The Supreme Court of Canada heard an unusual case today. The basis of the appeal was not any action of the plaintiffs or the defendants, but rather one of the trial judge. In his 368-paragraph decision to award $4 million in damages to the plaintiffs, the trial judge is alleged to have copied 321 paragraphs from the plaintiff’s submissions.* (The fact that 20 of the 47 paragraphs written by the judge in his own words consist largely of uncontroversial facts or introductory passages didn’t help, either.)
On appeal, the majority of the B.C. Court of Appeal decided that it was not OK for a trial judge to deliver reasons for judgment that to a large extent reproduced the successful party’s submissions without attribution.+
Let’s be clear: there’s nothing inherently wrong with a judge’s adopting of parties’ submissions. In fact, from time to time, a party’s submissions may accurately reflect the judge’s opinion in rendering the decision. I have seen it done at various levels of the judiciary.
However, it’s one thing for judges to adopt analysis or submissions to aid their reasoning. But it’s another to cut and paste the reasons for judgment on a wholesale scale from the successful party’s submissions. The practice gives rise to concerns of perceived bias. To some it may even suggest the demise of judicial integrity.
Regarding the case at bar, there is very little evidence that the trial judge applied his own meaningful analysis, based on the evidence presented before the court, to reach a reasonable conclusion. In fact, a majority of the Court of Appeal found that the trial judge “failed entirely to deal with a cogent and uncontradicted defence” submitted by the defendants.
The two findings above, concluded the Court of Appeal, may lead the public to think that the judge has not done his job as an impartial umpire of complicated disputes and that he may not have examined all of the evidence before making his findings. As such, the Court of Appeal concluded that the decision in question could not stand. A new trial was ordered.
Unsatisfied with the prospect of a new trial, the plaintiffs obtained permission to bring the matter to the Supreme Court of Canada. The judges at the top court now must confront the matter and decide whether the trial judge’s wholesale importation of the successful party’s submission undermined the presumption of judicial integrity and impartiality.
*Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital, 2009 BCSC 494 (CanLII)
+Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital, 2011 BCCA 192 (CanLII)
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