$5M judgment vacated, new trial ordered due to B.C. judge’s plagiarism

“About the most originality that any writer can hope to achieve honestly is to steal with good judgment.” Josh Billings (1815-1885) American humorist and lecturer.

In what is described as a “most troubling appeal”,  the British Columbia Court of Appeal in Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital and Health Center, 2011 BCCA 192,  has ordered a new trial and overturned a multi-million dollar judgment awarded to an infant plaintiff who suffered brain damage during his birth at the BC Women’s Hospital and Health Care Center.

The three-judge appeal panel were unanimous that a new trial should be ordered. However, the panel split 2-1 on the issue of whether the trial judge committed reversible error in delivering reasons copying wholesale, without attribution, plaintiff counsel’s written closing submissions. In dissenting reasons, Smith J.A. concluded that “the trial judge’s adoption of the respondents’ submissions as his reasons led him to err in his assessment of liability and damages”, but that “there are signs in the reasons that the trial judge applied his mind to the issues.” (at para. 22).

The majority took a more jaundiced view of the trial judge’s less than creative writing:

[111]     Despite this hardship for the parties, we are, with great respect, unable to agree with our colleague’s fundamental conclusion that the trial judge independently and impartially considered the law and the evidence and arrived at his own conclusions on the complex issues before him.  We conclude that the reasons for judgment must be rejected because they cannot be taken to represent the trial judge’s analysis of the issues or the reasoning for his conclusions.

[112]     On our analysis, the reasons for judgment do not meet the functional requirement of public accountability.  They cannot satisfy the public that justice has been done, and would, if accepted, undermine support for the legitimacy of the justice system.  On those bases, the reasons do not allow for meaningful appellate review.

[113]     When one closely examines the trial judge’s published reasons, laid side-by-side with the respondents’ written submissions, one is left with the indelible impression that the trial judge could not have applied his own reasoning process to the case.  This impression is most acute in that portion of the reasons that address liability.

[114]     It is true, as our colleague has noted, that 47 of the 368 paragraphs of the reasons are in the judge’s own words, or substantially his own words.  The reasons on liability run to 222 paragraphs, 30 of which are in the judge’s own words.  However, most of those paragraphs (20) address uncontroversial facts, or are introductory in nature, or simply summarize the respondents’ submissions.  No independent reasoning was required to be applied in those paragraphs and none is evident.

[115]     Rather than exhibiting any sign that the trial judge grappled with the difficult issues confronting him, one is left with page after page (84) of wholesale, uncritical reproduction of the respondents’ written submissions.

[116]     This most unfortunate circumstance renders this case factually distinguishable from most of the cases referred to by our colleague that have considered the issue.

While the judicial practice of adopting counsel’s submissions in written reasons is not unprecedented, the losing party and an appellate court must be able to discern the trial judge’s decision-making process and rationale. After all, the ratio decidendi in a written judgment presumes independent and impartial analysis of the facts, evidence and law. However, as the majority observes:

[120]     In the case at bar, the trial judge did not attribute any of the passages in his reasons to the respondents’ submissions.  In the majority of the cases referred to by our colleague, in which the trial judge adopted or reproduced a party’s submissions, the trial judge acknowledged that the analysis was taken from the submissions of one of the parties:  see R. v. Gaudet (1998), 40 O.R. (3d) 1, 125 C.C.C. (3d) 17 (C.A.); Sorger; Dastous; Ni-Met Resources Inc.; and R. v. Kendall (2005), 75 O.R. (3d) 565, 198 C.C.C. (3d) 205 (C.A.).  In only one case, Janssen-Ortho Inc. v. Apotex Inc., 2009 FCA 212, 392 N.R. 71, did the trial judge reproduce submissions without attribution.  In that case, Nadon J.A. commented that:

[77]      It would, in my respectful view, be advisable for a judge who intends to adopt a substantial part of a party’s written submissions to say so explicitly.  Where a judge is confronted with a complex factual case such as the one before us, the adoption of a party’s written submissions without an acknowledgment may lead to the impression that the judge has not done the work which he is called upon to do, namely, to examine all of the evidence before him and to make the appropriate findings.

The Rule of Law is based upon public accountability and transparency.  It is one thing for a judge to adopt only one party’s submissions with attribution (which is itself questionable); it is entirely another to plagiarize. The concepts of “reasonable apprehension of bias” “bringing the administration of justice into disrepute” quickly spring to mind. As the majority concludes:

[127]     Consideration of these principles in the context of the composition of the trial judge’s reasons for judgment has convinced us that the reasons do not meet the functional requirement of public accountability, and as such, are not amenable to meaningful appellate review of their correctness.  The form of the reasons, substantially a recitation of the respondents’ submissions, is in itself “cogent evidence” displacing the presumption of judicial integrity, which encompasses impartiality.  We have concluded that a reasonable and informed observer could not be persuaded that the trial judge independently and impartially examined all of the evidence and arrived at his own conclusions.  As noted in Teskey, impartiality is necessary to trial fairness.  None of the parties to this litigation was fairly treated by the failure of the trial judge to properly grapple with this case.  Neither they nor members of the public can be satisfied that justice has been done.  The reasons are not transparent and persuasive, and their acceptance by this Court would risk undermining the confidence of the public in the administration of justice.

[128]      As difficult as it will be for the parties to remount this trial, we have reluctantly concluded that there is no principled basis to deal with these appeals on their merits because the trial judge’s reasons for judgment cannot be considered to represent his reasons, do not meet the functional requirement of public accountability, and do not allow for meaningful appellate review.

(H/T: Gavin Ward at WardblawG: Law 2.0 and  on Twitter: @wardblawg)

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