Supreme Court of Canada Upholds Judge’s “Copycat” Decision (In Part): Cojocaru v. British Columbia Women’s Hospital and Health Centre

by John McKiggan

Last week, the Supreme Court of Canada (SCC) issued a decision in a complicated medical malpractice case that raised the issue of when it is appropriate for judges to incorporate reasons taken from the briefs of one of the parties.


In Cojocaru v. British Columbia Women’s Hospital and Health Centre the mother, Monica Cojocaru had previously given birth by C-section. On the recommendation of her obstetrician, Dr. Yue, Ms. Cojocaru agreed to delivery of her baby, Eric Cojocaru, by “vaginal birth after Cesarean section”, otherwise known as VBAC.

During the labour, Ms. Cojocaru suffered a ruptured uterus (a known risk of VBAC) which restricted a supply of oxygen to her baby. The scar from the previous Cesarean section was the apparent reason for the uterine rupture. An emergency C-section had to be performed. However, Eric suffered brain damage causing cerebral palsy.

At trial, Eric and his mom brought a claim against the hospital, the nurses that were attending during the delivery, Dr. Yue, and the other physicians that treated mom during the delivery.
At trial, the nurses and doctors were found liable by the trial judge and the plaintiffs were awarded the sum of $ 4,000,000.00 in compensation.

Copycat decision

Although the judge rejected some of the plaintiffs’ submissions and discussed the legal issues and his conclusions in his own words, the trial judge’s reasons were copied almost entirely from the Plaintiffs’ written briefs.

The Defendants appealed on the basis the Judge’s plagiarism gave rise to an appearance of unfairness that merited overturning the judgment.

The British Columbia Court of Appeal agreed, and overturned the trial judge’s decision and sent it back for a new trial.

The parties appealed to the Supreme Court of Canada.

The unanimous decision of the Court was written by Chief Justice McLachlin.

Originality “desirable” but not required

McLachlin C.J. succinctly dealt with the main ground for the appeal:

“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.”

Longstanding practice

The court carefully examined the “long standing practice” in the courts in Canada, and the rest of the world, to incorporate portions of the written submissions made by the parties into written decisions.

The Court pointed out that judicial decisions can be set aside for a substantive legal error or a procedural error. A complaint that a judge’s decision is not sufficiently original, or has been plagiarized from a party’s brief is a procedural complaint. In other words, it does not go to the legal merits of the decision about whether the decision was reached in a procedurally manner.

The Court decided that copying, in whole or in part, submissions from various parties did not, in and of itself, constitute an error.

Cutting and Pasting raises concerns

However, the more a judge incorporates the unchanged written submissions of one party or another, the greater the concern that the judge has not independently and impartially reviewed the evidence and arguments.

The Court pointed out that:

“Judgments routinely incorporate phrases and paragraphs from a variety of sources, such as decided cases, legal treatises, pleadings, and arguments of the parties. … Often the sources are acknowledged, but often they are not.”

McLachlin C.J. stated, whether acknowledged or not, such passages are part of the judicial writing process and do not render the process procedurally unfair.

Independent assessment critical to judicial process

The greater concern is whether wholesale incorporation of a party’s written arguments suggest a Judge did not independently assess the facts and evidence.

In the case of the Cojocaru claim, the Supreme Court stated:

“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.”

“Better” not to copy

The quote went on to say:

“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.” [Emphasis added]

Findings upheld

In the end, the SCC upheld the trial judge’s finding of liability against Dr. Yue, and ordered that Dr. Yue pay the full and entire amount of the award to the plaintiffs.

So, thirteen years after the birth of Eric Cojocaru, the boy, now a young man, finally achieves justice.

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