Must a Judge’s Decision Involve More than Just Cut-and-Paste?
In the Alberta Court of Appeal judgment in a case called University of Alberta v. Chang, the court considered the legal sufficiency of a written decision by a trial judge that consisted largely of cut-and-pasted excerpts from the lawyers’ written arguments.
The contentious Reasons for Judgment had been handed down by the hearing judge in a contract dispute between the University of Alberta and one of its former biotech researchers. The finished draft had included large portions of verbatim excerpts from the written briefs submitted on the parties’ behalf by their respective lawyers. To quantify the extent of the copying: the lawyers had collectively submitted 79 paragraphs of submissions in their briefs; the judge’s Reasons incorporated all 79 of these.
The litigants accordingly appealed the judgment.
In hearing the appeal, the Court of Appeal undertook a detailed analysis of the written Reasons, pointing out:
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.
More troubling, according to the Appeal Court, was the fact that the written Reasons wholly lacked any meaningful analysis or legal reasoning. For example, it contained a heading, ostensibly titled “Analysis”; however, the text that followed consisted mainly of a recitation of the evidence, more excerpts from the litigant’s submitted briefs, and a generic recitation of the applicable law. Moreover, headings were not accurately descriptive, paragraphs were not uniformly numbered, certain passages and rules recitations were duplicated, and a discussion of specific legal concepts was repeated in different two spots in the judgment.
Given the written judgment’s many deficiencies, the Court of Appeal concluded that it simply could not be allowed to stand. After reciting a litany of dangers that are inherent in the judge’s approach, including a perceived lack of impartiality and an inability by litigants to know the reasons for a judge’s decision, the Court added:
The repute of the administration of justice depends in the end on litigants having confidence in and respect for the decisions that affect their rights, whether they won or lost. It is imperative that the litigants feel that they were fairly dealt with, that their arguments and evidence were considered, and that a principled, balanced, transparent, independent and impartial analytical process has been applied in reaching the final decision.
Faced with this kind of unusual situation, every appeal court has two choices: 1) to order a new hearing (which is costly and time-consuming for the litigants); or 2) to provide appellate review in cases where the factual record is nonetheless sufficiently clear.
The Court of Appeal considered both options in the context of this case. Here, even leaving aside the objectionable use of cut-and-paste, the resulting Reasons were so deficient and inadequate that the reasoning process behind them was effectively obscured. The requirement for a “meaningful analysis” had simply not been met. As the Appeal Court observed: “The reasons end without providing any particular remedy, or stating any conclusion.”
While admittedly constituting an “extreme” example, the Appeal Court ultimately ordered the matter remitted back for another trial for a proper adjudication.
(Coincidentally, the Supreme Court of Canada recently heard argument in a similar case, Cojocaru v. British Columbia Women’s Hospital and Health Center, which involved the question of whether and to what extent a judge is entitled to copy from litigants’ submissions without acknowledgment. In the facts of that case, the judge had copied 321 of 368 paragraphs submitted in argument by the parties’ lawyers. A decision in that Supreme Court of Canada case is still pending).
For the full text of the University of Alberta v. Chang decision, see:
University of Alberta v. Chang, 2012 ABCA 324 http://www.albertacourts.ab.ca/jdb/2003-/ca/civil/2012/2012abca0324.pdf
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