At the Court: What’s in a judgment?

How much of a party’s submissions can a judge incorporate into the judgment without attribution? Setting aside issues of honesty in scholarship, the Court will have the opportunity to address the duties and responsibilities of judges in Eric Victor Cojocaru, et al. v. British Columbia Women’s Hospital and Health Center, et al. At stake is $4,000,000 awarded at trial for brain damage suffered during birth against a hospital, which was set aside by the Court of Appeal in favour of a new trial.

The respondent hospital and healthcare workers argue that the judge did not adequately address the arguments put forth by counsel, and that “such wholesale adoption creates a risk that a reasonable and informed person would apprehend the trial judge failed to independently and impartially consider the evidence and the law.” The appellants remind the Court the different reasons it has given on why judges write decisions; judges are to

1. Tell the parties affected by the decision why the decision was made;
2. Provide public accountability of the judicial decision; justice is not only done, but is seen to be done;
3. Permit effective appellate review; and
4. Help ensure fair and accurate decision making; the task of articulating 
the reasons directs the judge’s attention to the salient issues and lessens 
the possibility of overlooking or under-emphasizing important points of fact or law.

The appellant infant asks, rhetorically, if “the presumption of judicial integrity and impartiality [is] so fundamentally displaced so as to render the trial unfair (or a nullity) in the absence of cogent evidence of bias?” The appellant argues that a simple adoption of a party’s submissions by the judge is not, in and of itself, sufficient to find the decision unjust, citing Binnie, J.’s observation of time constraints on the judiciary in R v Sheppard, 2002 SCC 26 at para 55.

The Supreme Court will hear the case on November 13, 2012.