Decision-writing based on submissions from parties

Procedural fairness requires an impartial decision-maker, but that partiality may come into question where a decision-maker heavily incorporates one party’s submissions into reasons for judgment. The Supreme Court of Canada examined the question of when one should infer a lack of impartiality where much copying occurs in Cojocaru, a case where a trial judge, finding negligence by physicians, issued a 368 paragraph decision, but only 47 paragraphs were in the judge’s own words, and the rest came from the plaintiffs’ submissions.

The case involved a child who suffered brain damage during his birth, due to lack of oxygen. The parent and the child sued three nurses, three doctors and a hospital. The trial judge found three doctors, one nurse and the hospital liable for negligence, and assessed damages of $4 million, but much of the reasons came from the plaintiffs’ submissions. A majority of the BC Court of Appeal set aside the decision and ordered a new trial, due to the extensive copying. On further appeal, the Supreme Court of Canada found that such copying “without more” is not a basis for reversing the decision, [1] although it did find other errors warranting its reversing the findings against two of the three physicians, against the nurse and against the hospital.

Impartiality as an issue of fair process: The main issue was “whether a trial judge’s decision should be set aside because his reasons for judgment incorporated large portions of the plaintiffs’ submissions.” [1] This was “essentially a procedural complaint” [12] as a fair process requires (in addition to an opportunity to respond) “that the judge decide the issues independently and impartially”. [12] Accordingly the question was “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.” [13]

The presumption of integrity and impartiality: The courts will presume that a judicial decision is impartial. [15] The party seeking to set aside a judicial decision bears the burden of showing 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”. [18] The presumption “is a high presumption, not easily displaced.” [22] A party challenging the presumption must present “cogent evidence to displace the presumption.” [21; also 27]

The court found that the copying did not, without more, show bias. Judicial copying is “a longstanding and accepted practice” although one that may raise problems when “carried to excess”. [30] A “lack of originality alone” is not a flaw in judgment-writing. [31] Copying only rebuts the presumption of impartiality and integrity if “the copying is of such a character that a reasonable person apprised of the circumstances would conclude the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision.” [36] The court noted, however, that “good judicial practice” involved a judge explaining “in his or her own words her conclusions on the facts and the law”. [50]

The extent and quality of the copying: While the copying here was “extensive” [53] he did write some original paragraphs, and “made findings contrary to the submissions of the plaintiffs” from whom he copied. [55] The fact that the judge accepted some of the defendants’ submissions negates the inference that he did not come to grips with the issues, and that the reasons do not reflect his own decision on them. [61-62]

Ultimately, the Court concluded the judgment should not be set aside based on copying. But the court did find substantive errors by the trial judge which warranted its reversing findings against two doctors, a nurse and the hospital. [77 onward]

Conclusion: Copying by a decision-maker may not, by itself, show a lack of impartiality. A party challenging a decision involving copying likely must show something more to show that a decision-maker failed to make his or her own decision. However, the Cojocaru does not rule out the possibility that copying alone might some cases lead a reasonable person to conclude a lack of impartiality. Further, where a suspicion of partiality may ultimately originate from potential errors in reasoning that are themselves grounds for challenging a decision, apart from any issue of procedural fairness.

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