In Cojocaru v British Columbia Women’s Hospital and Health Centre  2 S.C.R. 357, the trial judge’s decision copied significant parts of the Plaintiffs’ submissions (although he did not accept all of their submissions). The trial judge did not, however, attribute the incorporated material to its original author. The trial judge did discuss some issues and concluded in his own words. The Defendants were held to be liable in negligence.
The Court of Appeal for British Columbia held, by a majority, that the trial judge’s decision ought to be set aside due to the extensive copying of the Plaintiffs’ submissions and ordered a new trial.
The Supreme Court of Canada allowed the appeal against the decision of the Court of Appeal. In summary, the judgment of the Supreme Court stated the following:
- A judicial decision can be set aside for a procedural error. The test to apply is whether, in the eyes of a reasonable and objective observer who is apprised of all the circumstances, the decision was reached in a procedurally unfair manner, as the judge did not decide the issues independently and impartially as the judge is sworn to do.
- There is a presumption of judicial integrity and impartiality.
- There must be cogent evidence to rebut the presumption.
- Unlike other pieces of writing (such as academic writing and journalism) which forbid plagiarism, copying without acknowledgement is acceptable and not, per se, unfair.
- If, however, the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put his/her mind to the evidence and the issues and did not render an impartial, independent decision, then the presumption would be rebutted.
Based on the facts of that case, the Supreme Court of Canada held that, taking into account the extent and quality of the trial judge’s copying of parts of the Plaintiffs’ submissions, as well as the circumstances of the case, a reasonable and objective person would not have thought that the trial judge failed to put his mind to the critical issues and decide them independently and impartially.
Hong Kong case-law
The Hong Kong Court of Appeal discussed this issue in Wang Dan Shin v Nina Kung (unreported, CACV 460/2002, 28 June 2004) at - and , which was cited by the Supreme Court of Canada in Cojocaru at . The Hong Kong Court of Appeal stated that:
“A judge’s total adoption or rejection of counsel’s submissions per se does not imply the lack of independent adjudication, nor does it constitute a valid ground for upsetting the judgment on the basis of an unfair trial.”
In Hong Kong, it is a common practice for counsel to be asked to send written submissions in the form of hard and soft copies to the judicial clerk.
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