Canada: Is Repetition The Sincerest Form Of Flattery? The Supreme Court’s Decision In Cojocaru V. British Columbia Women’s Hospital And Health Centre

Introduction

The Supreme Court has rendered its decision in Cojocaru v. British Columbia Women's Hospital and Health Centre, a case concerned with the propriety of judicial adoption verbatim of counsel's submissions in the Court's decision. Beyond the issue of when extensive incorporation of a party's submission into a judicial decision rebuts the presumption of judicial integrity and impartiality, the decision illustrates the difference between judicial writing and other forms of written expression. Unlike academic, artistic or scientific writing, judicial prose is not required, or indeed expected, to be original. All that is required is that the reasons demonstrate that the judge has considered the issues and made an independent assessment of them.

Background

The case of Cojocaru v. British Columbia Women's Hospital arose out of an attempt to deliver a child through "vaginal birth after caesarean section." During labour, the mother experienced uterine rupture, which restricted the infant's oxygen supply. An emergency caesarean section was performed, but the infant had suffered brain damage, which gave rise to cerebral palsy.

At trial, the hospital and three doctors involved in the delivery were found liable in negligence, and damages were awarded. The central issue on appeal was the fact that the trial judge reproduced a large portion of the plaintiffs' submissions in his reasons. While the trial judge did not accept all of the plaintiffs' submissions, the preponderance of verbatim citation, without attribution, from the plaintiffs' factum gave rise to the appeal. Indeed, 321 of the 368 paragraphs of the trial judgment were copied verbatim from the plaintiffs' submissions.

The British Columbia Court of Appeal set aside the trial decision due to the extensive copying of the plaintiffs' submissions. The Court of Appeal stated that the form of the reasons constituted "substantially a recitation of the [plaintiffs'] submissions," which in turn constituted evidence displacing the presumption of judicial integrity and impartiality. The plaintiffs appealed.

The Supreme Court's unanimous opinion was delivered by the Chief Justice. The Chief Justice commenced by stating that judicial decisions benefit from a presumption of judicial integrity and impartiality. To prevail on appeal, the defendants would have to displace the presumption, by demonstrating that "a reasonable person, apprised of the relevant facts, would conclude that the judge failed to come to grips with the issues and deal with them independently and impartially." The presumption of judicial integrity and impartiality is a high one, and can only be rebutted by "cogent" evidence. In the Supreme Court's opinion, the defendants failed to displace the presumption in this case.

Acknowledging that "extensive incorporation" of a party's arguments into the judge's reasons "may raise concerns" that the judge has failed to decide the issues independently and impartially, the Court reiterated that any alleged deficiency must be assessed objectively, through the eyes of a reasonable observer, having regard to all relevant matters:

"The question is whether a reasonable person would conclude that the alleged deficiency, taking into account all relevant circumstances, is evidence that the decision-making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the arguments and the issues, and decide them impartially and independently."

The Supreme Court observed that "judicial copying is a longstanding and accepted practice" and "part and parcel of the judicial process," while acknowledging that if "carried to excess" it may "raise problems." Neither failure to attribute sources nor lack of originality, in and of themselves, assist in determining whether the presumption of judicial integrity and impartiality has been displaced. The question is, in each case, whether the judge has put her mind to the issues at hand:

"The fact that a judge attributes copied material to the author tells nothing about whether she put her mind to the issues addressed in that copying

...

The concern about copying in the judicial context is not that the judge is taking credit for someone else's prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge's thinking."

Applying these principles to the appeal, the Supreme Court found that while the copying was "extensive," it did not indicate that the trial judge failed to engage with the issues and reach an impartial and independent decision on the evidence. The fact that the trial judge did write some original paragraphs and, perhaps more importantly, made findings on certain points contrary to the submissions of the plaintiffs, from whose submissions he copied the majority of his decision, made it "more difficult" to conclude his reasons did not reflect his thinking. The reasons of the judge dealt with all the salient aspects of the case, whether in his own words or in those borrowed from the plaintiffs' submissions. Notably, the Court observed that:

"considerations that require attribution in academic, artistic and scientific spheres do not apply to reasons for judgment. The judge is not expected to be original."

The Court thus allowed the appeal and found that the trial judge's decision was not to be set aside on the ground that it incorporated large parts of the plaintiffs' submissions into his reasons.

The Court, nevertheless, found a number of substantive errors in the trial decision, and reversed the decision on liability concerning all but one defendant. The Supreme Court held that only one of the physicians was liable in negligence. It left the quantum of damages undisturbed.

Significance of the Decision

The decision is significant for addressing the frequently raised concern regarding verbatim repetition of counsel's written submissions in judicial decisions. While the question regarding the appropriate extent of judicial repetition of counsel's submissions comes up with some regularity, Canadian courts, even prior to the Cojocaru decision, have shown acceptance of this practice. Most recently, the Quebec Court of Appeal has thus described its attitude to repetition of counsel's submissions in judicial decisions in Birdair Inc. c. Danny's Construction Company Inc., 2013 QCCA 580) (in translation):

"[59] It must be noted that lawyers generally provide such written arguments in long and complex matters. This demanding work for them is done with the purpose of aiding the judge in his reflection and facilitating his work in difficult cases. We should therefore not reproach him for taking inspiration from them. [...]"

The English Court of Appeal has recently addressed a similar situation in Crinion & Anor v IG Markets Ltd [2013] EWCA Civ 587.  The Court of Appeal, while decrying extensive repetition of counsel submissions, which preserved even the headings of the counsel's factum, as "thoroughly bad practice," nevertheless refused to overturn the appeal on that ground.  In the words of Lord Justice Underhill:

"[A] judge will often derive great assistance from counsel's written submissions, and there is nothing inherently wrong in his making extensive use of them, with proper acknowledgement, whether in setting out the facts or in analysing the issues or the applicable legal principles or indeed in the actual dispositive reasoning. But where that occurs the judge should take care to make it clear that he or she has fully considered such contrary submissions as have been made and has brought their own independent judgment to bear. The more extensive the reliance on material supplied by only one party, the greater the risk that the judge will in fact fail to do justice to the other party's case – and in any event that that will appear to have been the case. ... However, to say that the judgment was defective, even seriously so, is not necessarily to say that there has been an injustice which requires the appeal to be allowed."

In Cojocaru, the Supreme Court's decision unequivocally states that repetition, without more, does not displace the presumption of judicial integrity and impartiality. The judges' institutional role is not to be original authors but efficient and impartial decision-makers. Indeed, the judges' heavy workload and the need to adhere to established precedent militate against original writing. Nevertheless, the Supreme Court did not close the door entirely to this ground of appeal in appropriate cases. Therefore, while repetition of counsel's submissions in a judicial decision may be flattering to the counsel being quoted, it is, at best, a mixed blessing, since it creates the risk of a successful appeal.

Case Information

Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30

SCC Docket: 34304

Date of Decision: May 24, 2013

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