After a 30-day trial, the trial judge awarded over $5 million to
the plaintiffs for injuries caused during child birth. However, the
trial judge's reasons consisted largely of a reproduction,
without attribution, of the plaintiffs' written closing
submissions. In this appeal judgment, the majority of the British
Columbia Court of Appeal held that the reasons could not be taken
to represent the trial judge's analysis of the issues or the
reasoning of his conclusions. As a result, the Court of Appeal
rejected the reasons and ordered a new trial.
The majority of the Court of Appeal noted the "difficult
issues of principle" that arose from the format of the trial
judge's reasons. The Court found that the reasons did not
exhibit any sign that the trial judge had grappled with the
difficult issues confronting him, but rather "one is left with
page after page (84) of wholesale, uncritical reproduction of the
respondents' written submissions."
Of the 368 paragraphs of the reasons, only 47 were in the
judge's own words. Of the 222 paragraphs dealing with
liability, only 30 were in the judge's own words. However, 20
of those paragraphs were introductory in nature, addressed
uncontroversial facts, or simply summarized the plaintiffs'
The court referred to the case of R v RM,  3 SCR
3, where the Supreme Court of Canada explained the purpose behind
reasons for judgment: (1) reasons provide public accountability;
(2) reasons help ensure fair and accurate decision making
– the task of articulating the reasons directs the
judge's attention to the salient issues; and (3) reasons are a
fundamental means of developing the law uniformly for future
The Court of Appeal was particularly troubled by the fact that
the trial judge did not attribute any of the passages in his
reasons to the respondents' submissions. As noted by the
Federal Court of Appeal in Janssen-Ortho Inc v. Apotex
Inc, 2009 FCA 212, the adoption of submissions without
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 the evidence before him and to make the appropriate
findings." The majority of the Court of Appeal felt that this
impression had materialized in this case.
The Court was also troubled by the fact that the adoption of the
submissions led the trial judge to ignore certain important pieces
of information. For example, he failed entirely to deal with a
cogent and uncontradicted defence argument on the issue of
causation. As a result, he failed to discharge his burden of
informing the losing parties of the reason for their loss.
In the result, the Court held the trial judge's reasons
failed to satisfy the requirement of public accountability, and
therefore could not be the subject of meaningful appellate review.
The Court found that the presumption of judicial integrity and
impartiality was displaced. A "reasonable and informed
observer" would conclude that the appellants had not received
a fair consideration of their case. Acceptance of the reasons would
risk undermining the confidence of the public in the administration
Of note, the dissenting judge felt that the trial judge did
independently and impartially consider the law and evidence, but
would have overturned the trial decision on the substantive
findings of negligence and liability.
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