The British Columbia Court of Appeal rejected a trial decision
because the decision below did not appear to be the result of
independent and impartial analysis: In Cojocaru (Guardian Ad
Litem) v. British Columbia Women's Hospital and Health
Center (2011 BCCA 192), a majority of the British Columbia
Court of Appeal ordered a new trial where the judgment of the trial
judge consisted of an excessive verbatim re-counting of the
successful party's written submissions. Appellants should
therefore closely observe whether judgments demonstrate an
independent analysis, and properly quote where they copy party
In his 368 paragraph written reasons for judgment, a trial judge
copied, without so acknowledging, 321 paragraphs almost word for
word from the respondents' written submissions. Furthermore, a
substantial number of the paragraphs independently written by the
trial judge address either uncontroversial facts or are
introductory in nature.
A majority of the British Columbia Court of Appeal held that the
reasons for judgment had to be rejected because they could not be
taken to represent the trial judge's analysis of the issues or
the reasoning for his conclusions. By explaining that a trial judge
is under an obligation to impartially in considering the law and
evidence, and to arrive at his own conclusions, the Court of Appeal
accepted that his failure to do so in the present case did not
allow for meaningful appellate review.
The Court of Appeal did accept that although it was not
appropriate in this case, in certain circumstances it is acceptable
for a trial judge to reproduce a portion of a party's
submissions. However, in those cases the trial judge must clearly
attribute any of the passages to the appropriate party's
submissions. A failure to do so would lead to the impression that
the judge has failed to examine all the evidence and make the
appropriate findings. In effect attributing copyright concepts of
attribution to the source of the quoted content.
The Court of Appeal focused particularly on the portion of the
reasons for judgment concerning issues of liability and noted that
for 192 paragraphs (out of a total of 222 paragraphs); the trial
judge inserted an uncritical reproduction of the respondent's
submissions. In doing so, the Court of Appeal concluded that the
trial judge failed to address the appellants' arguments and
evidence adduced in support of their position on liability.
The trial judge did not address, for example, a cogent and
uncontradicted defence argument on the issue of causation submitted
by the appellants at trial. The trial judge had not therefore
adequately informed the losing party of the reasons for their loss.
As a result, the majority held that a reasonable and informed
observer would conclude that the appellants had not received a fair
consideration of their case.
The Court of Appeal reviewed jurisprudence from the courts of
Canada and England & Wales and summarised the primary
objectives of reasons for judgment. First and foremost is the
functional requirement of public accountability – justice
has not only to be done, but has to be seen to be done. In this
regard, reasons for judgment are a demonstration of the trial
judge's integrity and impartiality and that he or she has
considered the evidence and issues and thereafter reached his or
her own conclusion. Second, reasons for judgment help ensure fair
and accurate decision making and allow for meaningful appellate
review. Finally, reasons for judgment are necessary to instantiate
the rule of law and support the legitimacy of the judicial
In allowing the appeal and remitting the case for re-trial, the
Court of Appeal held that the presumption of judicial integrity
(which encompasses impartiality) had been rebutted and that a
reasonable and informed observer would not be persuaded that the
trial judge examined all the evidence before him and made
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