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$130,000 Non Pecuniary Assessment for Chronic Fibromyalgia

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Fibromyalgia Cases, Uncategorized. 57 Comments on $130,000 Non Pecuniary Assessment for Chronic Fibromyalgia

Adding to this site’s archived ICBC fibromyalgia cases, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry dealing with such an injury.
In last week’s case (SR v. Trasolini) the Plaintiff was involved in a 2007 rear end collision.  Fault was admitted by the Defendant.  Although causation was vigorously contested, the Court conclude the collision caused a fibromyalgia condition which left the plaintiff partially disabled with chronic symptoms.  In assessing non-pecuniary damages at $130,000 Madam Justice Ballance provided the following reasons:
[169]      The injuries sustained by Ms. R. have caused her years of suffering, fluctuating degrees of chronic pain all over her body that is sometimes quite severe, and the concomitant diminution of joy and pleasure to most aspects of her life.  Although her symptoms have gradually improved, particularly in the year or so leading up to trial, they remain sufficiently significant to continue to meet the diagnosis of fibromyalgia.  The expert opinion evidence that I accept is skeptical that Ms. R. will ever fully recover to her former self despite her completion of the Pain Program, commitment to physiotherapy and other treatment modalities and reasonable exercise when she is able.
[170]     A formerly outgoing, sociable and highly energized and engaged woman, Ms. R. is now more reclusive and has had to lean heavily on her aging mother to perform her share of household chores and, for about a six-month period, to assume most of her personal grooming.  She worries about her future, including how she will be able to care for her elderly mother in the passing years.
[171]     The Accident has left Ms. R. to confront the grim reality that she has an incurable and complex syndrome that manifests as chronic pain and an array of other unwelcome physical, psychological and cognitive impairments.  For years to come, possibly indefinitely, she will be vulnerable to episodic aggravation of her physical symptoms, which in turn, will disrupt her sleep and produce an adverse effect on her overall emotional and cognitive well-being.  The person she was before the Accident has been forever altered.
[172]     While the toll taken on Ms. R. by the ill-effects of the Accident have been life- altering domestically, emotionally, recreationally, socially and vocationally, the most deleterious consequence for her is that it has limited her ability to fully realize her most passionate of life’s goals, namely to serve her faith.
[173]     I have reviewed all of the cases placed before me by counsel.  I do not propose to review them in detail as they provide general guidelines only, other than to say that only one of the authorities relied on by the defendants involved a plaintiff afflicted with fibromyalgia or a chronic pain syndrome.  Ms. R.’s authorities are far more instructive in light of their factual similarities to her circumstances; even still, they are not determinative.
[174]     Having considered the evidence as a whole and the application of the governing principles, it is my opinion that a fair and reasonable award for Ms. R.’s non-pecuniary damages is $130,000.

Traffic Signal Sequence Evidence Resolves Liability Dispute

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 55 Comments on Traffic Signal Sequence Evidence Resolves Liability Dispute

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating the potential value of traffic signal sequence evidence following an intersection collision.
In this week’s case (Kuma-Mintah v. Delange) the Plaintiff and Defendant were involved in an intersection collision.  The Plaintiff was heading westbound through a T-intersection.  At the same time the Defendant was attempting a left hand turn.  Both motorists claimed to have a green light arguing the other was to blame.  Evidence of the intersections traffic signal sequence ultimately proved important in resolving the dispute.

The Defendant initially gave evidence that she was stopped at the intersection for 30 seconds before the light turned green.  However traffic signal sequence evidence demonstrated that the vehicle would have only had to wait 11.3 seconds before changing sequence.  This ultimately undermined the reliability of the Defendant’s evidence.  In highlighting the significance of this evidence Mr. Justice Walker provided the following reasons:
[19]         Ms. Delange claims to have been stopped facing south at the Intersection on a red traffic signal. She said that she waited to turn left to head eastbound on the Lougheed Highway before the signal facing her turned to green. Once the traffic signal facing her turned to green, she proceeded slowly into the Intersection. As she did, she heard her husband, who was sitting behind her in the passenger seat on the left side of the vehicle, yell out that Mr. Kuma-Mintah’s vehicle was not going to stop. The collision occurred.
[20]         There was a period of time while she was giving evidence during the trial when Ms. Delange sought to move away from her wait-time estimate of 30 seconds that she gave at her examination for discovery. Her discovery evidence was very clear on the point. She also suggested the possibility that other vehicles were present at or near the Intersection. The evidence from the traffic engineer concerning the traffic signal sequence for the Intersection, which was not expert evidence, became known to Mr. Kuma-Mintah’s counsel only a few days before the trial began and to defence counsel shortly before the start of the trial (no adjournment of the trial was sought by the defence). While I do not consider that Ms. Delange, in providing new evidence suggesting a different wait-time and the possibility of other vehicles at or near the Intersection, was attempting to provide dishonest or misleading testimony following the recent disclosure of the traffic engineer’s evidence, her attempt to explain away her very clear discovery evidence was indicative of her ongoing struggle to comprehend how the accident could have occurred. I accept that she was trying to provide an overall account that she thought was truthful; it was, however, an account that was premised on post hoc reasoning…
[24]          Ms. Delange’s vehicle was the only one present at or near the Intersection that could have triggered any of the embedded traffic sensors. And as I have pointed out, I find that other than Ms. Delange’s vehicle, there was no traffic on the Lougheed Highway or United Boulevard during the relevant time before the accident occurred that would have made any difference to the traffic signals affecting Mr. Kuma-Mintah. That means that if Ms. Delange was stopped at the Intersection as she claims, then she would have been waiting for only 11.3 seconds, and not 30 seconds, before she could proceed to make her left-hand turn. Her vehicle would have automatically triggered the various traffic signals controlling the Intersection to change in accordance with the sequence design….
[29]         I find that Ms. Delange proceeded into the Intersection on a red traffic signal and collided with the vehicle being driven by Mr. Kuma-Mintah, contrary to s. 129(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. Mr. Kuma-Mintah was entitled to proceed through the Intersection on a green traffic signal pursuant to s. 127(1). I accept his explanation that there was insufficient time for him to have taken evasive action.
[30]         My findings are made on a balance of probabilities. My determination of fault is premised on the clear objective evidence concerning the sequence design of the traffic signals and the evidence of the accident reconstruction expert contained in his report. My determination is only partly derived from my assessment of the credibility of the witnesses when they gave their testimony. I have determined that the description provided by Mr. Kuma-Mintah is in “harmony with the preponderance of probabilities”: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.); Gariepy v. Ritchie, [1993] B.C.J. No. 2304 (S.C.); and Hou v. McMath, 2012 BCSC 257 at para. 27.

No Costs Consequences Triggered With Marginal ICBC Victory Over Formal Settlement Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing costs consequences following a trial where ICBC marginally beat their pre-trial settlement offer.
In last week’s case (Wattar v. Lu) the Plaintiff  was injured in a collision in which she and the Defendant were found equally at fault.  After the liability split the Plaintiff’s net damages awarded at trial came to $26,000.  Prior to trial ICBC made a formal offer of $27,500.  ICBC applied for costs consequences to flow from the Plaintiff’s choice to proceed to trial.  Mr. Justice Smith exercised his discretion and refused to award such consequences noting that the unrecovered potion of damages due to the operation of the Negligence Act was punishment enough.  The Court provided the following comments:
[13]         This was a three-day trial. In the absence of an offer to settle, the plaintiff would have been entitled to half of her costs, or $5,500, to reflect the division of liability. That would include $2,250, representing half of the costs attributable to three days of trial ($1,500 times three, divided by two). That is the proper amount by which to reduce the plaintiff’s costs as a consequence of her refusal to accept the settlement offer.
[14]         Counsel for the plaintiff argues that the plaintiff should recover all of her disbursements related to damages because she was substantially successful on that issue, but for the reduction resulting from the liability finding. I cannot accept that argument because the offer clearly encompassed a reasonable assessment of the plaintiff’s damages, discounted for the substantial liability risk. Acceptance of the settlement offer would have made it unnecessary for the plaintiff to prove her damages at trial.
[15]         The plaintiff is therefore entitled to costs of $3,250, plus one half of her disbursements to the date of the offer. In view of the modest award and the relatively small gap between the offer and the judgment, I do not consider it appropriate or necessary to further punish the plaintiff with an award of any portion of the defendant’s costs.

Driver Liable for Collision After He "Dozed Off" at the Wheel

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 61 Comments on Driver Liable for Collision After He "Dozed Off" at the Wheel

Reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, assessing fault for a collision where a motorist lost consciousness while behind the wheel.
In this week’s case (Holt v. Rother) the Defendant motorist lost consciousness while driving his vehicle.  His vehicle veered across the oncoming lane and onto the southwest shoulder where he struck and seriously injured the Plaintiff pedestrian.
The Defendant argued he was not at fault suggesting that an “unexpected and unforeseeable medical condition” caused him to lose consciousness.  Mr. Justice Barrow rejected this explanation finding it was more likely than not that the Defendant simply ‘dozed off’.  In finding the Defendant fully at fault Mr. Justice Barrow provided the following reasons:
[34]         The issue that remains is whether the defendant has rebutted the inference of negligence that arises from the proven manner of driving. He points out that it is impossible to prove what may have caused him to lose consciousness, if that is what happened, and he is not required to do that. It seems to me that it is at least as likely that Mr. Rother dozed off just before he struck the plaintiff as it is that he lost consciousness for some other reason. In fact, I think this is the more likely explanation. He was 76 years old. He had been out in the hot sun all afternoon. He had been intermittently swimming. He had driven 20 or 30 minutes on the highway in the late afternoon. I agree with Dr. Cameron that a syncopal episode, while possible, is not a likely explanation for what happened. Further, I agree that vasovagal fainting, while more likely than a syncopal episode, is less likely than simply dozing off.
[35]         In reaching this conclusion, I have considered the actual driving evidence. It is not necessary to conclude that Mr. Rother was attempting to flee the scene after he struck the plaintiff. I have no doubt that had he been aware he hit the plaintiff, he would have stopped immediately. I think it likely that he was not aware he struck the plaintiff and was not attempting to drive away when he hit the lamp standard. I think it likely that he was aroused from his momentary lapse of consciousness, and before he regained his wits, he struck the lamp standard and his vehicle rolled over.
[36]         As noted by Evans J. in Boomer v. Penn, “[t]he evidence must disclose the probability that the driver’s acts and omissions were not conscious acts of his volition”. Further, he must establish that if he suffered a lapse in consciousness, that it was not reasonably foreseeable. Dr. Francis said, and common experience supports, that drowsiness while driving is usually preceded by some advance warning, such as yawning, heavy eyelids, or a lack of acute awareness. While Mr. Rother did not say that he experienced such symptoms he is, as noted, an unreliable historian, and his memory of events shortly before the accident is not complete.
[37]         I am not satisfied that Mr. Rother has discharged the onus he bears to establish that his driving, on the day in question, was not volitional or, if it was not volitional, that it was the result of something that was not reasonably foreseeable.

$25,000 Non-Pecuniary Assessment for Largely Recovered Soft Tissue Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, Uncategorized.

A pattern that is sometimes seen with soft tissue injuries is that of significant recovery with a lingering occasional flare up of symptoms.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for such an injury.
In this week’s case (Lumley v. Balilo) the plaintiff was involved in a 2009 rear end collision.  The defendant admitted fault.  The Plaintiff suffered soft tissue injuries which largely recovered in 9 months but occasionally flared with activity.  In assessing $25,000 for her non-pecuniary damages Madam Justice Baker provided the following reasons:
[45]         I conclude that Ms. Lumley’s injuries did not incapacitate her from work; or from any of the social and recreational activities she enjoyed before the accident, although discomfort in her neck and back caused her to limit her physical activities for a few months following the accident.  After a few weeks she stopped using prescription medication and relied on occasional use of an over-the-counter analgesic to manage her discomfort.  She had resumed her normal activities by April 2010 – nine months after the accident, although she continued to have stiffness and some discomfort in her neck and muscle tension headaches from time to time.  She was able to combine a full-time job with attendance at a part-time college course to become a physical fitness trainer; and began working as a trainer while completing the course, in addition to working full-time at her regular job.  Although Ms. Lumley testified that she had not improved at all after terminating physiotherapy treatments in February 2010, I conclude that she has made a significant recovery and that her current symptoms are mild and controlled with only occasional use of a non-prescription pain medication…
[57]         Ms. Lumley is a person who enjoyed a high level of fitness before the accident, and derived an important source of enjoyment and satisfaction from her participation in sports and recreational activities.  Ms. Lumley continues to be very fit and active but as a result of the accident, sometimes experiences stiffness or discomfort in her neck; and headaches that her doctor believes are causally related to muscle tension in her neck.  While these residual symptoms are not disabling; they do occasionally interfere with Ms. Lumley’s enjoyment of life and in particular, her enjoyment of the sports and athletic endeavours that are so important to her.
[58]         I am not persuaded, however, that the symptoms are likely to persist in any significant way and that the symptoms Ms. Lumley continues to experience are mild and can be managed with the use of non-prescription analgesics.
[59]         I have considered the authorities cited.  I award Ms. Lumley $25,000 in damages for pain, suffering and loss of enjoyment of life. 

Police Officer Not Negligent For Crash While Running Red Light in Course of Duties

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

While operators of emergency don’t enjoy complete immunity when running a red light in the course of their duties, they do enjoy a statutory right of way to disobey traffic controls in appropriate circumstances.  Reasons for judgment were released recently by the BC Supreme Court, New Westminster Registry, clearing a police officer from fault following such a collision.
In the recent case (Singh v. British Columbia (Public Safety)) the Plaintiff entered an intersection on a green light.  At the same time the Defendant officer, who was responding to a call of a man with a knife threatening a child, ran a red light while responding to the call.  A crash occurred and the Plaintiff sued for damages.  The claim was ultimately dismissed with the Court finding that the Plaintiff was negligent and the officer properly entered the intersection within the scope of her duties.  In exculpating the officer of fault Madam Justice Adair provided the following reasons:
[68]         Constable Parrish testified that her siren was activated when she approached and was at the intersection of Scott Road and 96th Avenue.  She explained when and how she activated her siren.  She explained how the siren is activated by pressing a button, and that, once the siren button is pressed and the siren is turned on, it remains on until the button is pressed again.  She explained that she reactivated the siren after speaking with her dispatcher, and that she had it activated as she travelled down 96th Avenue towards the intersection with Scott Road.  Her explanations were logical, appropriately detailed and consistent with the circumstances in which Constable Parrish was operating.
[69]         I find that when Constable Parrish arrived at the intersection of Scott Road and 96th Avenue, both the emergency lights and the siren on her vehicle were activated, and they remained activated when she proceeded into the intersection.  I accept Constable Parrish’s evidence in this regard.  Her evidence is supported by and consistent with the evidence of Constable Lucic and also Mr. Barros (whose evidence was unchallenged).  The conclusion that both the emergency lights and siren were activated is not contradicted by the evidence of Mr. Deol or Mr. Chand, which I find to be equivocal.  Moreover, I conclude that, on this point, Mr. Singh does not accurately recall the events.
[70]         I conclude, therefore, that, at the intersection, Constable Parrish had the right of way, and Mr. Singh was obliged to yield to her.
[71]         I find further that Constable Parrish had reasonable grounds to believe that, at the relevant time, the risk of harm to members of the public from the exercise of the privileges under s. 122(1) of the Motor Vehicle Act was less than the risk of harm to members of the public (namely, the child threatened with harm) if those privileges were not exercised….
[78]         I find that Constable Parrish was proceeding cautiously across the intersection, with her emergency lights and siren activated, and her conduct was consistent with that of a reasonable officer acting reasonably and within the statutory powers (and duties) imposed on her in the circumstances on September 12, 2007.  In my view, she was entitled to assume that Mr. Singh would yield the right of way to her.

Contra Proferentem To The Rescue

Written by admin on . Posted in Uncategorized.

Contra Proferentem is a legal principle that is used to interpret ambiguous clauses in a contract against the party responsible for drafting the clause.  Reasons for judgement were released this week by the BC Court of Appeal using this principle to reinstate an insurance death benefit following a fatal plane crash.  (note of disclosure- my firm, MacIsaac & Company was involved in the prosecution of this case)
In this week’s case (McLean v. Canadian Premier Life Insurance Company) the Plaintiff’s spouse was killed when a chartered aircraft in which he was travelling crashed.
He had a $1 million Common Carrier Accidental Death Benefit Rider through the Defendant.  When the Plaintiff applied for payment the Defendant refused to pay arguing that the insurance did not cover crashes while on a Chartered flight.  The BC Court of Appeal disagreed and ordered that the Defendant pay the $1 million insurance benefit.  In finding that this flight was not excluded from coverage the BC Court of Appeal invoked the contra proferentem principle and provided the following reasons:
[14]         The court should give effect to the clear language of the contract, interpreted in the context of the agreement as a whole. It should also endeavour to interpret similar insurance contracts consistently. Where the language of the agreement reveals two possible interpretations, the court should seek to resolve this ambiguity by searching for an interpretation that reflects the true intent and reasonable expectations of the parties when they entered the contract, and achieves a result consistent with commercial reality and good sense. Considerations of reasonableness and fairness inform this exercise. An implied term should not be added to the contract unless it “goes without saying”, or is necessary to provide business efficacy. Nor should the court imply terms that render the express words of the contract meaningless, or contradict them. The onus to establish an implied term rests on the party seeking to rely on it: Perrin at para. 27; Wingtat Game Bird Packers (1993) Ltd. v. Aviva Insurance Company of Canada, 2009 BCCA 343 at para. 23, 96 B.C.L.R. (4th) 109.
[15]         If these principles do not resolve the ambiguity, the principle of contra proferentem will operate to favour construction against the insurer. This principle may not be used, however, to create or magnify an ambiguity…
[35]         I am satisfied it is therefore necessary and appropriate to invoke the doctrine of contra proferentem. While the coverage provision clearly requires that the insured be riding in a Common Carrier at the time of the crash, the words used to define a Common Carrier fall short of creating a clear temporal requirement for each of the definitional elements. Nor does the Rider create a clear exclusion for charter flights.
[36]         I agree with the appellant that the respondent could have easily remedied these deficiencies with clear language if it intended to exclude coverage for charter flights. It must bear the consequences of its failure to do so, and the temporal ambiguity must be resolved in favour of the appellant.
[37]         I conclude the trial judge erred in finding that, to be a Common Carrier, the aircraft had to be operating on a regular scheduled passenger service between defined points at the time of the accident.

Reviewing Discovery Transcripts No Reason to Exclude Expert Report

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized. 56 Comments on Reviewing Discovery Transcripts No Reason to Exclude Expert Report

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing whether an expert report should be excluded because the expert reviewed the examination for discovery transcripts of the parties prior to authoring the report.  In short the answer is no.
In this week’s case (Friebel v. Omelchenko) the Plaintiff objected to the admissibility of two defence reports arguing that “it is improper to provide an expert with examination for discovery transcripts and then leave the expert to draw his or her own conclusions as to which facts should be used to support the opinion“.  Madam Justice Ker rejected this submission finding this practice in and of itself does not render the report inadmissible.  In reaching this conclusion the Court provided the following reasons:
[22]         A review of Dr. Sobey’s reports does not give rise to any of the concerns underlying the previous criticism of the practice of allowing experts to review examination for discovery evidence.
[23]         Dr. Sobey was provided with a set of factual assumptions. Those factual assumptions are set out in detail in his report and where further assumptions have been drawn from a review of the documentary evidence those assumptions and their source have been indicated. For instance, at times, Dr. Sobey makes explicit reference to those assumptions and one example can be found at p. 13 of his July 19, 2013 report where in answering question five, he states, “I have been asked to assume that Dr. Omelchenko was available by telephone contact”.
[24]         Moreover, where Dr. Sobey did make factual assumptions from the documentary information provided to him, those assumptions are also clearly set out. As an example, see p. 10 of Dr. Sobey’s July 19 report where, in answering question two, he states:
Review of Dr. Omelchenko’s chart revealed that he obtained the drinking history, evaluated the Mr. Friebel [sic] for current symptoms of withdrawal, and documented the period since Mr. Friebel’s last drink. Dr. Omelchenko’s chart did not comment on whether Mr. Friebel was using other mood altering drugs. I note from the documents and specifically the PharmaNet profile that Mr. Friebel had been prescribed the sedative medication, Zopiclone…
[25]         When read as a whole, Dr. Sobey’s reports leave no doubt as to the factual assumptions underlying his opinion. As such, the case is distinguishable from Sebastian, supra, and the trier of fact is able to properly evaluate and discern whether the factual assumptions have been proven in evidence at trial and what weight should be given to Dr. Sobey’s opinion.
[26]         The plaintiff’s application to have the reports of Dr. Sobey excluded on the basis that he reviewed transcripts from examination for discovery is dismissed.

$80,000 Non-Pecuniary Assessment for TFC Tear Reqiring Surgery

Written by admin on . Posted in ICBC Wrist Injury Cases, Uncategorized.

Adding to this site’s archives of non-pecuniary judgments for wrist injuries, reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a TFC tear.
In this week’s case (Burtwell v. McCarrrey) the Plaintiff was injured in a 2009 rear end collision.  She sustained a TFC tear which required surgical intervention. In addition to this she suffered from various soft tissue injuries which continued to post problems at the time of trial.  In assessing non-pecuniary damages at $80,000 Madam Justice Fisher provided the following reasons:
[42]         I am satisfied that the plaintiff has proved that she suffered the following injuries as a result of the accident of January 20, 2009: (1) TFCC tear in the right wrist and aggravation of arthritis in the right CMC joint; (2) strain and tendonitis in the right shoulder; (3) soft tissue injuries to the neck and upper back; and (4) some depression and anxiety…
[51]         In summary, the TFCC tear caused considerable pain but was substantially resolved within 18 months of the accident, leaving an ongoing loss of strength and mild restriction in flexion; the CMC joint arthritis continues to be painful, will likely progress, and limits the use of the right hand; the shoulder injury also caused considerable pain for over three years, was significantly resolved by May 2012 and there is a good possibility for a more complete recovery by about January 2014 (four years post-accident); the neck and back pain resolved within four months and continues to flare up but will likely improve once Ms. Burtwell engages in a reconditioning program; and the depression is well controlled with medication and is likely to improve with additional counselling, after which medication may no longer be necessary…
[57]         It is always difficult to apply the facts of one case to another, as no two cases are really alike. In general, the awards at the $90,000 to $100,000 level were for injuries that had more serious long term effects than the injuries I have found Ms. Burtwell to have suffered, and the awards at the lower level were for similar injuries that had less impact. In my view, an appropriate award for non-pecuniary damages in this case, taking into account Ms. Burtwell’s pre-existing conditions, is $80,000.

"The Long Tradition of Judicial Copying" Discussed by the Supreme Court of Canada

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In reinstating a successful damages award, the Supreme Court of Canada had the opportunity to discuss if and when it is ok for a trial judge to copy a lawyer’s submissions in their reasons for judgement.
In today’s case (Cojocaru v. British Columbia Women’s Hospital and Health Centre) the infant Plaintiff suffered brain injury during birth at BC’s Women’s Hospital and Health Care Centre.  He successfully sued for malpractice and was awarded damages for his past and future care needs and other losses.  The trial judgement “reproduced large portions of the submissions of the plaintiffs.“.  The Court of Appeal overturned the judgement finding this judicial “copying” displaced ‘the presumption of judicial integrity and impartiality’.,
The Supreme Court of Canada disagreed and reinstated the damages awarded at trial (although differed in who the liable parties were allowing the cross appeals of some of the defendants).  In doing so Canada’s highest Court provided the following reasons discussing “the long tradition of judicial copying“.
[10]                          This was a complex case involving many issues. The trial judgment, rendered some time after a lengthy trial, consisted of 368 paragraphs.  Only 47 were predominantly in the judge’s own words; the balance of 321 paragraphs was copied from the plaintiffs’ submissions.  This raises the concern that the trial judge did not put his mind to the issues, the evidence and the law as he was sworn to do, but simply incorporated the plaintiffs’ submissions.
[11]                          The question before us is whether a trial judge’s decision should be set aside because his reasons incorporate large portions of material prepared by others, in this case the plaintiffs…
[35]                          The concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking. They are not the judge’s reasons, but those of the person whose prose the judge copied.  Avoiding this impression is a good reason for discouraging extensive copying.  But it is not the copying per se that renders the process of judgment-writing unfair.  A judge may copy extensively from the briefs in setting out the facts, the legal principles and the arguments, and still assess all the issues and arguments comprehensively and impartially.  No one could reasonably contend that the process has failed in such a case.
[36]                          To sum up, extensive copying and failure to attribute outside sources are in most situations practices to be discouraged.  But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity.  This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision…
[49]                          In summary, courts in Canada and elsewhere have held that copying in reasons for judgment is not, in itself, grounds for setting the judge’s decision aside.  However, if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside.
[50]                          This does not negate the fact that, as a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words her conclusions on the facts and the law.  The process of casting reasons for judgment in the judge’s own words helps to ensure that the judge has independently considered the issues and come to grips with them.  As the cases illustrate, the importance of this may vary with the nature of the case.  In some cases, the issues are so clear that adoption of one party’s submissions or draft order may be uncontroversial.  By contrast, in complex cases involving disputed facts and legal principles, the best practice is to discuss the issues, the evidence and the judge’s conclusions in the judge’s own words.  The point remains, however, that a judge’s failure to adhere to best practices does not, without more, permit the judge’s decision to be overturned on appeal.