Cojocaru v. British Columbia Women’s Hospital and Health Centre

Cojocaru v. British Columbia Women’s Hospital and Health Centre
Collection
Supreme Court Judgments
Date
2013-05-24
Neutral citation
2013 SCC 30
Report
[2013] 2 SCR 357
Case number
34304
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
British Columbia
Subjects
Torts
Notes
SCC Case Information: 34304
Decision Content
SUPREME COURT OF CANADA
Citation: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357
Date: 20130524
Docket: 34304
Between:
Eric Victor Cojocaru, an infant by his Guardian Ad Litem, Monica Cojocaru
and Monica Cojocaru
Appellants/Respondents on cross-appeal
and
British Columbia Women’s Hospital and Health Centre and F. Bellini
Respondents/Appellants on cross-appeal
and
Dale R. Steele, Jenise Yue and Fawaz Edris
Respondents
And between:
Eric Victor Cojocaru, an infant by his Guardian Ad Litem, Monica Cojocaru
and Monica Cojocaru
Appellants/Respondents on cross-appeal
and
Dale R. Steele, Jenise Yue and Fawaz Edris
Respondents
and
British Columbia Women’s Hospital and Health Centre and F. Bellini
Respondents/Appellants on cross-appeal
- and -
Attorney General of Ontario, Trial Lawyers Association of
British Columbia and Canadian Bar Association
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 123)
McLachlin C.J. (LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. concurring)
Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357
Eric Victor Cojocaru, an infant by his
Guardian Ad Litem, Monica Cojocaru,
and Monica Cojocaru Appellants/Respondents on cross‑appeal
v.
British Columbia Women’s Hospital
and Health Centre and F. Bellini Respondents/Appellants on cross‑appeal
and
Dale R. Steele, Jenise Yue and Fawaz Edris Respondents
‑ and ‑
Eric Victor Cojocaru, an infant by his
Guardian Ad Litem, Monica Cojocaru,
and Monica Cojocaru Appellants/Respondents on cross‑appeal
v.
Dale R. Steele, Jenise Yue and Fawaz Edris Respondents
and
British Columbia Women’s Hospital
and Health Centre and F. Bellini Respondents/Appellants on cross‑appeal
and
Attorney General of Ontario, Trial Lawyers
Association of British Columbia and
Canadian Bar Association Interveners
Indexed as: Cojocaru v. British Columbia Women’s Hospital and Health Centre
2013 SCC 30
File No.: 34304.
2012: November 13; 2013: May 24.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for british columbia
Torts — Negligence — Causation — Health law — Consent to care — Failure to inform — Plaintiffs alleging defendants were negligent in failing to obtain informed consent to vaginal birth after caesarean section or to prostaglandin induction and in failing to attend to plaintiff — Plaintiffs alleging lack of proper care resulted in ruptured uterus and son born with brain damage — Whether trial judge’s conclusion on liability of various defendants disclose palpable errors of fact or legal errors and should be set aside.
Judgments and orders — Reasons — Trial judge delivering reasons for judgment consisting of reproduction of plaintiffs’ written submissions — Whether trial judge’s decision should be set aside because reasons for judgment incorporated large portions of material prepared by others.
Eric Victor Cojocaru, the son of Monica Cojocaru, suffered brain damage during his birth at the British Columbia Women’s Hospital and Health Centre. Ms. Cojocaru had previously given birth to a child by caesarean section performed in Romania. On the recommendation of Dr. Yue, Ms. Cojocaru’s prenatal care obstetrician, Ms. Cojocaru attempted to deliver Eric by “vaginal birth after caesarean section” or “VBAC”. On the day in question, Ms. Cojocaru’s labour was induced at the Hospital by Dr. Edris, an obstetrical resident, with prostaglandin gel. Ms. Cojocaru was under the care of the on‑call obstetrician, Dr. Steele. As Ms. Cojocaru was a high‑risk patient, she remained at the Hospital and was attended to by Nurses Verwoerd and Bellini. During her labour later in the day, Ms. Cojocaru experienced a uterine rupture, which restricted Eric’s oxygen supply. It was accepted that the scar from the previous caesarean section was implicated in the rupture. An emergency caesarean section was then performed. Eric suffered brain damage, which has given rise to cerebral palsy. Eric and his mother brought an action in negligence against the Hospital, the attending Nurses Bellini, MacQueen and Verwoerd and Drs. Steele, Yue and Edris.
At trial, the Hospital, Nurse Bellini and the three doctors were found liable in negligence and damages were awarded to the plaintiffs in the amount of $4 million. The trial judge’s reasons reproduced large portions of the submissions of the plaintiffs. However, the trial judge did not accept all the submissions of the plaintiffs, discussed a number of issues and stated his final conclusions in his own words. The majority of the Court of Appeal held that the trial judge’s decision should be set aside because of the extensive copying from the plaintiffs’ submissions and ordered a new trial. The dissenting justice did not set aside the judgment because of the copying, but reviewed the case on its merits, and determined that the actions against Dr. Steele, Dr. Edris, the Hospital and Nurse Bellini should be dismissed. He indicated that he would have also reduced the damage award against the remaining defendant, Dr. Yue. The plaintiffs appealed the order of a new trial. The Hospital and Nurse Bellini cross‑appealed asking that the issue of liability and damages be resolved by the Court, rather than sending the matter back for a new trial.
Held: The appeal and the cross‑appeal should be allowed.
As a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words her conclusions on the facts and the law. However, including the material of others is not prohibited. Judicial copying is a long‑standing and accepted practice, although if carried to excess, may raise problems. If the incorporation of the material of others is evidence that would lead a reasonable person to conclude, taking into account all relevant circumstances, that the decision‑making process was fundamentally unfair, in the sense that the judge did not put his or her mind to the facts, the argument and the issues, and decide them impartially and independently, the judgment can be set aside.
A complaint that a judge’s decision should be set aside because the reasons for judgment incorporate materials from other sources is essentially a procedural complaint. Judicial decisions benefit from a presumption of integrity and impartiality — a presumption that the judge has done her job as she is sworn to do. The party seeking to set aside a judicial decision because the judge’s reasons incorporated the material of others bears the burden of showing that the presumption is rebutted. The threshold for rebutting the presumption of judicial integrity and impartiality is high, and it requires cogent evidence. The question is whether the evidence presented by the party challenging the judgment convinces the reviewing court that a reasonable person would conclude that the judge did not perform her sworn duty to review and consider the evidence with an open mind.
The fact that a judge attributes copied material to the author tells us nothing about whether she put her mind to the issues addressed in that copying. Nor is lack of originality alone a flaw in judgment writing; on the contrary, it is part and parcel of the judicial process. To set aside a judgment for failure to attribute sources or for lack of originality alone would be to misunderstand the nature of the judge’s task and the time‑honoured traditions of judgment writing. 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. Extensive copying and failure to attribute outside sources are in most situations practices to be discouraged. But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity. This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision.
Here, taking full account of the complexity of the case, and accepting that it would have been preferable for the trial judge to discuss the facts and issues in his own words, it cannot be concluded that the trial judge failed to consider the issues and make an independent decision on them. The presumption of judicial integrity and impartiality has not been displaced. On the contrary, the reasons demonstrate that the trial judge addressed his mind to the issues he had to decide. The fact that he rejected some of the plaintiffs’ key submissions demonstrates that he considered the issues independently and impartially. The absence in the reasons of an analysis of causation, and the alleged errors the reasons contain, go not to procedural unfairness, but to the substance of the reasons — whether the trial judge, having made his own decision, erred in law or made palpable and overriding errors of fact. The judgment should not be set aside on the ground that the trial judge incorporated large parts of the plaintiffs’ submissions in his reasons.
This said, aspects of the reasons disclose palpable and overriding error and must be set aside. No causal connection was established between the injury and Dr. Yue’s alleged negligence in failing to verify the orientation of the previous caesarean scar before recommending VBAC. The finding of liability against Dr. Yue for recommending VBAC should thus be set aside. However, the evidence in this case supports the trial judge’s finding of liability against Dr. Yue for failing to obtain Ms. Cojocaru’s informed consent to VBAC and should therefore be affirmed. Dr. Yue failed to adequately inform Ms. Cojocaru of the risks of VBAC. There is however no evidence to support a causal relationship between the induction and the harm suffered and therefore, the finding of liability against Dr. Yue for failure to obtain Ms. Cojocaru’s informed consent to induction of the birth cannot be sustained. The trial judge’s findings on damages were supported by the evidence and disclose no palpable and overriding error that would justify appellate intervention.
Dr. Edris cannot be held liable for inducing labour without ascertaining the orientation of Ms. Cojocaru’s uterine scar because there was no causal connection between this alleged negligence and the injury. The evidence also failed to establish a causal link between Dr. Steele’s actions and the injury. Lastly, even if Nurse Bellini had observed and reacted to the signs of uterine rupture earlier, as the trial judge said she should have done, the child could not have been delivered in time to avoid permanent brain damage because no operating room staffed with an anaesthetist was available in time. Therefore, the trial judge’s findings of liability against Nurse Bellini, the Hospital, Dr. Steele and Dr. Edris must be set aside.
Cases Cited
Referred to: R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267; R. v. S. (R.D.), [1997] 3 S.C.R. 484; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; English v. Emery Reimbold & Strick Ltd., [2002] EWCA Civ 605, [2002] 3 All E.R. 385; Meadowstone (Derbyshire) Ltd. v. Kirk, 2006 WL 690588; Shin v. Kung, [2004] HKCA 205 (HKLII); James v. Surf Road Nominees Pty. Ltd., [2004] NSWCA 475 (AustLII); Fletcher Construction Australia Ltd. v. Lines MacFarlane & Marshall Pty. Ltd. (No. 2), [2002] VSCA 189, [2002] 6 V.R. 1; United States v. El Paso Natural Gas Co., 376 U.S. 651 (1964); United States v. Marine Bancorporation, Inc., 418 U.S. 602 (1974); Sorger v. Bank of Nova Scotia (1998), 39 O.R. (3d) 1; R. v. Gaudet (1998), 40 O.R. (3d) 1; Canada (Attorney General) v. Ni‑Met Resources Inc. (2005), 74 O.R. (3d) 641; 2878852 Canada Inc. v. Jones Heward Investment Counsel Inc., 2007 ONCA 14 (CanLII); R. v. Dastous (2004), 181 O.A.C. 398; R. v. Kendall (2005), 75 O.R. (3d) 565, leave to appeal refused, [2006] 1 S.C.R. x; Janssen‑Ortho Inc. v. Apotex Inc., 2009 FCA 212, 392 N.R. 71.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (a).
Authors Cited
Silverman, Gregory M. “Rise of the Machines: Justice Information Systems and the Question of Public Access to Court Records over the Internet” (2004), 79 Wash. L. Rev. 175.
Stern, Simon. “Copyright Originality and Judicial Originality” (2013), 63 U.T.L.J. 1.
APPEAL and CROSS‑APPEAL from a judgment of the British Columbia Court of Appeal (Levine, Smith and Kirkpatrick JJ.A.), 2011 BCCA 192, 17 B.C.L.R. (5th) 253, 303 B.C.A.C. 278, 512 W.A.C. 278, 44 Admin. L.R. (5th) 231, 81 C.C.L.T. (3d) 183, [2011] 7 W.W.R. 82, [2011] B.C.J. No. 680 (QL), 2011 CarswellBC 886, setting aside a decision of Groves J., 2009 BCSC 494, 65 C.C.L.T. (3d) 75, [2009] B.C.J. No. 731 (QL), 2009 CarswellBC 917. Appeal and cross‑appeal allowed.
Paul McGivern, Dan Shugarman, Ann Howell and Marie‑France Major, for the appellants/respondents on cross‑appeal.
Catherine L. Woods, Q.C., and Adam Howden‑Duke, for the respondents/appellants on cross‑appeal the British Columbia Women’s Hospital and Health Centre and F. Bellini.
James M. Lepp, Q.C., Mandeep K. Gill and Daniel J. Reid, for the respondents Dale R. Steele, Jenise Yue and Fawaz Edris.
M. David Lepofsky, for the intervener the Attorney General of Ontario.
George K. Macintosh, Q.C., and Tim Dickson, for the intervener the Trial Lawyers Association of British Columbia.
Mahmud Jamal and Raphael Eghan, for the intervener the Canadian Bar Association.
The judgment of the Court was delivered by
The Chief Justice —
I. Introduction
[1] The main question on this appeal is whether a trial judge’s decision should be set aside because his reasons for judgment incorporated large portions of the plaintiffs’ submissions. For the reasons that follow, I conclude that while it is desirable that judges express their conclusions in their own words, incorporating substantial amounts of material from submissions or other legal sources into reasons for judgment does not without more permit the decision to be set aside. Only if the incorporation is such that a reasonable person would conclude that the judge did not put her mind to the issues and decide them independently and impartially as she was sworn to do, can the judgment be set aside.
[2] This result, as we shall see, is consistent with longstanding practice in Canada and abroad. Yet, as the disagreement in the courts below and the arguments before us make clear, the jurisprudential framework and the governing principles involved are far from clear. This suggests the need to look carefully at the nature and function of reasons for judgment and the long tradition of judicial copying.
[3] Applying the principles discussed below, I conclude that the incorporation of large portions of the plaintiffs’ submissions in the reasons in this case does not justify overturning the trial judge’s decision. The presumption of judicial integrity and impartiality has not been displaced. On the contrary, the reasons demonstrate that the trial judge addressed his mind to the issues he had to decide. This said, aspects of the reasons disclose palpable and overriding error and must be set aside. In the result, I would allow the appeal, but vary the trial judgment.
II. Statement of Facts
[4] Eric Victor Cojocaru, the son of Monica Cojocaru, suffered brain damage during his birth at the British Columbia Women’s Hospital and Health Centre (“Hospital”). Ms. Cojocaru had previously given birth to a child by caesarean section performed in Romania. On the recommendation of Dr. Yue, Ms. Cojocaru’s prenatal care obstetrician, Ms. Cojocaru attempted to deliver Eric by “vaginal birth after caesarean section” or “VBAC”. Ms. Cojocaru’s labour was induced by Dr. Edris, an obstetrical resident, with prostaglandin gel at the Hospital in the morning of May 21, 2001. May 21 was a holiday, and Dr. Yue’s patients — including Ms. Cojocaru — were under the care of the on-call obstetrician for that day, Dr. Steele. As Ms. Cojocaru was a high-risk patient, she remained at the Hospital during the day. In the afternoon, she was attended to by Nurses Verwoerd and Bellini. During her labour later that day, Ms. Cojocaru experienced a uterine rupture, which restricted Eric’s oxygen supply. The parties have accepted that the scar from the previous caesarean section was implicated in the rupture. An emergency caesarean section was then performed. Eric suffered brain damage, which has given rise to cerebral palsy.
[5] Eric and his mother brought an action in negligence against the Hospital; attending Nurses Bellini, MacQueen and Verwoerd; and Drs. Dale R. Steele, Jenise Yue and Fawaz Edris.
III. Judgments
[6] The trial judge found the Hospital, Nurse Bellini and three doctors liable in negligence and awarded damages to the plaintiffs in the amount of $4 million (2009 BCSC 494, 65 C.C.L.T. (3d) 75). The trial judge’s reasons reproduced large portions of the submissions of the plaintiffs. However, he did not accept all the submissions of the plaintiffs, discussed a number of issues and stated his final conclusions in his own words. He dismissed the claims against Nurse MacQueen and Nurse Verwoerd, and varied the quantum of damages from that suggested by the plaintiffs.
[7] The majority of the Court of Appeal, Levine and Kirkpatrick JJ.A., held that the trial judge’s decision should be set aside and a new trial ordered. The “form of the reasons, substantially a recitation of the [plaintiffs’] submissions” constituted cogent evidence displacing the presumption of judicial integrity and impartiality (2011 BCCA 192, 17 B.C.L.R. (5th) 253, at para. 127). The majority of the Court of Appeal also found that the reasons failed to fulfill the functions of advising the parties and the public of the reasons for his decision and of providing a basis for appellate review.
[8] Justice K. J. Smith dissented. The issue was whether the presumption of judicial integrity and impartiality was rebutted. The question was “whether a reasonable and informed person, considering all the circumstances, would apprehend that the trial judge failed to independently and impartially consider the evidence and the law and to arrive at his own conclusions on the issues” (para. 29). He concluded this test was not met. While the copying was “troubling” (para. 22), the reasons showed that the trial judge had applied his mind to the issues, done his own analysis and reached his own conclusions. This said, the trial judge had “overlooked and misapprehended important evidence, made errors in his legal analysis, and failed entirely to deal with a cogent defence argument” (para. 31). Reviewing the case on its merits, the dissenting Justice determined that the actions against Dr. Steele, Dr. Edris, the Hospital and Nurse Bellini should be dismissed. He indicated that he would also have reduced the damage award against the remaining defendant, Dr. Yue, but did not pursue this issue in light of the majority’s order for a new trial.
IV. Issues
[9] The issues are as follows:
A. Should the trial judge’s decision be set aside because it copied large portions of the plaintiffs’ submissions?
B. If the judgment is not set aside for copying, does it disclose palpable errors of fact or legal errors?
A. Should the Trial Judge’s Decision Be Set Aside Because it Copied Large Portions of the Plaintiffs’ Submissions?
[10] This was a complex case involving many issues. The trial judgment, rendered some time after a lengthy trial, consisted of 368 paragraphs. Only 47 were predominantly in the judge’s own words; the balance of 321 paragraphs was copied from the plaintiffs’ submissions. This raises the concern that the trial judge did not put his mind to the issues, the evidence and the law as he was sworn to do, but simply incorporated the plaintiffs’ submissions.
[11] The question before us is whether a trial judge’s decision should be set aside because his reasons incorporate large portions of material prepared by others, in this case the plaintiffs.
1. A Matter of Procedure
[12] Judicial decisions can be set aside either for substantive errors or procedural errors. A complaint that a judge’s decision should be set aside because the reasons for judgment incorporate materials from other sources is essentially a procedural complaint. It goes not to whether the decision is correct on the merits having regard to the evidence and the law, but to whether the process by which it was reached is procedurally fair. A fair process requires not only that the parties be allowed to submit evidence and arguments to the judge, but that the judge decide the issues independently and impartially as the judge is sworn to do. Extensive incorporation may raise concerns that the judge has not done so.
[13] To determine whether a defect relating to reasons for judgment is evidence of procedural error negating a fair process, the alleged deficiency must be viewed objectively, through the eyes of a reasonable observer, having regard to all relevant matters: see e.g. R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267. Reasons need not be extensive or cover every aspect of the judge’s reasoning; in some cases, the basis of the reasons may be found in the record. 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.
2. The Presumption of Judicial Impartiality
[14] Society entrusts to the judge the weighty task of deciding difficult issues of fact and law in order to resolve disputes between citizens. Judges are appointed from among experienced lawyers and are sworn to carry out their duties independently and impartially.
[15] Judicial decisions benefit from a presumption of integrity and impartiality — a presumption that the judge has done her job as she is sworn to do. This reflects the fact that the judge is sworn to deliver an impartial verdict between the parties, and serves the policy need for finality in judicial proceedings.
[16] Courts have repeatedly affirmed that the starting point in an inquiry such as this is the presumption of judicial integrity and impartiality. In Teskey, Charron J., for the majority, stated, at para. 19:
Trial judges benefit from a presumption of integrity, which in turn encompasses the notion of impartiality. . . . Hence, the reasons proffered by the trial judge in support of his decision are presumed to reflect the reasoning that led him to his decision.
[17] Justice Abella, in dissent, agreed, writing at length about the judicial history of the presumption of integrity and the purposes it serves:
The presumption of integrity acknowledges that judges are bound by their judicial oaths and will carry out the duties they have sworn to uphold. This includes not only a presumption — and duty — of impartiality but also of legal knowledge. . . . [J]udges are presumed to know and act in accordance with their legal responsibilities . . . . [para. 29]
[18] The presumption of judicial integrity and impartiality means that the party seeking to set aside a judicial decision because the judge’s reasons incorporated the material of others 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. In Teskey, Charron J. wrote, at para. 21:
Even though there is a presumption that judges will carry out the duties they have sworn to uphold, the presumption can be displaced. The onus is . . . on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the [presumption is rebutted by the reasons].
[19] Similarly, Abella J. in Teskey stated, at para. 33:
The test for displacing the presumption, therefore, requires that the apprehension of bias be reasonable in the eyes of someone who is reasonably informed about all the relevant circumstances. Those circumstances include “the traditions of integrity . . . and . . . the fact that impartiality is one of the duties the judges swear to uphold”.
[20] The threshold for rebutting the presumption of judicial integrity and impartiality is high. The presumption carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 32, per L’Heureux-Dubé and McLachlin JJ., cited in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59.
[21] Teskey illustrates how attacks on judicial decisions on the basis of defects relating to the judgment process should be approached. In that case, the trial judge had convicted the accused, with reasons to follow. No reasons were forthcoming. Finally, the trial judge delivered elaborate reasons 11 months after the convictions, and only after repeated requests from counsel. The defence argued on appeal that the reasons were after-the-fact justifications of the verdict, raising concerns about whether the judge at the time of the convictions had considered the law and applied it to the evidence as he was sworn to do. A majority of this Court, per Charron J., set aside the convictions. The minority, per Abella J., would have upheld the convictions. Both judgments agreed that the starting point was the presumption of judicial integrity, and that the onus is on the party assailing the reasons to present cogent evidence to displace the presumption.
[22] The basic framework for assessing a claim that the judge failed to decide the case independently and impartially may be summarized as follows. The claim is procedural, focussing on whether the litigant’s right to an impartial and independent trial of the issues has been violated. There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently.
[23] I add this. The Court of Appeal proposed, and it was argued before this Court, that the problem of copying attracts a “functional” inquiry into whether the reasons are adequate to advise the parties and the public of the reasons for the decision and to provide a basis for appeal.
[24] In the criminal context, it has been held that reasons for judgment that do not fulfill these basic functions may result in a judgment being set aside if the appellate court concludes that it is a case of unreasonable verdict, error of law, or a miscarriage of justice within the scope of s. 686(1) (a) of the Criminal Code, R.S.C. 1985, c. C-46 : R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.
[25] This Court has not explored whether, and if so how, this approach applies in civil cases, although it has twice considered and rejected the argument that reasons were functionally insufficient: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129. In the administrative law context, it has held that challenges to the reasoning or result of a decision do not attract an independent sufficiency analysis and should be dealt with within the overall reasonableness analysis: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708.
[26] In a case such as this, the essence of the complaint is not that the reasons are functionally insufficient — the parties agree that on their face, the reasons explain what was decided and provide a basis for appellate review — but rather that the judge’s wholesale incorporation of the material of others shows that he did not put his mind to the issues and decide them impartially. It is a complaint not about sufficiency, but about process, and stands to be resolved on the basis of the core analysis in Teskey — whether the presumption of judicial impartiality has been rebutted.
3. When Is the Presumption of Judicial Integrity and Impartiality Rebutted?
[27] The presumption of judicial integrity and impartiality is a high one, which can be rebutted only by cogent evidence.
[28] Procedural defects relating to reasons for judgment are many and varied. In all cases, the underlying question is the same: Would a reasonable person, apprised of all the relevant circumstances, conclude that the judge failed to come to grips with the issues and make an impartial and independent decision, thereby defeating the presumption of judicial integrity and impartiality?
[29] Evidence capable of displacing the presumption of judicial integrity and impartiality may take different forms. It may be intrinsic, arising on the face of the reasons themselves. For example, no reasons or unintelligible reasons may be challenged by the form of the reasons themselves. Or it may be extrinsic: for example, evidence that the judge issued a decision before receiving the submissions of counsel touching on an important issue; that the judge was overheard telling someone that he was determined to find in favour of one of the parties regardless of the evidence; or that there was delay in issuing the reasons or extensive incorporation of material. The analysis is holistic and contextual. The question is whether the evidence presented by the party challenging the judgment convinces the reviewing court that a reasonable person would conclude that the judge did not perform her sworn duty to review and consider the evidence with an open mind: Teskey.
4. Copying in Reasons for Judgment
[30] The issue before us is not whether the practice of incorporating what others have written into judgments is a good thing. As we will see, judicial copying is a long-standing and accepted practice, yet one that, carried to excess, may raise problems. Rather, the issue is when, if ever, copying displaces the presumption of judicial integrity and impartiality.
[31] Approached from this perspective, a number of the criticisms advanced against copying fall by the wayside. One such criticism, made by the majority of the Court of Appeal in this case, is the judge’s failure to attribute the incorporated material to the original author. This criticism is connected to the idea that the reasons should be the “original” product of the judge’s mind, and that to the extent they are not, the judge should acknowledge her sources. Failure to attribute sources and lack of originality, without more, do not assist in answering the ultimate question — whether a reasonable person would conclude from the copying that the judge did not put her mind to the issues to be decided, resulting in an unfair trial. The fact that a judge attributes copied material to the author tells us nothing about whether she put her mind to the issues addressed in that copying. Nor is lack of originality alone a flaw in judgment writing; on the contrary, it is part and parcel of the judicial process. It may not be best practice for judges to bulk up their judgments with great swaths of borrowed material. But the fact remains that borrowed prose, attributed or otherwise, does not, without more, establish that the judge has failed to come to grips with the issues required to be decided.
[32] To set aside a judgment for failure to attribute sources or for lack of originality alone would be to misunderstand the nature of the judge’s task and the time-honoured traditions of judgment writing. The conventions surrounding many kinds of writing forbid plagiarism and copying without acknowledgement. Term papers, novels, essays, newspaper articles, biographical and historical tomes provide ready examples. In academic and journalistic writing, the writer is faced with the task of presenting original ideas for evaluation by an instructor or by peers, or of engaging in principled debate in the press. The task of judgment writing is much different. As Simon Stern puts it:
Judges are not selected, and are only rarely valued, because of their gift for original expression. Just as most lawyers would rather present their arguments as merely routine applications of settled doctrine, yielding the same legal results that other courts have delivered repeatedly, judges usually prefer to couch their innovations in familiar forms, borrowing well-worn phrases to help the new modifications go down smoothly. The bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law. . . . [T]he effort to demonstrate that similar cases are being treated alike often finds its rhetorical manifestation in a penchant for analyses that have a déja lu quality — usually because the words have been read before. This tendency, though visible throughout the legal system, is most pronounced at the trial level. [Emphasis in original; p. 1.]
(“Copyright Originality and Judicial Originality” (2013), 63 U.T.L.J. 1)
And again:
It is hardly news that legal writing is embedded in a network of precedent, formulas, and boilerplate, that it reflects a general preference for the tried and true over the novel, and that it routinely depends on practices — verbatim repetition of others’ words, adoption of others’ prose and arguments — that might trigger infringement claims in an intellectual property dispute. [p. 6]
[33] The scope for judicial creativity is narrow, but not non-existent. It finds expression in the ordering of the reasons and the disposition of the arguments and issues, and in the occasional eloquent statement of the facts or restatement of the law. Nevertheless, it remains the case that judicial opinions, especially trial judgments, differ from the kind of writings that traditionally attract copyright protection, with the concomitant demands of originality and attribution of sources. Judgments are “usually collaborative products that reflect a wide range of imitative writing practices, including quotation, paraphrase, and pastiche” (Stern, at p. 2). Judgments routinely incorporate phrases and paragraphs from a variety of sources, such as decided cases, legal treatises, pleadings, and arguments of the parties. Appellate judges may incorporate paragraphs borrowed from another judge on the case or from a helpful law clerk. Often the sources are acknowledged, but often they are not. Whether acknowledged or not, they are an accepted part of the judgment-writing process and do not, without more, render the proceeding unfair.
[34] In this spirit, and in the interests of expediting judicial business, courts actively encourage parties to submit written arguments and proposed orders. This process is accelerating. In the United States, and more and more in Canada, courts welcome electronic submissions. Such submissions help the judge get the decision right, facilitate the task of judgment writing and speed the judicial process. As Gregory M. Silverman frankly observes, the “benefits provided by electronic filing” include “reduced time for . . . retyping as portions of one document can be easily transferred to another using the cut-and-paste operation of word processing software” (“Rise of the Machines: Justice Information Systems and the Question of Public Access to Court Records over the Internet” (2004), 79 Wash. L. Rev. 175, at p. 196).
[35] 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. They are not the judge’s reasons, but those of the person whose prose the judge copied. Avoiding this impression is a good reason for discouraging extensive copying. But it is not the copying per se that renders the process of judgment writing unfair. A judge may copy extensively from the briefs in setting out the facts, the legal principles and the arguments, and still assess all the issues and arguments comprehensively and impartially. No one could reasonably contend that the process has failed in such a case.
[36] To sum up, extensive copying and failure to attribute outside sources are in most situations practices to be discouraged. But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity. This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision.
5. The Permissibility of Judicial Copying: A Look at the Cases
[37] Judges are busy. A heavy flow of work passes through the courts. The public interest demands that the disputes and legal issues brought before the courts be resolved in a timely and effective manner, all the while maintaining the integrity of the judicial process. In an ideal world, one might dream of judges recasting each proposition, principle and fact scenario before them in their own finely crafted prose. In reality, courts have recognized that copying is acceptable, and does not, without more, require the judge’s decision to be set aside. While the theoretical basis on which the result is explained varies, this is the position in England, various Commonwealth countries, the U.S. and in Canada.
[38] In England, the Court of Appeal has affirmed that copying does not invalidate a decision: English v. Emery Reimbold & Strick Ltd., [2002] EWCA Civ 605, [2002] 3 All E.R. 385. This view appears to be generally accepted. For example, in 2006, a British tribunal, applying Emery, explained that “there is nothing to prevent a Tribunal from adopting the arguments advanced on behalf of one of the parties if it accepts those arguments and has nothing to add to them”: Meadowstone (Derbyshire) Ltd. v. Kirk, 2006 WL 690588 (U.K. Employment Appeal Tribunal), at para. 21. Although the tribunal acknowledged that “[i]t is better practice for a Tribunal to spell out in its own words the reasons for any conclusion which it reaches”, if it chooses to repeat a party’s language, it cannot be said that this practice “fail[s] to meet . . . the minimum standards by which every judgment should be measured” (para. 21).
[39] Emery was applied by the Hong Kong Court of Appeal in a case where the trial judge incorporated extensive portions of counse