Sufficiency of Reasons Discussed by ABCA Decision
The Edmonton Journal headline reads “Edmonton judge’s cut-and-paste findings tossed by appeal court“. The sensational headline is about a decision cited University of Alberta v Chang, 2012 ABCA 324 (linked to the Alberta Courts website).
The appeals were from two chambers decisions:
University of Alberta v. Chang, 2011 ABQB 595 (CanLII), http://canlii.ca/t/fp692
University of Alberta v. Chang, 2011 ABQB 596 (CanLII), http://canlii.ca/t/fp6bv
In the above decisions, the judge granted the applications to dismiss the case for delay and prosecution and dismissed the actions.
The Court of Appeal was very critical of the reasons:
[17] The 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”…
The ABCA decision is a good read and summarizes particulars of what would constitute inadequate reasons.
Last week, the Supreme Court of Canada heard oral argument in a similar case out of BC, an appeal from Cojocaru (Guardian ad litem of) v British Columbia Women’s Hospital and Health Center, 2011 BCCA 192. See
http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=34304
Thanks for providing the link to the BC case Alan.
For those interested, Paula Simons has a followup article in the Edmonton Journal http://www.edmontonjournal.com/news/Simons+Judge+paste+ruling+undermines+confidence+legal+system/7572766/story.html today.
It is surely legitimate for a judge to agree with one party and disagree with the other, and to state the reasons for judgment in the words of the successful party. Why make up original language that may be no better than the language put before the court by people who spent a lot of time honing it to a cutting edge?
However, one does have to clean it up (it was very sloppy not to take out ‘it is submitted’!), and one should have to deal with the arguments on the other side in some neutral fashion. The AB CA say that written arguments are often one-sided, but that’s not always a disqualification – sometimes one side is just clearly right…
It must be harder where it’s a matter of credibility. A judge may have a good instictive reason to believe party A and not believe party B, without being able to point to any particular shiftiness or hestitation or perspiration on the part of the disbelieved witness. Besides saying “I found A to be credible and B not to be”, what is the duty of explanation? Obviously if there is more in hard evidence, it should be mentioned, but in the ‘he said, she said’ (or same sex versions….), what else is there?
I think most litigators would agree that when judges simply cut and paste our opponent’s arguments, they have not sufficiently put their minds to the issues, whereas when they cut and paste our own arguments, they have understood the case perfectly.