SUPREME
COURT OF CANADA
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 counsel’s submissions in the judgment, and the losing
party appealed on grounds of procedural fairness and adequacy: Shin v. Kung,
[2004] HKCA 205 (HKLII), at paras. 366-69 and 377. The court dismissed the
appeal, holding that a judge is entitled to accept or reject a party’s case in
its entirety. “A judge’s total adoption or rejection of counsel’s submissions per
se does not imply the lack of independent adjudication, nor does it
constitute a valid ground for upsetting the judgment on the basis of an unfair
trial”, the court stated (para. 367). Applying the test of “a fair-minded and
informed observer” (para. 377), it dismissed concerns about adequacy and bias.
[40]
In Australia, it has been held that “[a]doption
of one party’s submissions by a judge . . . is one method of providing adequate
reasons”, adding that “[i]t may not be the choice of every judge but it is
impossible to say that it necessarily . . . falls short of the judicial duty to
provide reasons”: James v. Surf Road Nominees Pty. Ltd., [2004]
NSWCA 475 (AustLII), at para. 168. In Fletcher Construction Australia Ltd.
v. Lines MacFarlane & Marshall Pty. Ltd. (No. 2), [2002] VSCA 189,
[2002] 6 V.R. 1, at para. 163, the Victorian Supreme Court of Appeal, reviewing
a trial judgment for adequacy, remarked that “[a] careful examination of the
reasons for judgment shows that the judge adopted [the plaintiff’s] closing
submissions almost in their entirety.” But it did not set the judgment aside
for copying alone.
[41]
The United States Supreme Court ruled almost 50
years ago that when a trial judge “adopt[s] verbatim” the findings of fact
submitted by counsel, “[t]hose findings, though not the product of the workings
of the . . . judge’s mind, are formally his; they are not to be rejected
out-of-hand, and they will stand if supported by evidence”: United States v.
El Paso Natural Gas Co., 376 U.S. 651 (1964), at p. 656. This rule appears
to have been consistently followed in the United States although not without occasional
adverse comment in extreme cases, as in United States v. Marine
Bancorporation, Inc., 418 U.S. 602 (1974), at p. 615, where
extensive copying without citations to transcripts hampered appellate review
and added to the appellate court’s burden. (See Stern, at p. 9, fn. 24.)
[42]
The Supreme Court of Canada has never ruled on
the matter. However, the two leading cases, Sorger v. Bank of Nova Scotia (1998),
39 O.R. (3d) 1 (C.A.), and R. v. Gaudet (1998), 40 O.R. (3d) 1 (C.A.),
support the view that copying does not in itself establish procedural
unfairness, and that the question is whether the copying shows that the trial
judge did not consider the evidence and issues and render an impartial,
independent decision.
[43]
In Gaudet, the trial decision was
upheld despite the fact that over 90 percent of its content was adopted from
the Crown’s submissions (Stern, at p. 35). The trial judge had expressly
stated that he had conducted an independent review, and the Ontario Court of
Appeal said that there was “no reason to conclude that the trial judge did not
do what he stated he had done — conduct an independent review of the evidence
and carefully consider both the defence and Crown submissions” (p. 16).
[44]
In Sorger, the Ontario Court of Appeal
approached the issue of extensive copying in reasons for judgment as a matter
of procedural fairness. It was faced with a 128-page trial judgment consisting
of nearly 125 pages transcribed from the parties’ submissions — 55 pages from
the plaintiffs’ submissions and 70 pages from the defendants’ submissions (Stern,
at p. 34). The trial judge devoted only two pages to findings of fact, all
copied verbatim from the defendants’ material without any analysis of the
evidence and no consideration of the jurisprudence. Evoking concerns about the
fairness of the trial, the Court of Appeal concluded that the trial judgment
offered “nothing to indicate that the trial judge attempted to grapple fairly
and impartially with the case presented by the plaintiffs or decide it
independently”. It concluded that “[a] reasonable and informed observer would
have a reasonable apprehension that the mind of the trial judge was closed to a
fair and impartial consideration of the appellants’ case” (pp. 8-9). The trial
judge’s decision was set aside and a new trial ordered, not on the ground that
the copying in itself vitiated the judgment, but on the ground that the
copying, viewed in terms of the judgment as a whole, would satisfy a reasonable
observer that the judge failed to grapple independently and impartially with
the issues before him.
[45]
Subsequent cases affirmed that copying alone is
not grounds for appellate intervention. The Ontario Court of Appeal upheld a
decision on an application for a search warrant where the judge’s entire
reasons consisted of a reference to one party’s arguments by paragraph number: Canada
(Attorney General) v. Ni-Met Resources Inc. (2005), 74 O.R. (3d) 641. The
losing party argued that the reasons were insufficient to fulfill their
functions because they simply adopted paragraphs from the other party’s
argument. The court rejected this submission.
[46]
In 2878852 Canada Inc. v. Jones Heward
Investment Counsel Inc., 2007 ONCA 14 (CanLII), the same court, in a
divided judgment and with some criticism, upheld reasons that incorporated the
parties’ submissions by identifying them solely by paragraph number, lending a
“writing by numbers” effect (Stern, at p. 24).
[47]
In R. v. Dastous (2004), 181 O.A.C. 398,
where the trial judgment consisted of five paragraphs in which the trial judge
stated he accepted all the Crown’s submissions, the Ontario Court of Appeal in
a short judgment set the decision aside in part because the trial judge had
given no reasons for his rejection of the accused’s evidence. In R. v.
Kendall (2005), 75 O.R. (3d) 565, leave to appeal refused, [2006] 1 S.C.R.
x, the same court rejected a trial judgment that consisted only of an
expression of agreement with and adoption of the defence submissions at trial,
again because it was impossible to know why the judge decided as he did.
[48]
The Federal Court of Appeal considered a
judgment that reproduced verbatim 100 paragraphs of a trial judgment complete
with original underlining, footnotes and references in Janssen-Ortho Inc. v.
Apotex Inc., 2009 FCA 212, 392 N.R. 71. After recommending that judges
should attribute sources, the court nevertheless concluded that the judgment
afforded “[no] basis to . . . conclude . . . that the Judge did not perform his
duty to examine the evidence as he was called upon to do” (para. 79).
[49]
In summary, courts in Canada and elsewhere have
held that copying in reasons for judgment is not, in itself, grounds for
setting the judge’s decision aside. However, if the incorporation of the
material of others would lead a reasonable person apprised of all the relevant
facts to conclude that the trial judge has not put his or her mind to the
issues and made an independent decision based on the evidence and the law, the
presumption of judicial integrity is rebutted and the decision may be set
aside.
[50]
This does not negate the fact that, 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 her own words
her conclusions on the facts and the law. The process of casting reasons for
judgment in the judge’s own words helps to ensure that the judge has
independently considered the issues and come to grips with them. As the cases
illustrate, the importance of this may vary with the nature of the case. In
some cases, the issues are so clear that adoption of one party’s submissions or
draft order may be uncontroversial. By contrast, in complex cases involving
disputed facts and legal principles, the best practice is to discuss the
issues, the evidence and the judge’s conclusions in the judge’s own words. The
point remains, however, that a judge’s failure to adhere to best practices does
not, without more, permit the judge’s decision to be overturned on appeal.
6. Application to This Appeal
[51]
The question is whether the extensive copying
from the plaintiffs’ submissions requires the trial judge’s decision to be set
aside. The starting point is the presumption of judicial integrity and
impartiality. To reframe the matter in the words of Teskey, the onus is
on the party challenging the decision to show that a reasonable person apprised
of all the circumstances would conclude that the judge did not put his mind to
the issues and decide them impartially and independently, as his duty
required. The bar is high, and cogent evidence is required to hurdle it. The
reviewing court should not approach copying from a sceptical perspective, but
from the perspective imposed by the presumption of judicial integrity and
impartiality. In deciding whether the presumption is rebutted the court should
consider the nature of the case, what was copied, the extent of the copying,
how it functions in the reasons as a whole, and any other relevant
circumstances.
[52]
In this case, the defendants rely on the extent
of the copying, the quality of the copying, the lack of attribution for the
copying, the nature of the case and the failure to fulfill the basic functions
of reasons for judgment.
(a) Extent
of the Copying
[53]
The copying, as already discussed, was
extensive. The judgment consisted of 368 paragraphs. Only 47 were
predominantly in the judge’s own words; the balance of 321 paragraphs was
copied (with editorial changes) from the plaintiffs’ submissions.
[54]
As discussed, extensive copying does not in
itself show that the reasons were not those of the judge. It may simply
reflect the judge’s decision that he was persuaded by the material he copied
and found it important. However, taken with other considerations, it may be a
factor tending to show that the judge did not engage with the issues and make
an impartial and independent decision on the evidence and the law, as his oath
required him to do.
[55]
In this case, the trial judge wrote some
original paragraphs and made findings contrary to the submissions of the
plaintiffs, the party from which he copied. Although most of what the trial
judge wrote in his own words concerned uncontroversial facts, the fact that he
did so makes it more difficult to infer that the judge failed to consider the
issues impartially and that the reasons do not reflect the thinking of the
trial judge.
(b) Quality
of the Copying
[56]
It is argued that errors in and omissions from
what the judge copied show that he did not put his mind to the issues and
decide the case impartially on the evidence and the law.
[57]
First, the defendants point to the fact that the
trial judge copied a portion of the plaintiffs’ submissions that contained an
error (the date of Dr. Yue’s consultation letter) that the judge had pointed
out in open court. This shows, it is argued, that he was simply cutting and
pasting in a mechanical fashion, and not putting his mind to the contents.
[58]
Had the error been one of substance, this would
be troubling. However, it is of a more technical nature. Making a mistake as
to the date of a letter does not offer convincing evidence that the trial judge
did not put his mind to the substance of what was copied.
[59]
Second, the defendants contend that the trial
judge’s incorporation of the plaintiffs’ arguments on causation without
discussing the defendants’ criticism of them shows that he did not perform an
independent causation analysis. They argue that the judge was simply cutting
and pasting, and not putting his mind to the content of the material.
[60]
As the cases show, adopting the arguments of one
of the parties without referring to the other party’s critique of them does
not, without more, rebut the presumption of judicial impartiality. Nor are
trial judges required to discuss every argument or alleged problem in arriving
at a particular conclusion. Here the reasons, although in borrowed language,
make it clear that the judge considered causation and made a decision on the
issue. Any error in that conclusion goes to the merits rather than the process.
[61]
Third, the defendants argue that the failure of
the judge to consider virtually any of the defendants’ submissions (except
those quoted in the plaintiffs’ submissions) shows that he did not come to
grips with the issues and the reasons do not reflect his own decision on them.
[62]
Again, this criticism is inconclusive. Indeed,
the fact that the judge accepted some of the defendants’ submissions negates
this inference. A comparison of the submissions of the plaintiffs and the
reasons for judgment shows that the portions of the plaintiffs’ submissions
that the judge copied were edited before being published in the reasons. This
suggests that the judge did not uncritically accept the material and put his
mind to its contents and whether they reflected his views.
[63]
I conclude that the quality of the copying would
not lead a reasonable person to conclude that the copied material did not
reflect the trial judge’s own thinking and views.
(c) Lack
of Attribution
[64]
It is argued that the fact that the trial judge
did not attribute the copied material to the plaintiffs supports the view that
the reasons do not reflect the reasoning of the trial judge and undermines
confidence that the portions copied reflect his own reasoning.
[65]
As the previous discussion establishes, judicial
writing is highly derivative and copying a party’s submissions without
attribution is a widely accepted practice. The 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.
[66]
Beyond this, it is difficult to understand how
attributed copying is more likely to reflect the judge’s thinking — or lack of
thinking — than unattributed copying. In both cases, the judge has adopted the
copied material as his own by putting it in his reasons.
(d) Nature
of the Case
[67]
The nature of the case is relevant in assessing
whether incorporation of the material of others rebuts the presumption of
judicial integrity and impartiality and justifies setting aside the judge’s
decision. Criminal cases, where the liberty of the accused is at stake, demand
the high level of scrutiny described in Teskey. At the other end of the
spectrum, straightforward motions in a civil case may require little more than
a yes or no from the judge.
[68]
The case before us is a civil case, but one of
considerable complexity. Moreover, the judge’s conclusions bore heavy
consequences for the parties — a great deal of money was at stake, and the
reputations of the doctors and Hospital staff were on the line.
[69]
However, it does not follow from the fact that a
case is complex and the judge’s findings are important that the judicial
incorporation of the material of others necessarily displaces the presumption
of integrity. As discussed above, it is good practice in such cases for the
judge to put the issues and his conclusions in his own words. But the question
is not whether best practices were followed, but whether the copying
constitutes cogent evidence that the judge failed to come to grips with the
issues and decide them impartially and independently, as his oath required. If
the answer to that question is yes, then the presumption of judicial integrity
and impartiality is rebutted. If the answer is no, the judge’s decision
stands.
[70]
In this case, we agree with Smith J.A.,
dissenting, that despite the judge’s extensive adoption of the plaintiffs’
argument, the evidence does not show that he failed to put his mind to the
critical issues and decide them independently and impartially. The reasons,
read as a whole, show that the trial judge considered the issues and the
arguments on both sides, and came to a conclusion on each of the main issues.
(e) Functions
Not Fulfilled
[71]
The Court of Appeal in this case correctly
recognized that the issue was whether the trial judge’s extensive incorporation
of the plaintiffs’ submissions rebutted the presumption of judicial integrity
and impartiality. However, the majority of the Court of Appeal and the parties
before this Court also discussed whether the reasons satisfied the basic
functional requirements of informing the parties and the public of the reasons
for the judge’s decision and providing a basis for appellate review.
[72]
As discussed above, this analysis is not
applicable when the complaint, as here, is that the judge’s wholesale
incorporation of the material of others in reasons for judgment shows that he
did not put his mind to the issues and decide them independently and
impartially.
(f) Summary
[73]
Despite extensive copying of the plaintiffs’ closing
arguments, the defendants’ arguments do not rebut the presumption of judicial
impartiality.
[74]
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, I cannot conclude that the trial
judge failed to consider the issues and make an independent decision on them.
On the contrary, 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.
[75]
It would have been better if the reasons had not
copied extensively from the plaintiffs’ submissions. However, to set aside the
decision of the trial judge requires more. To rebut the presumption of
judicial integrity, the defendants must establish that a reasonable person
apprised of all the circumstances would conclude that the trial judge failed to
consider and deal with the critical issues before him in an independent and
impartial fashion. The defendants have not done so.
[76]
The majority of the Court of Appeal acknowledged
the need to displace the presumption of judicial integrity and impartiality
before setting aside the judgment. It stated that “[t]he form of the reasons,
substantially a recitation of the [plaintiffs’] submissions, is in itself
‘cogent evidence’ displacing the presumption of judicial integrity, which
encompasses impartiality” (para. 127). In effect, the Court of Appeal held
that the extensive copying in itself rebutted the presumption. The
reasons of the trial judge, while imperfect, deal with all the salient aspects
of the case. The fact that large portions were copied from the plaintiffs’
submissions does not displace the presumption that the trial judge engaged with
the issues and decided them in accordance with the law. I conclude that the
judgment should not be set aside on the ground that the trial judge
incorporated large parts of the plaintiffs’ submissions in his reasons.
B. Does the Judgment Disclose
Errors of Law or Palpable and Overriding Errors of Fact?
[77]
Having concluded that the decision of the trial
judge should not be set aside because his reasons incorporated large portions
of the plaintiffs’ submissions, the question is whether the trial judge’s
conclusions on the liability of the various defendants disclose error and
should be set aside. It is common ground that to set aside the trial judge’s
conclusions, the party impugning the decision must demonstrate error of law or
palpable and overriding error on questions of fact.
[78]
The trial judge, to recap, found the Hospital,
Nurse Bellini and Drs. Yue, Edris and Steele liable in negligence. He
dismissed the claims against Nurse MacQueen and Nurse Verwoerd.
[79]
The majority of the Court of Appeal, having
concluded that the case must be returned for a new trial, did not deal with
these issues. However, Smith J.A. in dissent considered the trial judge’s
findings on liability. He was of the view that the claim against Dr. Yue
should be maintained on one of the grounds advanced, and that the claims
against Dr. Edris, Dr. Steele, Nurse Bellini and the Hospital should be
dismissed in their entirety. He suggested that he would have reduced damages,
but declined from considering this issue in view of the new trial ordered by
the majority.
[80]
The plaintiffs argue that Smith J.A. erred in
concluding that their claims against the defendants other than Dr. Yue should
be dismissed. The defendant nurse and the Hospital cross-appeal and ask this
Court to resolve the issues of liability and damages on the record before us,
rather than send them back for a new trial. The defendant doctors asked for a
new trial, but agreed during the oral hearing that it was open to this Court to
substitute its own findings in the course of ordinary appellate review.
1. Liability of Dr. Yue
[81]
The trial judge found Dr. Yue negligent for
recommending a vaginal birth after caesarean section, or VBAC procedure,
without verifying the orientation of the caesarean scar; for failing to obtain
Ms. Cojocaru’s informed consent to the VBAC procedure; and for failing to
obtain her informed consent to induction of the birth.
(a) Recommending
the VBAC Procedure
[82]
The trial judge found that Dr. Yue breached the
standard of care by failing to verify the orientation of the previous caesarean
scar before recommending VBAC as a delivery option (para. 154).
[83]
The issue is whether this conduct caused the
harm Eric Cojocaru suffered. The trial judge concluded that causation was
established because Ms. Cojocaru would not have attempted VBAC had Dr. Yue not
recommended it (para. 216).
[84]
Justice Smith held that the trial judge asked
the wrong question. The proper question was whether Dr. Yue’s failure to
investigate the orientation of the scar caused the injury and loss. Had Dr.
Yue investigated the scar, she would still have recommended VBAC. Hence, in
his view, no causal connection was established between the negligence alleged
and the injury.
[85]
I agree with Smith J.A. The trial judge
short-circuited the causation analysis when he found that “[t]he negligence
complained of is negligence in recommending VBAC as a delivery option. Had Dr.
Yue not done this, Ms. Cojocaru would have had a repeat caesarean section and
the injury would indeed have been avoided” (para. 216). Rather, the trial
judge should have asked himself what harm flowed from Dr. Yue’s alleged
negligent act: failing to verify the orientation of the scar.
[86]
VBAC is contra-indicated in patients who have a
classical or inverted T incision uterine scar from a previous caesarean
section. Dr. Yue formed the opinion that Ms. Cojocaru’s uterine scar was low
transverse, and that Ms. Cojocaru was thus a candidate for VBAC. Dr. Yue’s
only omission was her alleged failure to verify the orientation of the scar by
obtaining the report from the Romanian operation.
[87]
The purpose of obtaining the operative report
was to verify that the uterine scar was low transverse. Since Ms. Cojocaru’s
uterine scar was, in fact, low transverse, no harm flowed from Dr. Yue’s
omission.
(b) Liability for Failure to Obtain Informed Consent to the
VBAC Procedure
[88]
The trial judge found Dr. Yue negligent in
failing to obtain Ms. Cojocaru’s informed consent to the VBAC procedure. I
would not interfere with this conclusion.
[89]
The defendants argue that the trial judge made
errors in assessing Dr. Yue’s evidence. In my view, while the trial judge made
such errors, they could not have affected the result.
[90]
Dr. Yue had little memory of Ms. Cojocaru, and
instead testified as to her “invariable routine”. In finding that he could not
rely on Dr. Yue’s “invariable routine”, the trial judge stated that Dr. Yue
failed to chart any aspect of “her alleged conversation regarding the
risks that she says were explained to Ms. Cojocaru” (para. 98(d)). This was an
overstatement. Ms. Cojocaru’s chart indicates that modes of delivery were
discussed, and Dr. Yue’s consultation letter — written to the physician who
referred Ms. Cojocaru — noted that the chance of success of VBAC was 80
percent, and the risk of uterine rupture was 1 in 200. However, the trial
judge’s concern was not that the statistical risks were not discussed, but that
“there is no indication that the significance of that statistic was brought
home to Ms. Cojocaru” (para. 93). In fact, the trial judge concluded that even
if Dr. Yue did convey the risk of 1 in 200, this was insufficient to
obtain informed consent (para. 107). The trial judge’s misstatement with
respect to the charts does not undermine his finding that Ms. Cojocaru’s
consent was not sufficiently informed.
[91]
Similarly, the trial judge was entitled to
ignore the note “wants VBAC” written by Dr. Yue on Ms. Cojocaru’s chart.
Although the defendants argue that this note is evidence that Ms. Cojocaru
consented to the VBAC procedure, the note is ambiguous on the issue of whether
the risks were sufficiently conveyed to Ms. Cojocaru. The trial judge was not
required to minutely dissect every piece of evidence in his reasons.
[92]
The trial judge also erred in his assessment of
the consultation letter. As noted by the trial judge during oral argument, it
was dictated the same day as Ms. Cojocaru’s appointment, not two days later.
Furthermore, the trial judge erred by expecting that a letter to Ms. Cojocaru’s
physician should detail Ms. Cojocaru’s language difficulties or explain the
significance of statistical risks (see C.A. reasons, at paras. 65-67).
However, the trial judge did not rely on this letter for an adverse finding of
credibility; rather, he found that Dr. Yue’s “invariable routine” was not
corroborated by this letter. The trial judge simply preferred the evidence of
Ms. Cojocaru over that of Dr. Yue. His misapprehension of the letter is
insufficient to overturn this finding.
[93]
The evidence supports the trial judge’s
conclusion that Dr. Yue failed to adequately inform Ms. Cojocaru of the risks
of VBAC.
[94]
The evidence shows that Dr. Yue based her
assessment of the risk of VBAC on an incorrect assumption about the reason for
the Romanian caesarean section. Accordingly, she could not have fully informed
her patient of the risks of VBAC.
[95]
Dr. Yue concluded that Ms. Cojocaru’s previous
caesarean had been elective. On this basis, Dr. Yue advised Ms. Cojocaru that
VBAC would have an 80 percent chance of success (trial reasons, at para. 103).
This was in error. As found by the trial judge and supported by both the
operative report and the Romanian obstetrician, Dr. Clepce, the Romanian
caesarean section was undertaken for failure to progress (paras. 104-5). As
Dr. Yue admitted, after a caesarean section for failure to progress, the
likelihood of a successful VBAC is “significantly less than 80%” (accepted by
the trial judge, at para. 106). Thus, Dr. Yue could not have properly advised
her patient of the risks associated with VBAC.
[96]
For these reasons, I conclude that the trial
judge’s finding of liability against Dr. Yue for failing to obtain Ms.
Cojocaru’s informed consent to VBAC should be affirmed.
(c) Liability for Informed Consent to
Induction
[97]
The trial judge found Dr. Yue liable for failure
to obtain Ms. Cojocaru’s informed consent to induction of the birth. Justice
Smith would have upheld this finding.
[98]
I cannot agree. The trial judge failed to
conduct a separate causation analysis for the failure to obtain informed
consent to induction, as distinct from the failure to obtain informed
consent to VBAC. In my view, there is no evidence to support a causal
relationship between the induction and the harm suffered.
[99]
There was no evidence to suggest that the
alternative to induction — and, thus, the course of action that would have been
followed had induction been refused — was a scheduled caesarean section. The
most that can be said is that if Ms. Cojocaru had refused induction, her labour
would not have been induced. The question is what harm flowed from the
induction with prostaglandin gel.
[100]
The trial judge neither explicitly not
implicitly found that the prostaglandin gel over-stimulated the uterus and
caused the uterine rupture. Although there is evidence to support his finding
that induction increases the risk of uterine rupture, it does not go so far as
to show a causal relationship between the induction and the rupture in this
case.
[101]
I would not sustain the finding of liability
against Dr. Yue on this basis.
2. Liability of Dr. Edris
[102]
The trial judge held that Dr. Edris’s conduct
failed to meet the requisite standard of care because he induced labour without
ascertaining the orientation of Ms. Cojocaru’s uterine scar (para. 172).
[103]
Justice Smith held that this finding was in
error because there was no causal connection between the alleged negligence —
failure to ascertain the position of the scar — and the injury. I agree.
[104]
Ms. Cojocaru had a low transverse scar, and was
thus not contra-indicated for either induction or VBAC. The trial judge’s
findings that Dr. Edris was uncertain of the scar’s orientation and that he did
not discuss this uncertainty with the on-call obstetrician, Dr. Steele, are of
no moment. If Dr. Edris had ascertained the orientation of the scar, he would
nevertheless have proceeded with the induction. Moreover, there is no evidence
that the induction caused the uterine rupture.
3.
Liability of Dr. Steele
[105]
Dr. Steele was the on-call obstetrician. When
Nurse Bellini spoke with him at 18:05 to report on Ms. Cojocaru’s condition, he
was in his car and on his way to another hospital. He did not return to the
B.C. Women’s Hospital until after the delivery.
[106]
The trial judge found Dr. Steele negligent on
two counts: first, for failing to assess Ms. Cojocaru earlier in the day (he
criticized Dr. Steele for not having attended at any point between 10:00 and
the emergency); and second, for failing to attend on her immediately when he
spoke to Nurse Bellini. Instead, the trial judge said, “he left the hospital”
(para. 173).
[107]
Justice Smith held that these conclusions were
based on a misapprehension of the evidence and absolved Dr. Steele of
liability. In his view, the evidence failed to establish a causal link between
Dr. Steele’s actions and the injury. I agree.
[108]
First, there was no evidence to support the view
that Dr. Steele’s failure to assess Ms. Cojocaru earlier in the day was a
departure from the prevailing professional practice. There were no signs of
uterine rupture until after 17:45. All the evidence supports the view that as
the on-call obstetrician, Dr. Steele was entitled to rely on the obstetrical
residents, Dr. Edris and Dr. Green, and the nursing staff to care for Ms.
Cojocaru. He expected to be called when needed.
[109]
Second, as for his failure to attend on Ms.
Cojocaru when he spoke with Nurse Bellini at 18:05, it is clear on the evidence
that even if Dr. Steele had been present at that time — or at 18:00 when the
trial judge found that the nurses first should have called a doctor — it would
have made no difference. As discussed below, the Hospital’s only staffed
operating room was occupied at that time — a fact which the trial judge failed
to mention.
4. Liability of Nurse Bellini and the Hospital
[110]
The trial judge found Nurse Bellini (and
therefore the Hospital which employed her) liable in negligence for not
observing and responding to the signs of uterine rupture earlier. He found
that Nurse Bellini should have called Dr. Green, the obstetrical resident
present at the Hospital, by 18:00 hours, and that had she done so, the injury
would have been avoided.
[111]
Justice Smith held that the evidence showed that
even if Nurse Bellini had called Dr. Green at 18:00, the loss would not have
been prevented, because the caesarean section could not have been performed in
time to avoid the injury Eric suffered, due to lack of a staffed operating
room. I agree.
[112]
Eric was extruded from the ruptured uterus and
deprived of oxygen and nutrients at 18:18 (trial reasons, at para. 206). The
trial judge found (and, indeed, it was undisputed) that the baby needed to be
delivered within 10-15 minutes of oxygen deprivation to avoid permanent brain
damage (that is, by 18:28-18:33) (para. 220).
[113]
The critical question is this: If Nurse Bellini
had called Dr. Green at 18:00 as the trial judge found she should have, could
Eric have been born before 18:28 to 18:33, when permanent brain damage
occurred? The answer to this question, on the evidence before us, is no. The
only operating room with an anaesthetist was not available until shortly before
18:30. Ms. Cojocaru’s operation commenced at the earliest possible time,
18:30, when the anaesthetist entered her operating room, and Eric was duly
delivered at 18:41. Even if Nurse Bellini had sounded the alarm and called Dr.
Green at 18:00 instead of having Nurse Verwoerd call him at 18:15, and if the
caesarean section had been ordered within 10 minutes of that call, as appears
likely, the result would have been the same because the operation could not
have commenced before it did.
[114]
The trial judge appears to have reasoned that
because it took 26 minutes from the time of Nurse Verwoerd’s call at 18:15 for
Eric to be born, Eric would have been born by 18:26, before permanent brain
damage, had Nurse Bellini made the call at 18:00 hours. However, this
overlooked the fact that no operating room staffed with an anaesthetist was
available until 18:30. On the evidence, it would not have been possible to get
another anaesthetist in time to prevent the injury.
[115]
I conclude that even if Nurse Bellini had
observed and reacted to the signs of uterine rupture by 18:00, as the trial
judge said she should have done, and even if Dr. Steele had attended personally
when he was paged, Eric could not have been delivered in time to avoid
permanent brain damage.
5. Conclusion
[116]
The trial judge’s finding of liability against
Dr. Yue for failing to obtain Ms. Cojocaru’s informed consent to VBAC should be
affirmed. However, I agree with Smith J.A. that the trial judge’s findings of
liability against Nurse Bellini, the Hospital, and Drs. Steele and Edris must
be set aside.
6. Damages
[117]
The trial judge assessed damages against the
defendants he found liable in the sum of $4,045,000, as follows (para. 367):
Non-Pecuniary Damages (Eric) $ 321,000
Non-Pecuniary Damages (Ms. Cojocaru) $ 40,000
Income Loss/Loss of Earning Capacity $ 850,000
Loss of Interdependent Relationship $ 25,000
Future Care Costs $ 2,665,000
“In Trust” Claim $
144,000
TOTAL $ 4,045,000
[118]
Justice Smith indicated that he would have reduced
the damages against Dr. Yue (the only defendant found liable) but declined to
go into the matter in light of the new trial ordered by the majority.
[119]
The defendants challenge the trial judge’s
conclusions on the quantum of damages.
[120]
In my view, the trial judge’s findings on
damages were supported by the evidence and disclose no palpable and overriding
error that would justify appellate intervention. The defendants essentially
ask this Court to re-weigh the evidence, something we cannot do.
[121]
It is true that the trial judge overstated the
matter when he referred to “clear and uncontradicted evidence” of “direct
damage to Eric’s cerebral hemispheres” (para. 239). In fact, the evidence was
contested; indeed, it seems arguable that the weight of the evidence was that
there was no damage to the cerebral hemispheres. However, there was some
evidence, particularly in the reports of Dr. Kaushansky and Dr. Hahn, on which
the trial judge was entitled to find that Eric suffered damage to his cerebral
hemispheres. Accordingly, I cannot conclude that the trial judge committed
reversible error in his assessment of the nature of Eric’s injury.
[122]
I am also of the view that the trial judge was
entitled to give little weight to the defendant physicians’ cost of care
expert, Ms. Mageau. The trial judge found that she relied on a number of
incorrect assumptions in her report. In arguing that the assumptions were well
founded, the defendant physicians are asking this Court to re-weigh the
evidence. Ms. Mageau based her assumptions on the findings of other experts,
many of which were contradicted, and many of which the trial judge rejected.
Accordingly, the trial judge was entitled to find that the assumptions
underlying Ms. Mageau’s report were incorrect.
V. Disposition
[123]
I would allow the appeal. I would also allow the
cross-appeal and reverse the order of the trial judge in part. The plaintiffs
are entitled to damages against Dr. Yue in the amount assessed by the trial
judge and to costs in the courts below and on the appeal here, payable by Dr.
Yue. The actions against Nurse Bellini, the Hospital and Drs. Steele and Edris
are dismissed. The defendants, Nurse Bellini and the Hospital are entitled to their
costs on the cross-appeal alone, payable by the plaintiffs. As Drs. Edris and
Steele did not cross-appeal, they are not entitled to costs.
Appeal
and cross‑appeal allowed with costs.
Solicitors
for the appellants/respondents on cross‑appeal: Pacific Medical Law,
Vancouver; Whitelaw Twining Law Corp., Vancouver; Supreme Advocacy, Ottawa.
Solicitors
for the respondents/appellants on cross‑appeal the British Columbia Women’s
Hospital and Health Centre and F. Bellini: Guild Yule, Vancouver.
Solicitors
for the respondents Dale R. Steele, Jenise Yue and Fawaz Edris: Harper
Grey, Vancouver.
Solicitor
for the intervener the Attorney General of Ontario: Attorney General of
Ontario, Toronto.
Solicitors
for the intervener the Trial Lawyers Association of British Columbia: Farris,
Vaughan, Wills & Murphy, Vancouver.
Solicitors for the
intervener the Canadian Bar Association: Osler, Hoskin & Harcourt,
Toronto.