Cases commented on: University of Alberta v Chang, 2012 ABCA 324 (CanLII) and Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital and Health Center (Supreme Court of Canada Case number 34304)
The Alberta Court of Appeal decision in University of Alberta v Chang – from which the quote in the title of this post was taken (para 18) – was released November 13. The judgments appealed from consisted of cut-and-pasted excerpts taken verbatim from the written arguments of counsel for both parties and raised (in)sufficiency of reasons issues. The Court of Appeal decided the matters would have to be re-argued and re-heard in order to receive “a proper adjudication.” Coincidently, the Supreme Court of Canada heard an appeal from a different copy-and-paste judgment on November 13, although it reserved its judgment and it will probably be months before a decision in Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital and Health Center is handed down. Although both are copy-and-paste judgments, Cojocaru is quite different from Chang on its facts. The trial decision in Cojocaru was almost totally copied-and-pasted, but exclusively from the plaintiff’s written arguments. The Cojocaru case therefore raised issues of bias not raised by Chang. It will be interesting to see whether the approach adopted by the Supreme Court to decide Cojocaru will define the law for all copy-and-paste judgments. It could if the court decided the source of a judge’s reasons is irrelevant to determining their sufficiency.
In this post, after outlining the Court of Appeal’s decision in Chang, I briefly set out the facts of the Cojocaru case and the hearing before the Supreme Court. I then comment on four aspects of the Chang decision, drawing on the arguments made in the Cojocaru hearing: (1) the test for sufficiency of reasons; (2) the role of copy-and-paste judgments in the sufficiency of reasons context and the presumption of judicial integrity; (3) what happens if reasons are insufficient; and (4) the cost to the parties of sufficiency of reasons cases. The second point will be my focus. Finally I will conclude with some thoughts about the role that judicial institutions do and could play on the cut-and-paste issues.
THE CHANG CASE
The dispute in the Chang case involved the governors of the University of Alberta and Dr. Lung-Ji Chang, a former biotech researcher. The University and an affiliated biotech company sued in 2002 and 2003, after Chang attempted to end an agreement to develop new technology with the affiliate and entered into an arrangement with a competing biotech company. In September 2011, Justice Donald Lee granted Chang’s chambers applications to have the two actions against him dismissed due to delays in their prosecution. The appeals were from Justice Lee’s two chambers decisions — University of Alberta v Chang, 2011 ABQB 595 (CanLII), and University of Alberta v Chang, 2011 ABQB 596 (CanLII) — and both were dealt with in the same Court of Appeal decision by Justices Jack Watson, Frans Slatter and Patricia Rowbotham.
The University appealed on the ground that the chambers judge failed to engage in any meaningful analysis of the issues, and failed to provide reasons that disclosed his reasoning. His decision at 2011 ABQB 595 incorporated 64 paragraphs from counsel’s briefs in a 67 paragraph judgment. The decision at 2011 ABQB 596 incorporated 79 paragraphs from counsels’ briefs in a 78 paragraph judgment. The Court of Appeal found that:
Every one of the paragraphs in the reasons was extracted, essentially verbatim, from the chambers briefs. There is no independent authorship. Even spelling mistakes in the briefs are faithfully carried forward. (para 17)
The Court of Appeal enumerated the problems that may result when a judge at first instance merely copies the written arguments filed by counsel, rather than composing original reasons (paras 21-22):
- Because they are prepared in an adversarial context, the parties’ written arguments tend to be “one-sided”, placing each party’s position in the best possible light and downplaying or ignoring the arguments, authorities, and evidence in support of the opposite side. Consequently, cutting and pasting from those written arguments can result in a failure to select from the evidence and legal authorities or to assimilate the competing positions in a transparent and defensible manner.
- Reasons that are merely copied may not disclose the line of analysis the judge used, or even suggest a lack of analysis.
- Merely copying briefs may obscure or eliminate the discipline imposed by articulating the line of analysis.
In addition to these problems (and ones arising from cutting-and-pasting only one side’s written argument, which I have omitted as irrelevant to Chang), the Court of Appeal also noted a more systemic problem (para 22(h)):
The practice of merely adopting the written briefs as reasons leads to the temptation of requiring written briefs from counsel on every issue, no matter how important or straightforward. The preparation of written briefs is very expensive, and the courts should not unnecessarily impose this burden on litigants. Trial judges are expected to decide many issues simply based on the oral arguments of counsel.
In the Chang case, the problem was that the compilation of passages from the written arguments of the parties did not disclose how the chambers judge arrived at his decision. There was no meaningful discussion of the conflicting evidence or the competing arguments on whether there was inordinate delay and whether there had been any prejudice.
The leading cases on the judicial duty to give reasons and the question of the sufficiency of reasons are R v Sheppard, 2002 SCC 26 (CanLII), 2002 SCC 26 and R v R.E.M., 2008 SCC 51 (CanLII), 2008 SCC 51 (and one might add F.H. v McDougall, 2008 SCC 53,  3 SCR. 41 for its application of Sheppard and R.E.M. to the civil context). The test for sufficiency is a functional context-specific test. As the Court of Appeal noted (para 23) the functional test for the sufficiency of reasons is from Sheppard — the decision must be reasonably intelligible to the parties, and provide the basis for meaningful appellate review — and its context-specific nature is emphasized in R.E.M.
However, deciding reasons for judgment do not meet the functional context-specific test for sufficiency is not the end of the matter, as the Court of Appeal noted (para 24). There are at least three different consequences that might flow from insufficient reasons:
- Sometimes the reasons are so deficient that a new hearing is required.
- Sometimes meaningful appellate review is possible, notwithstanding the deficiencies in the reasons, because the appellate court can determine the basis upon which the decision was made. In that review, the question is whether there is a palpable and overriding error in the reasons for judgment.
- Sometimes the appellate court is able to dispose of the controversy, notwithstanding the insufficiency of reasons for judgment, because the record is clear enough to allow a decision.
The Court of Appeal in Chang adopted the first option and ordered a re-hearing of Chang’s applications.
THE COJOCARU CASE
At trial, in Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital, 2009 BCSC 494, Justice Joel Groves originally awarded Eric Victor Cojocaru and his mother, Monica Cojocaru, $4 million in damages in an action against the hospital and a number of its doctors and nurses. The infant Cojocaru suffered permanent brain damage in 2001 when his mother’s uterus ruptured as he was born, depriving him of oxygen for 23 minutes. In a 368 paragraph judgment, the trial judge copied 321 paragraphs almost word-for-word from the plaintiff’s written submissions, wrote 40 paragraphs in his own words, and used some of his own words with passages from the plaintiff’s written submissions in 7 paragraphs.
The medical parties found liable — the hospital, a nurse and three doctors — appealed on two grounds: (1) that the trial judge’s unattributed adoption of the respondents’ written argument as reasons for judgment, by itself, amounted to an error of law that necessitated a new trial, and, in the alternative, (2) the trial judge made palpable and overriding errors of fact. The majority of the Court of Appeal, in Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital and Health Center, 2011 BCCA 192, allowed the appeals on the first ground and ordered a new trial. The dissent by Justice Smith reviewed the trial decision on its merits (i.e., he decided on the second ground of appeal) and would have allowed the appeals against all but one doctor.
The Canadian Bar Association, Attorney General of Ontario and the Trial Lawyers Association of British Columbia all intervened, filing factums and presenting oral arguments. The factums of the parties and a webcast of the hearing are available from the Supreme Court’s web site here.
(1) The test for sufficiency of reasons
Historically there was no duty on judges to disclose their reasons for a decision or to identify what evidence they believed or disbelieved: R.E.M. at para 8. Things have changed recently, but there is still “no absolute rule that adjudicators must in all circumstances give reasons [although in] some adjudicative contexts . . . reasons are desirable, and in a few [e.g., criminal trials], mandatory”: R.E.M. at para 10.
When there is a duty to give reasons, the issue of the sufficiency of the reasons given may arise. As previously mentioned, the Supreme Court in Sheppard, R.E.M. and subsequent cases developed a functional context-specific approach to the adequacy of reasons:
The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision” (R.E.M. at para 17, emphasis in original).
In the most often quoted passage from R.E.M at para 37, Justice Charron wrote for the majority:
The sufficiency of reasons is judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial. The question is whether, viewing the reasons in their entire context, the foundations for the trial judge’s conclusions – the “why” for the verdict – are discernable. If so, the functions of reasons for judgment are met. The parties know the basis for the decision. The public knows what has been decided and why. And the appellate court can judge whether the trial judge took a wrong turn and erred. The authorities are constant on this point.
This functional context-specific test is the test the Court of Appeal acknowledged in Chang. However, the Court appeared concerned about how Justice Lee reached his decision, concluding (para 31) “[t]he compilation of passages from the chambers briefs does not disclose how the chambers judge arrived at his decision” (emphasis added), and that, although there had been competing evidence on whether there was inordinate delay and prejudice, there was “no sufficient indication from the chambers judge how he resolved these disputes” (emphasis added). The choice of wording seems unfortunate because the Supreme Court was adamant that “[t]he object is not to show how the judge arrived at his or her conclusion (R.E.M. at para 17). The Court of Appeal was required to look for “whether, viewing the reasons in their entire context, the foundations for the trial judge’s conclusions – the ‘why’ for the verdict – are discernible” (R.E.M. at para 37). On the surface it seems that the Court of Appeal was demanding more of the chambers judge’s reasons than he was required to give. Nevertheless, the “how” and the “why” are easily conflated when nothing is offered in the way of reasons for reaching conclusions. In this case, the Court of Appeal had found (para 24) “there is no discussion or assimilation of the appellants’ arguments” in the one decisions (para 30) and “generally there is no meaningful discussion of the conflicting evidence on these points [and there] is no analysis of the competing arguments or evidence” in the other decision.
(2) The role of copy-and-paste judgments in the sufficiency of reasons context
What role did Justice Lee’s copying-and-pasting play in the decision about the sufficiency of his reasons? The Court of Appeal found (para 25) that the content and organization of Justice Lee’s reasons obscured his reasoning process. It was the copying-and-pasting that made the decisions disorganized (paras 25 and 27). It was the copying-and-pasting that made it appear as though passages might be the judge’s findings of fact or conclusions, even though they were merely recitations from the written arguments. It is possible to imagine that a chamber judge might write his own summaries of the facts and his own generic discussion of the relevant law, and then reach a conclusion without offering any analysis of why he did so. However, it seems clear that copying-and-pasting from counsels’ written arguments facilitates minimal effort in applying law to facts. A lack of effort was especially noticeable in Chang because the judge’s “reasons” were couched in terms of counsel’s “it is submitted that”, which is “inappropriate for any judicial analysis” (para 27). Still, the sufficiency of reasons was the primary issue in Chang, with the copying-and-pasting playing a subordinate role.
In the Cojocaru appeal, on the other hand, the sufficiency of reasons test played little role and it was all about the copying-and-pasting. The test for sufficiency of reasons was mentioned, of course, but most of the arguments on the first ground of appeal were about the presumption of judicial integrity and independence and whether the one-sided nature of the copying-and-pasting in that case was, of itself, cogent evidence displacing that presumption. As the majority in the BCCA noted (para 109), Cojocaru was not an ordinary case of “insufficient reasons” of the type dealt with by the Supreme Court in Sheppard and R.E.M.: “On their face, the reasons for judgment of the trial judge, if accepted as such, are amenable to appellate review and thus satisfy what has emerged as the functional test for sufficiency of reasons.” But could reasons copied verbatim and without attribution from counsel’s written argument be accepted as the trial judge’s reasons?
In the judicial context, there are only two Supreme Court of Canada decisions making use of the presumption of judicial integrity on a sufficiency of reasons issue: R v S (RD), 1997 CanLII 324 (SCC),  3 SCR 484, and R v Teskey,  2 SCR 267, 2007 SCC 25 (CanLII). In these cases, the question “is 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”: R v S. (R.D.) at para 113.
In the Teskey case, a trial judge had delivered extensive written reasons 11 months after rendering guilty verdicts. It was agreed that his oral reasons given at the time the verdicts were handed down were insufficient. The only issue was whether the Court of Appeal should have considered the written reasons of the trial judge in deciding the appeal from conviction. Reliance was placed on the presumption of integrity and impartiality, rebuttable only by cogent evidence. The Supreme Court divided 6:3 on whether there was cogent evidence in the case before them. As the majority explained (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.” In the key passage from Teskey (para 21), Charron J. stated:
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 therefore on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons [do not reflect] an articulation of the reasoning that led to [the decision].
In Cojocaru therefore, the issue was not copying-and-pasting per se. Nor was it about a lack of analysis. The issue arose from the fact almost all of the reasons were borrowed from only plaintiff’s counsel’s written argument without attribution, i.e., the issue was one of bias. That issue, and the law applicable to it, seem far from the issue and law in Chang.
However, if the Supreme Court were to adopt the position argued by David Lepofsky on behalf of the Attorney General of Ontario (at minute 145.20 in the webcast), the issue in Chang and Cojocaru and the applicable law would be the same. Mr. Lepofsky argued vigorously that appeal courts should never review the source of a judge’s reasons, only their content. If the content of reasons for judgment revealed a failure to deal with an issue or a complete lack of reasons for a conclusion, there would be a reversible error no matter where the prose came from, whether the judge, a written argument of counsel, or a law clerk’s memo. Justice Rothstein pressed Mr. Lepofsky (at minute 149.40 in the webcast), asking if he was arguing that the Court’s precedents which were uncomfortable with the source of a judge’s reasons were wrong. And Mr. Lepofsky said they were, or, to use his words, those precedents were “thinly reasoned, unprincipled and wrong.” According to Mr. Lepofsky, the only principled approaches were bright-line approaches that either said the source of reasons was always irrelevant or said that judges could never copy-and-paste from counsel’s arguments. The latter approach “catapults formalism over substance,” and ignores the fact that copying-and-pasting is something a lot of judges do. The former rule was therefore preferable.
The other intervenors did not share the Attorney General of Ontario’s “unbridled” or “absolute” approach. The Trial Lawyers Association of British Columbia agreed that, in crafting reasons for judgment, reliance on one side’s argument, especially when unattributed and extensive, is concerning, but argued it ought not on its own be treated as an error of law so as to subject the parties and courts to a new trial. To require a new trial, cogent evidence of a lack of judicial integrity was required. The Canadian Bar Association also argued in favour of the status quo, stating that whether a trial judge’s adoption of a party’s submissions verbatim in their reasons justifies setting that decision aside and ordering a new trial depends on the circumstances of the particular case (see CBA E-News, July 2012, Focus on Advocacy).
The CBA correctly characterized the Teskey issue – whether a judge grappled independently and impartially with the case – as prior to a Sheppard analysis of the sufficiency of those reasons. That is why there are two streams of cases: the Sheppard and R.E.M. line and the R v S (RD) and Teskey line. One has to decide first whether the copy-and-pasted reasons of counsel or the judicial reasons crafted 11 months after the verdicts are indeed the reasons to be examined for sufficiency. In other words, will the reasons for decision of the judge at first instance be accepted as the reasons for the decision of the judge at first instance? Only after that issue is decided can the sufficiency of the judge’s reasons be examined.
In summary, if the Supreme Court adopts the approach advocated by the Attorney General of Ontario, then Chang and Cojocaru will be governed by the same law — the Sheppard and R.E.M. line of cases — because whether or not a judge’s reasons are copied-and-pasted will be irrelevant. The issue will be the substantive adequacy of the reasons. However, if the Court continues the R v S (RD) and Teskey line of cases, they will have to face an issue not raised in Chang: Does extensively copying-and-pasting reasons for judgment exclusively and verbatim from one party’s written argument, by itself, present cogent evidence to rebut the presumption of judicial integrity? If it does, then those reasons for judgment will be insufficient because they will not be accepted as the reasons for judgment. The issue would then be the source or form of the reasons.
(3) What happens if reasons are insufficient?
As I mentioned earlier, there are at least three different consequences that might flow from insufficient reasons:
- Sometimes the reasons are so deficient that a new hearing is required.
- Sometimes meaningful appellate review is possible, and, in that review, the question is whether there is a palpable and overriding error in the reasons for judgment.
- Sometimes the appellate court is able to dispose of the dispute itself because the record is clear enough to allow a decision.
The first option is extremely problematic for the parties. The Supreme Court has said that “[s]erious remedies such as a new trial require serious justification”: Sheppard at para 22. Certainly the Alberta Court of Appeal expressed regret (para 33) that the parties in Chang would be subjected to the expense and delay of re-arguing the matter. And the majority in the BC Court of Appeal in Cojocaru did acknowledge (para 128) that it would be difficult for the parties to remount what had been a 30-day trial.
The costs that are borne by the parties make the second option — appellate review for whether there is a palpable and overriding error in the reasons for judgment — much more palatable. This was the route adopted by Justice Smith in dissent in the BC Court of Appeal in Cojocaru. Justice Smith concluded (para 31) that “in adopting the respondents’ written submissions he overlooked and misapprehended important evidence, made errors in his legal analysis, and failed entirely to deal with a cogent defence argument.” He would have allowed the appeals of the hospital, the nurse and two of the three doctors, dismissing the action against them. As for the remaining doctor, he would have allowed her appeal only to the extent of reducing the damages against her, but, because he was in dissent and a new trial was ordered, he did not set out his reasons concerning the award.
Many of the questions directed at counsel by the Supreme Court in the oral hearing of Cojocaru were questions about whether there were palpable and overriding errors in the trial judge’s reasons for judgment, the alternate ground of appeal. Three of the Supreme Court judges — Justices Abella, Rothstein and Moldaver — asked questions about the possibility of adopting Justice Smith’s approach.
The usual problem with the second option, however, is that without a clear explanation of the judge’s analysis, it is difficult to tell if the reasons for decision disclose palpable and overriding errors (Chang at para 24).
The third option was a real possibility in Chang. The chambers applications were conducted from a paper record, without any viva voce testimony. The Court of Appeal even acknowledged (para 32) that it was tempting to use the record to make the necessary findings of fact to resolve the dispute. They refused to do so, however, because such a response to insufficient reasons “distorts the institutional role of the trial court and the court of appeal [because it] is not possible to afford any deference to the findings of the chambers judge here, because it is impossible to tell what those findings were.” In other words, the Court of Appeal would have had to act as a judge of first instance.
The Court of Appeal’s refusal to adopt the third option, relying on the difference between the institutional roles of trial and appellate courts, seems harsh in a context where innocent parties have to bear the costs of a trial judge’s failure adequately express his reasons for reaching his conclusions. It might be the case that the Court of Appeal was particularly exasperated by Justice Lee’s habit of cutting-and-pasting counsel’s written arguments and wanted to send a strong rebuke. The Court of Appeal noted (para 17) that “[t]he chambers judge followed his practice of cutting and pasting paragraphs from the briefs filed by the parties, having those paragraphs retyped, and then signing them as ‘Reasons for Judgment’” (emphasis added). See also Fuller Western Rubber Linings Ltd. v Spence Corrosion Services Ltd., 2012 ABCA 137, an appeal from two interlocutory orders of Justice Lee in which a bench that also included Justice Frans Slatter noted (para 5) “the reasons of the chambers judge consist largely of unattributed reproductions of the written arguments of counsel.” And it is probably true that the particular parties involved in the Chang case could afford the monetary cost of both the appeal and re-hearing more than could most parties and so this was not the worst case on which to take a stand. Nevertheless, the cost to the parties, who are analogous to innocent bystanders caught up in a situation not of their making, must be considered.
(4) The cost to the parties of copy-and-paste judgments
Judicial copying-and-pasting is merely a pragmatic response to a heavy workload in the opinion of many counsel and judges. In the BC Court of Appeal in Cojocaru, for example, the dissenting Justice Smith noted (para 22) that “[t]rial judges are busy, and there can be cases . . . where a party’s submissions so accurately reflect the trial judge’s reasoning that nothing would be gained by postponing other pressing work in order to rewrite the reasoning and conclusions in the judge’s own words.” All counsel in Cojocaru appeared to accept copying-and-pasting was just part of the realities of modern judicial practice, a practice with lots of pressure and lots of cases. Counsel for the plaintiffs submitted (Appellant’s Factum, para 2) that judges now commonly require counsel to provide their submissions in an electronic format and presumably do so in order to allow for convenient review, cutting and pasting.
Another pragmatic point that should be taken into account is that some judges do not write any judgments. They conduct themselves as though their decisions are only of importance to the parties before them and thus an oral decision heard by those parties is good enough. They ignore the precedential and interpretive system of which they are a part. Forbidding copying-and-pasting of counsel’s written arguments would not encourage these judges to write.
However, the preparation of reasons for judgment by parties shifts the cost and burden of setting out the facts, issues, law, application of the law to the facts, and conclusions from the judge and Canadian citizens paying for a public legal system to individual clients and their lawyers. Clients are now paying for lawyers to provide written reasons that can be copied-and-pasted. At a time when the Chief Justice of the Supreme Court is speaking out frequently about how the middle class cannot hope to pay legal fees, shifting these costs adds to the inaccessibility of justice (see, e.g., “Access to justice becoming a privilege of the rich, judge warns” (10 February 2011); “There is no justice without access to justice: Chief Justice Beverley McLachlin” (11 November 2011); “Canadian courts not accessible enough, says chief justice” (12 August 2012)).
The importance of well-written decisions with substance that allow readers to follow the court’s reasoning and how a judge proceeded from point A to point B and eventually reached a conclusion is increasing. One reason is the Internet, where judgments are often posted online on court web sites, without the benefit of an editor’s red pen. Another reason is the rise in the number of people representing themselves in court, people without lawyers to explain to them the implications of a judge’s decision.
Superior court judges do get training in writing judgments. For the past 30 years, new federally-appointed judges have attended seminars on writing judgments and several are held in Canada each year. See this August 2011 story, “Clarity in the courts: Justices go to writing school” in the Toronto Star. The Canadian Institute for the Administration of Justice joins with the National Judicial Institute, the Canadian Judicial Council and the Office of the Commissioner for Federal Judicial Affairs to promote educational activities tailored to judges. The problems caused by copy-and-paste judgments could be thoroughly explored as a matter of best practices or as a matter of judicial duty in these institutional settings.
For further academic commentary on the judicial duty to give reason, see the following:
- Mark Elliott, “Has the Common Law Duty to Give Reasons Come of Age Yet?” (2011) Public Law 56
- K. Fjeldstad, “Just the Facts, Ma ‘am: A Review of the Practice of the Verbatim Adoption of Findings of Fact and Conclusions of Law” (2000) 44 St. Louis Law Journal 197
- H. Ho, “The Judicial Duty to Give Reasons” (2000) 20 Legal Studies 42
- G. Lebovits, “Ethical Judicial Opinion Writing” (2008) 21 Georgetown Journal of Legal Ethics 237
- David Lyons, “Justification and Judicial Responsibility” (1984) 72 Cal. L. Rev. 178
- Lord Macmillan, “The Writing of Judgments” (1948) 26 Canadian Bar Review 491
- Frederick Schauer, “Giving Reasons” (1994-1995) 47 Stan. L. Rev. 633
- Samuel I. Shuman, “Justification of Judicial Decisions” (1971) 59 Cal. L. Rev. 715
- M. Taggart, “Should Canadian judges be legally required to give reasoned decisions in civil cases?” (1983) 33 University of Toronto Law Journal 1