With respect to the media, I'm not sure the term
"plagiarism" adequately covers the issue before the
Courts. In one case, an online news article about the case was
accompanied with a poll asking whether the reader has ever
plagiarized anything. This just confuses the issue!
The issue before the Supreme Court of Canada is not, at its
core, an issue of wrongful appropriation of the plaintiff's
argument. It's also not an issue of properly attributing the
source; nor is it a copyright issue.
It is relatively common for some parts of counsel's
submission to end up in a judgment, credited or otherwise. It's
not unheard of for a judge to request submissions in electronic
format, to make this process easier for the judge. This practice is
not usually problematic.
What sets this case apart is the magnitude of the copying - 321
out of 368 paragraphs of the judgment were lifted directly out of
the plaintiff's submissions. This substantial copying raises
the question of whether the judge did any independent analysis of
the facts and the law, and whether the judge considered the
defences raised by the defendant. In other words, it raises
the question of whether he in fact adjudicated the case! For
this reason, it would not have made a great difference had the
judge attributed the source without doing something more. The
problem isn't copying per se, it's the fact that without
independent analysis of the issues before the Court, the reasons
appeared inadequate and did not appear to meet the requirements of
judicial integrity and impartiality. The judge may have (and
probably did) weighed the evidence and reached his own conclusions,
which happened to be in line with the plaintiff's submissions.
However, by copying the submissions, it might not appear to the
public that he did so. It is of utmost importance in our justice
system that not only is justice done, it is seen to be done.
What plagiarism and the issue in this case have in common is the
perception of lack of integrity - as the Court of Appeal
...[T]he reasons [for judgment] 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. ....[I]mpartiality 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
The British Columbia Court of Appeal sent the matter back to
trial. This case involved a child born with brain damage and
allegations of medical malpractice - it is particularly unfortunate
that this case could not have been resolved at the first trial. It
will be interesting to see how the Supreme Court of Canada rules
both in terms of the so-called plagiarism issue given the
widespread practice of judicial copying, and in terms of the more
practical matter of whether the case should be sent back for
another lengthy and expensive trial.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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