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 submissions.
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 system.
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 appropriate findings.