explain why the material aspects of the position advocated by the losing party were rejected.

 “Reasons need not be lengthy.  In most cases, a few sentences explaining the rationale for each material conclusion is sufficient.  Reasons need not be given on every minor point raised during the proceeding nor must reference be made to every item of evidence…A transcript of the tribunal’s deliberations is no substitute for reasons, as it reveals only musings and observations by the panel members without coherently explaining the rationale agreed to by the panel…”[1]

 

Finalizing a Decision

 The name and title of the decision-maker must be clearly identified in the decision document, and the decision-maker should sign his or her name to the document.

If the decision is the result of a panel hearing, it must outline the people in attendance at the hearing, including the chair and panel members, authority representative(s), the authority’s witness or lawyer, the appellant, the appellant’s lawyer or advocate, and any other witnesses.  Observers should also be identified.

If there are available avenues of review or appeal, statutory or otherwise, they should be explained to the applicant either in a covering letter attaching the decision or in another clearly-worded format.

 

 

 

[1] Sara Blake, Administrative Law in Canada, Sixth Edition (2017), pp. 101-102.