text:
Cojocaru (Guardian Ad Litem) v. British Columbia Women's Hospital and Health Center,
Date: 20110414
Dockets: CA037090, CA037107
Docket: CA037090
Eric Victor
Cojocaru, an infant by his Guardian Ad Litem, Monica Cojocaru,
and Monica Cojocaru
Respondents/Appellants on Cross Appeal
British Columbia Women's Hospital and Health Center and F. Bellini
Appellants/Respondents on Cross Appeal
Dr. Dale
R. Steele, Dr. Jeremy A. Green, Dr. Jenise Yue, Dr. Jennifer
Dr. Fawaz Edris, C. Scott, C. Wong, M. Voerwold, K. Gleeson, C. MacQueen, Jane Doe and John Doe
Respondents/Respondents on Cross Appeal
- And -
Docket: CA037107
Eric Victor
Cojocaru, an infant by his Guardian Ad Litem, Monica Cojocaru,
and Monica Cojocaru
Respondents/Appellants on Cross Appeal
Dr. Dale R. Steele, Dr. Jenise Yue and Dr. Fawaz Edris
Appellants/Respondents on Cross Appeal
Dr. Jeremy A. Green, Dr. Jennifer Muir, C. Scott, C. Wong, M. Voerwold, K. Gleeson, C. MacQueen, Jane Doe and John Doe, British Columbia Women's Hospital and Health Center and F. Bellini
Respondents/Respondents on Cross Appeal
The Honourable Madam Justice Levine
The Honourable Mr. Justice K. Smith
The Honourable Madam Justice Kirkpatrick
On appeal from the Supreme Court of British Columbia, April 9, 2009, (Cojocaru (Guardian Ad Litem) v. British Columbia Women's Hospital, 2009 BCSC 494, Vancouver Registry No. S032599)
Counsel for Eric Victor Cojocaru and Monica Cojocaru the Respondents /Appellants on Cross Appeal:
P.T. McGivern
A. Howell
D. Shugarman
L.C. Galvin
Counsel for British Columbia Women's Hospital and Health Center and F. Bellini the Appellants/Respondents on Cross Appeal:
C.L. Woods, Q.C.
A. Howden-Duke
Counsel for Dr. Dale R. Steele, Dr. Jeremy A. Green, Dr. Jenise Yue, Dr. Jennifer Muir, Dr. Fawaz Edris, C. Scott, C. Wong, M. Voerwold, K. Gleeson, C. MacQueen, Jane Doe, John Doe the Respondents/ Respondents on Cross Appeal:
J.M. Lepp, Q.C.
M.K. Gill
Place and Date of Hearing:
Vancouver, British Columbia
May 20 and 21, 2010
Place and Date of Judgment:
Vancouver, British Columbia
April 14, 2011
Written Reasons by:
The Honourable Madam Justice Levine and The Honourable Madam Justice Kirkpatrick (Page 36, para. 107)
Dissenting Reasons by:
The Honourable Mr. Justice K. Smith (Page 1, para. 1)
Reasons for Judgment of the Honourable Mr. Justice K. Smith:
[1] Did a trial judge commit an error of law in delivering reasons for judgment that consisted largely of a reproduction, without attribution, of the successful party's written closing submissions? This question, among others, arises out of two appeals heard together from a judgment of the Supreme Court of British Columbia pronounced by the Honourable Mr. Justice Groves following a 30-day trial of a medical-negligence action.
[2] The respondent Eric Victor Cojocaru, the son of the respondent Monica Cojocaru, suffered brain damage during his birth at the BC Women's Hospital and Health Care Center. The Hospital and its employee, F. Bellini, an obstetrical nurse who was charged with caring for Mrs. Cojocaru during the time shortly before the birth, are the appellants in the first appeal. Dr. Dale R. Steele, Dr. Jenise Yue, and Dr. Fawaz Edris, the appellants in the second appeal, are physicians who were involved in Mrs. Cojocaru's care at the material times. The respondents' actions against Dr. Jeremy A. Green and Dr. Jennifer Muir and against nurses C. Scott, C. Wong, and M. K. Gleeson were dismissed by consent at the outset of the trial. Their actions against nurses M. Voerwold and C. MacQueen were dismissed by the trial judge following the trial. The respondents' cross appeals of the award of damages, launched in each appeal, were abandoned.
[3] The reasons for judgment are indexed as 2009 BCSC 494. The trial judge found each of the appellants liable in negligence and awarded damages as follows:
To the infant plaintiff
Cost of future care
Loss of future earning capacity
Loss of interdependent relationship
Non-pecuniary damages
In trust for plaintiff Monica Cojocaru
Plus investment management fees and
tax gross-up
To the plaintiff Monica Cojocaru
Non-pecuniary damages
Interest on in trust award
As well, he awarded the respondents pre-judgment interest and costs.
[4] The appellants submit that the trial judge's unattributed adoption of the respondents' written argument as reasons for judgment amounts to an error of law that necessitates a new trial. Alternatively, they contend, if the reasons can be considered to be his own, the trial judge made palpable and overriding errors of fact; misapprehended and ignored important evidence; entirely overlooked a central causation defence; and erred in his assessment of damages, including in making an award for a head of damages that had not been claimed in the pleadings, had not been explored in the pre-trial proceedings or in the evidence at trial, and had not been mentioned by the respondents until their final submission. Further, they submit the trial judge erred in law in concluding they owed a duty of care to an unborn fetus. They seek an order that the appeals be allowed and the actions against them be dismissed or, alternatively, that there be a new trial of the actions against them or, further alternatively, that the appeal of damages be allowed, that the non-pecuniary award of damages to the respondent Monica Cojocaru be set aside, and that the award of damages for costs of future care be remitted to the trial court for reassessment.
[5] For the reasons that follow, I would not give effect to the appellants' submission that the reasons for judgment are not those of the trial judge. However, I would allow the appeal in part since, as I will explain, the trial judge's adoption of the respondents' submissions as his reasons led him to err in his assessment of liability and damages.
[6] I will deal first with the submission that the adoption of the respondents' written argument as reasons for judgment is, in itself, an error of law that requires a new trial.
[7] The purposes of providing reasons for judgment are to justify and explain the result, to tell the losing party why he or she lost, to provide for informed consideration of the grounds of appeal, and to satisfy the public that justice has been done: R. v. Walker, 2008 SCC 34 at para. 19, [2008] 2 S.C.R. 245. To that list can be added to help to "ensure fair and accurate decision making", since "the task of articulating the reasons directs the judge's attention to the salient issues and lessens the possibility of overlooking or under-emphasizing important points of law": R. v. R.E.M., 2008 SCC 51 at paras. 11-12, [2008] 3 S.C.R. 3.
[8] Reasons for judgment must truly reflect the reasoning that led the trial judge to the judgment. Otherwise, "the purpose of giving reasons is defeated and their consideration does not contribute to a meaningful appellate review": R. v. Teskey, 2007 SCC 25 at para. 15, [2007] 2 S.C.R. 267, per Charron J., writing for the majority.
[9] However, as Charron J. also said in Teskey (at para. 19), trial judges benefit from a presumption of integrity and "the reasons proffered by the trial judge in support of his decision are presumed to reflect the reasoning that led him to his decision." In the same passage, she noted that the presumption of integrity contains within it the notion of impartiality, a conception of profound importance: see Ethical Principles for Judges, (Ottawa: Canadian Judicial Council, 2004) at 30:
From at least the time of John Locke in the late seventeenth century, adjudication by impartial and independent judges has been recognized as an essential component of our society. Impartiality is the fundamental qualification of a judge and the core attribute of the judiciary. [Footnote omitted.]
[10] Although the presumption of integrity is generally applicable, it is not immutable. After noting, at para. 20 of Teskey, that there is an "expectation that judges will strive to overcome personal bias and partiality to carry out the oath of their office to the best of their ability" and that judicial "impartiality is essential to achieve trial fairness", Charron J. continued, at para. 21:
[21] As reiterated in R. v. S. (R.D.), fairness and impartiality must not only be subjectively present but must also be objectively demonstrated to the informed and reasonable observer. Even though there is a presumption that judges will carry out the duties they have sworn to uphold, the presumption can be displaced. The onus is therefore on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons [do not reflect] an articulation of the reasoning that led to [the decision].
[11] Writing extra-judicially in respect of the American Bar Association's Model Code of Judicial Conduct, Canon I (a judge should "uphold the integrity and independence of the judiciary"), Judge Joyce G. George of the Ohio Supreme Court made the following apt remarks in her Judicial Opinion Writing Handbook (Buffalo: William S. Hein & Co., Inc., 2007) at 713-14:
The judge has an ethical obligation to act independently. Thus, he has the responsibility in an individual case to make his own decision on the outcome of the case, to decide the various issues presented and to reason through to a conclusion. He must express his own views on the merits, accept or reject opposing views, resolve any conflicts that exist in relevant evidence, find facts by using his own rendition of the facts as presented and his own perceptions of the credibility of witnesses, and arrive at a resolution.
When a judge adopts verbatim a brief or the proposed findings and conclusions written by one of the parties, he creates the appearance that he has relinquished his judicial authority to that party. While he may not, in fact, have relinquished his authority, without undertaking an independent examination of the facts or the law, the resolution has been made subject to challenge.
[12] It appears there are only three reported instances in Canada of a trial judge's reproducing substantially all of the submissions of a party as reasons for judgment.
[13] The appellants refer to one of them, R. v. Gaudet (1998), 40 O.R. (3d) 1, 125 C.C.C. (3d) 17 (C.A.), where the appellant argued the inclusion of the Crown's 239-page written closing submissions as an integral part of the 246-page written reasons for conviction gave rise to an appearance of unfairness and a miscarriage of justice. The Court dismissed this ground of appeal, concluding that, totally apart from the Crown's written submissions, the judge's reasons demonstrated that he was alive to the issues and that he rejected the appellant's core defence (at para. 41). The Court noted, as well, that after referring to the Crown's written submissions the trial judge "observed that he had intended to set out 'my own' analysis of the evidence but when he completed that analysis he concluded that he agreed with the Crown's written submissions in their entirety and that he could see no reason to 'plagiarize'" (at para. 42).
[14] Earlier, the same Court dealt with a similar question in Sorger v. Bank of Nova Scotia (1998), 39 O.R. (3d) 1, 160 D.L.R. (4th) 66 (C.A.). In Sorger, the first one and one-quarter pages of the trial judge's written reasons identified the parties and the issues, the next 124 and three-quarters pages simply reproduced the written submissions of the parties, and the final two pages enumerated 29 bald findings of fact recited verbatim from the respondent's submission. There followed these concluding paragraphs:
I make these findings because I preferred the evidence of the Defendants' witnesses and the arguments by Counsel for the Defendants were the more persuasive.
Accordingly, the action is dismissed against all Defendants.
On appeal, the Court of Appeal observed that the trial judge provided no analysis of the evidence or consideration of the relevant law (at para. 31) and added,
[31] … There is nothing to indicate that the trial judge attempted to grapple fairly and impartially with the case presented by the plaintiffs or decide it independently. Apart altogether from the legal obligation, if any, on a trial judge to give reasons, the form of the judgment here is an important factor in the apprehension left by the trial.
Accordingly, the Court allowed the appeal, concluding that "a reasonable and informed observer would have a reasonable apprehension that the mind of the trial judge was closed to a fair and impartial consideration of the appellant's case" (at para. 32).
[15] In Janssen-Ortho Inc. v. Apotex Inc., 2009 FCA 212, 392 N.R. 71, the Federal Court of Appeal considered reasons for judgment consisting of 250 paragraphs in which the trial judge "reproduced verbatim, without so saying, approximately 100 paragraphs [from the Respondent's Memorandum filed at first instance], including many of the headings, the underlining, the footnotes and the references to the evidence" (at para. 73). These passages "concern[ed] all the key issues before [the trial judge]" (at para. 74). In his majority reasons, Nadon J.A. observed (for the Court on this point),
[77] It would, in my respectful view, be advisable for a judge who intends to adopt a substantial part of a party's written submissions to say so explicitly. Where a judge is confronted with a complex factual case such as the one before us, the adoption of a party's written submissions without an acknowledgment may lead to the impression that the judge has not done the work which he is called upon to do, namely, to examine all of the evidence before him and to make the appropriate findings.
[78] One must bear in mind that when parties file written submissions, they do not have to make allowances for the other side's case. Specifically, parties tend to maximize the strong points of their case and to minimize their weaknesses. It is up to the Judge, after careful consideration of all the evidence and the arguments, to draw the line at the appropriate place.
Nevertheless, Nadon J.A. said, without descending into further detailed analysis, that he was not prepared to conclude that the trial judge failed to perform his duty to examine the evidence (at para. 79).
[16] There are other reported cases in which the trial judge has adopted a party's submissions by reference.
[17] In R. v. Dastous (2004), 181 O.A.C. 398, 60 W.C.B. (2d) 335, the trial judge had acknowledged conflicting evidence in the case and then stated "... I agree with the submissions of the Crown, I adopt all of the Crown's submissions. Her submissions are to be deemed [to be] part and parcel of these brief reasons." On appeal, the Ontario Court of Appeal observed, at para. 4,
[4] The dangers associated with simply adopting the Crown's submissions are realized in the instant case. … In addition to misquoting the Crown's submission…, the trial judge appears to have misapprehended the evidence since the injuries could not be said to be wholly inconsistent with the appellant's evidence.
The Court went on, at para. 5, to hold that the reasons were insufficient and prevented meaningful appellate review.
[18] In Canada (Attorney General) v. Ni-Met Resources Inc. (2005), 74 O.R. (3d) 641, 195 C.C.C. (3d) 1 (C.A.), the defendant appealed a decision to issue a warrant on the basis, in part, that by simply adopting the Attorney General's argument the authorizing judge had failed to provide adequate reasons for his decision . The authorizing judge's reasons in their entirety read:
In this application, I have been assisted significantly by the written memoranda of argument filed by each party. I have reviewed those memoranda again, and the authorities referred to, and have considered the oral submissions of each party. Because of the quality of the memoranda, these reasons can be brief, and I am able to incorporate extensive passages from the memoranda in my reasons.
The facts are fully developed in the memoranda filed. The issues are as framed in paragraphs 8 to 12, inclusive, of the Attorney General's memorandum and paragraph 17 of the respondent's memorandum.
For the reasons argued by the applicant, the Attorney General of Canada, in paragraphs 13 to 34, inclusive, of the Attorney General's memorandum of argument, the order sought is granted.
And I have so endorsed the application record.
The Ontario Court of Appeal concluded, at paras. 26-27,
[26] It is frequently inadvisable for a judge to rely solely on the submissions of one party in providing reasons for judgment: see R. v. Gaudet (1998), 125 C.C.C. (3d) 17 (Ont. C.A.) at 35-36. On the other hand, there are cases where the issue is so clearly defined and argued by the parties that the purpose of giving reasons will be met if the judge simply adopts the submissions advanced by one of them. So long as the losing party is able to determine why he or she lost and is not deprived of meaningful appellate review, the Sheppard test will be satisfied.
[27] In the present case, the parties provided the application judge with written submissions on a legal issue that was clearly defined and argued. The decision did not depend on the credibility of witnesses or findings of fact. When the application judge adopted the Attorney General's argument, the appellant knew precisely why it lost. I fail to see how, in the circumstances of this case, the appellant has been deprived of meaningful appellate review. Accordingly, I would not give effect to this ground of appeal.
[19] In R. v. Kendall (2005), 75 O.R. (3d) 565, 198 C.C.C. (3d) 205 (C.A.), the Ontario Court of Appeal considered the adequacy of oral reasons that consisted simply of the following two sentences:
Shannon Kendall pleaded not guilty to impaired driving, and driving with over 80 milligrams of alcohol in 100 millilitres of blood on the 10th of May, 2002. I agree with and adopt the submissions made on behalf of the accused, and there will be an acquittal on both counts.
At para. 57, the Court remarked,
...[T]his court has previously cautioned against and warned of the dangers inherent in a trial judge's adoption of the submissions of the Crown in their entirety, because of the miscarriage of justice concerns that thereby arise: see R. v. Dastous, (2004), 181 O.A.C. 398 at para. 3 and R. v. Gaudet (1998), 125 C.C.C. (3d) 17 at para. 55. I agree...that these concerns may also arise where a trial judge simply adopts defence submissions in their entirety. Consequently, this 'incorporation by reference' approach to reasons ordinarily should be avoided.
The Court ultimately concluded that the trial judge's reasons did not support a conclusion that he conducted an independent review of the evidence and considered the submissions of both parties before reaching a conclusion. Rather, the reasons afforded no insight into the reasoning process and disclosed no basis for the acquittals (at para. 62). Accordingly, the Court allowed the appeal and ordered a new trial.
[20] In the case at bar, the reasons for judgment run to 368 paragraphs (105 pages) in length. The trial judge copied, without so acknowledging, 321 paragraphs almost word-for-word from the respondents' written closing submissions (with inconsequential changes, such as replacing phrases like "it is submitted" with phrases like "I have concluded"). Forty paragraphs were written in the trial judge's own words and the remaining seven paragraphs contain a mix of passages copied from the respondents' written submissions and passages written in the words of the trial judge.
[21] The appellants submit the unacknowledged adoption of the respondents' written argument stands alone as a reversible error. They contend the reasons demonstrate no evidence of any reasoning process or the formulation of any opinions other than those of counsel for the respondents and that, as a result, they create a reasonable apprehension that the trial judge did not conduct an independent review of the evidence, did not engage in his own analysis, and did not thereafter reach his own findings of fact. Consequently, the appellants submit, they do not provide a basis for appellate review and the trial judge has committed an error of law that necessitates an order for a new trial.
[22] The troubling form of the reasons for judgment certainly raises the question whether the presumption that the reasons are those of the trial judge should prevail in this case. However, there are signs in the reasons that the trial judge applied his mind to the issues.
[23] For example, he made findings against Dr. Steele and Dr. Edris (at paras. 171-73) that he did not take from the respondents' submissions but set out in his own words. Further, he did not adopt the respondents' submissions that he should find Nurse MacQueen and Nurse Voerwold liable. Rather, he dismissed the claim against Nurse MacQueen in three paragraphs (at paras. 174-76) and the claim against Nurse Voerwold in two paragraphs (at paras. 212-13), all written in his own words. Also, he rejected in his own words the appellants' submission that they owed no duty of care to an unborn fetus (at paras. 223-24). In discussing the effects of the infant respondent's injuries, the trial judge added some findings to those set out in the respondents' submissions (at paras. 240-42). In his discussion of the infant respondent's impairment of earning capacity, he set out in his own words the submissions made by the appellants, summarized evidence to which the appellants referred, and came to conclusions as to the infant respondent's future prospects (at paras. 283-86, 296). Similarly, in discussing the claim for damages for loss of interdependent relationship, the trial judge referred to the appellants' submission and arrived at a conclusion, all expressed in his own words (at paras. 302-03). As to the cost of future care award, he made findings of fact and expressed them in his own words (at paras. 340-42). As well, he reviewed evidence and reached conclusions concerning the "in trust" claim (at paras. 353-56, 360-64, 366). Finally, he assessed damages under each head in amounts substantially less than had been set out in the respondents' written submissions (at para. 367).
[24] Two passages in particular indicate the published reasons are those of the trial judge.
[25] First, the trial judge's comments regarding the cost of future care award, made in his words, confirm that the judgment was the result of his own analysis. He said,
[340] At the time of trial, Eric was a child in Grade 1. Attempting to predict the cost of Eric's future care is the most difficult aspect of this case. The evidence and submissions of the defendants are based on faulty assumptions. As I noted earlier, these assumptions in the care expert's report of Ms. Mageau simply are not consistent with Eric's current level of functioning as I find it to be and as such the cost of future care reports of the defendants are woefully and completely inaccurate. That being said, the costs of future care report of the plaintiffs give little if any prospect for Eric's circumstances in relation to his future care improving. There is some evidence that with time Eric is able to learn certain tasks. Although I am convinced that Eric will never get over the disabilities which prohibit him from being competitively employed, such that he could earn even modest income to contribute to his expenses, I am convinced that with assistance, particularly at an early age, the long term future prospects for Eric are not as dire, and as such not as costly, as suggested in the cost of future care estimates of the plaintiffs. Eric has the great good fortune of having a dedicated and driven mother who will be his advocate and, with sufficient resources early on, will help Eric achieve the maximum that he can achieve in life and will help Eric achieve the maximum level of independence that is possible.
[341] At this stage, it is virtually impossible to conclude to what extent Eric will achieve skills which will assist him in caring for himself in the future. However, now is the time for a decision to be made.
[342] The cost of care recommended by the plaintiff's experts is $3,806,005. Based on my conclusion that with assistance early on, Eric should be able to achieve some level of skill which will assist in his future care, it is in my view appropriate to apply a 30% contingency to this amount and as such, I would assess costs of future care at $2,665,000.
[Emphasis added.]
[26] Second, after reproducing the respondents' submission in support of an award of $257,895 in trust to compensate Mrs. Cojocaru for the services she performed for her son, the trial judge said, in his own words,
[362] Counsel for the defendants rely on the decision of Crane v. Worwood (1992), 65 B.C.L.R. (2d) 16, [1992] 3 W.W.R. 638 (S.C.). There, mother and daughter were seriously injured in a motor vehicle accident and the husband father devoted himself to caring for them. As a result, his business suffered and he lost his principal client. He attributed the loss of his client to his decision to care for his wife and daughter during recovery and estimated the cost of his decision to be $400,000. He claimed that amount from the defendant driver. The claim was rejected on the basis that there is no authority for awarding the full amount of opportunity costs to a caregiver if the cost exceeds the reasonable value services. An award was made to the plaintiffs for the reasonable cost of care provided by Mr. Crane, assessed at $7500. In Crane, the court made it clear that restraint should be exercised in awarding damages under this head of damages as the principle is that normal compassion and care of relatives of the injured is not to be compensated nor is the anticipated cost of raising an uninjured child. The compensation is to be for extra services provided by the parent of an injured child.
[363] Here, the compensation for extra services provided by the parent to the injured child is a significant factor.
[27] Subsequently, he said, again in his own words,
[366] The plaintiff's claim is essentially based on the estimated calculation of the extra hours expended by Ms. Cojocaru with Eric over that in which she would expend for a "normal child". It is also based on a nanny cost for equivalent live-in services payable at a rate of $24.75/hour. That is, in my opinion, overly generous. Considering the contingencies associated with this claim. I have concluded that proper compensation for Ms. Cojocaru, based on the principles enunciated in Brito, is $144,000, based on 8000 extra hours of care at a rate of $18 per hour.
[Emphasis added.]
[28] Thus, in these passages the trial judge weighed the competing submissions of the parties and, in the result, did not give effect to either. Rather, he did his own analysis and reached his own conclusions. Further, the conclusion that focusing the cost of future care on Eric's early years will probably lead to a better long-term outcome was the judge's conclusion based on his own analysis, as was the deduction of 30% for contingencies from the respondents' evidence of the cost. These findings were not suggested by either party. Moreover, the judge's reference to the difficulty of assessing cost of future care relative to the other aspects of the case indicates he engaged in his own analysis of those other aspects as well. In my view, we must take him at his word and I would not accede to the submission that the reasons for judgment do not represent the deliberations of the trial judge.
[29] The question, then, is whether a reasonable and informed person, considering all the circumstances, would apprehend that the trial judge failed to independently and impartially consider the evidence and the law and to arrive at his own conclusions on the issues. Such an allegation must be given careful consideration since it calls into question not only the personal integrity of the judge but the integrity of "the entire administration of justice", and therefore "cogent evidence" will be required to rebut the presumption of integrity: R. v. S. (R.D.), [1997] 3 S.C.R. 484 at paras. 113, 117, 151 D.L.R. (4th) 193. An informed person, in these circumstances, is one who is taken to know all the relevant circumstances of the case and is familiar on a realistic and practical level with the work of trial judges and with the values underlying the presumption of integrity: R. v. S. (R.D.) at paras.111, 134. In my view, such a person would not infer from the reasons in this case that the trial judge shirked his duty. Accordingly, it is my view that the presumption that the reasons for judgment reflect the reasoning that led the trial judge to his decision has not been displaced.
[30] I would add that there is nothing inherently wrong with adopting the submissions of a party in whole or in part as reasons for judgment so long as those submissions truly and accurately reflect the judge's own independent analysis and conclusions. Trial judges are busy, and there can be cases, of which Gaudet and Ni-Met Resources Inc. are examples, where a party's submissions so accurately reflect the trial judge's reasoning that nothing would be gained by postponing other pressing work in order to rewrite the reasoning and conclusions in the judge's own words. However, judges who are tempted to prepare reasons for judgment in this way should be acutely aware they may create a perception that they did not reach their decisions independently. Such a perception would tend to undermine public confidence in the impartiality and independence of the judiciary generally and would bring the administration of justice into disrepute: R. v. S.(R.D.) at para. 111.
[31] Moreover, as noted in Janssen-Ortho Inc. at para. 78, judges should not forget that submissions are argumentative and partisan and they must therefore take pains to ensure that no important evidence or argument that might support the other side is overlooked. The trial judge failed to recognize this danger in the case at bar for, as I will now explain, in adopting the respondents' written submissions he overlooked and misapprehended important evidence, made errors in his legal analysis, and failed entirely to deal with a cogent defence argument.
[32] Childbirth can take place either naturally or by caesarean section, that is, by removal of the baby through a surgical incision in the mother's uterus. The surgical procedure leaves a scar on the wall of the uterus. Because of the risk that such a scar could rupture under the pressure of a subsequent natural childbirth and expel the fetus into the mother's abdominal cavity, the general rule for many years was "once a caesarean, always a caesarean". However, for some years now, the medical profession has recognized that natural childbirth can safely follow a caesarean section if the surgical incision was made transversely in the lower segment of the mother's uterus, without a vertical or lengthwise component. Such cases are known as "trial of labour" or "VBAC" (Vaginal Birth After Caesarean).
[33] Although the risk of complete uterine rupture in such cases is low, it has grave consequences, since a fetus extruded into the mother's abdominal cavity may be detached from its normal supply of blood and oxygen and, if that condition persists for more than ten to 15 minutes, the fetus will likely suffer permanent brain damage and possibly death. Such an event can also be life-threatening for the mother. Accordingly, it is accepted in the medical profession that a VBAC should not be attempted if the mother's physician is not sure that the uterine scar from her prior caesarean section is a low transverse scar. It is also accepted that, in those cases considered suitable for a VBAC, the risk of uterine rupture is a material risk that must be explained by the mother's physician and the mother's informed consent to a VBAC must be obtained before proceeding.
[34] Mrs. Cojocaru delivered her first child by caesarean section in Romania in 1992. Her obstetrical surgeon, Dr. Clepce, removed the baby through a low transverse incision in her uterus. Accordingly, she was a suitable candidate for a subsequent VBAC.
[35] Mrs. Cojocaru immigrated to Canada while she was pregnant for the second time. Once here, she was referred by Dr. Bojanowska-Moore, a general practitioner, to the appellant Dr. Yue for obstetrical care. Normally, before recommending a VBAC, an obstetrician in Dr. Yue's position should review the operative report of the prior caesarean section in order to determine the orientation of the uterine scar. Dr. Yue did not obtain Dr. Clepce's operative report from Romania. However, on the basis of what she said Mrs. Cojocaru told her, Dr. Yue was confident Mrs. Cojocaru's uterine scar was a low transverse scar. As a result, she recommended a VBAC.
[36] When Mrs. Cojocaru had gone ten days past term without spontaneous delivery, Dr. Yue recommended labour be induced by insertion into her vagina of prostaglandin gel, a hormone gel that was in widespread use at the time to facilitate the onset of labour. She was admitted to the appellant Hospital for this procedure by Nurse MacQueen at 10:00 on May 21, 2001. The appellant Dr. Edris, an obstetrical resident, inserted the prostaglandin gel at approximately 10:50.
[37] Dr. Steele was the on-call doctor that day for a group of obstetricians and gynecologists that included Dr. Yue. As such, he was responsible for the care of all patients of members of his call-group at the appellant Hospital, including Mrs. Cojocaru, and at Mount Saint Joseph Hospital and St. Vincent's Hospital. Dr. Steele did not personally attend Mrs. Cojocaru that day until after the delivery.
[38] May 21, 2001 was a statutory holiday. The trial judge described the day as "hectic" at the appellant Hospital, noting that, as a result of a dispute with the Hospital Employees' Union, the Hospital was short-staffed and there were too few staff members on duty to care for all patients present.
[39] Although the trial judge made no specific mention of these facts, the unchallenged evidence was that the Hospital had four operating rooms ("OR"s) but only one anaesthetist and one OR team on duty at any given time throughout the day. Anticipating these conditions, the Hospital had scheduled no caesarean sections for the day, as it would have on a normal day. Rather, the operating room was taking only statim (urgent, emergency) caesarean sections. The undisputed evidence was that the waiting list that day for caesarean sections designated "urgent" was one to two hours long and that they were given priority.
[40] After the prostaglandin gel was inserted, Mrs. Cojocaru's condition was monitored for a period of time and then, at 12:50, she was transferred to the ante partum unit to await the onset of labour. At 16:25, after she had begun to experience contractions, she was moved to the low-risk ward in the labour and delivery area (although she was technically a high-risk patient, the high-risk ward was full). On her arrival, Nurse Voerwold, the supervising nurse in the low-risk ward, assessed her and attached an external fetal heart monitor, which continuously recorded the fetal heart rate on a paper "strip" produced at the nursing station, just outside Mrs. Cojocaru's room. Since there was no nurse available to deliver one-on-one continuous care to Mrs. Cojocaru at that time, Nurse Voerwold checked on her regularly while she carried on with her supervisory duties. When a woman facing imminent delivery arrived in the ward, Nurse Voerwold called in Nurse Bellini, an experienced obstetrical nurse, from the high-risk ward and assigned her to provide primary care to Mrs. Cojocaru while she turned her attention to the newly-arrived patient. Nurse Bellini took over from Nurse Voerwold at 17:45. At that time, Mrs. Cojocaru's labour was progressing uneventfully, as it had been throughout the afternoon.
[41] At 18:00, at Nurse Bellini's request, Nurse Voerwold paged Dr. Steele. Dr. Steele responded at about 18:05 and Nurse Bellini spoke to him on the telephone at the nursing station. She told him Mrs. Cojocaru was asking for pain medication and appeared to be becoming more distressed with contractions. Dr. Steele prescribed medications and directed that Mrs. Cojocaru be given a saline solution intravenously.
[42] While Nurse Bellini was on the telephone with Dr. Steele, Mrs. Cojocaru had an urge to void. She got out of her bed, she and her husband disconnected the fetal heart monitor and, with the assistance of her husband and her sister-in-law, she went to the bathroom. According to the fetal heart monitor strip, the disconnection occurred at 18:06.
[43] When Nurse Bellini returned to Mrs. Cojocaru's room at 18:10 after speaking with Dr. Steele, she saw Mrs. Cojocaru was beside the bed and observed that she was in distress. She re-attached the fetal heart monitor and returned Mrs. Cojocaru to bed. Then, Mrs. Cojocaru's membranes ruptured spontaneously, a normal event. At 18:15, Nurse Voerwold came to the room in answer to Nurse Bellini's request for assistance with administering the IV prescribed by Dr. Steele. Nurse Voerwold was alarmed to see that Mrs. Cojocaru was quite restless and was tossing from side to side, so she left to page the obstetrical resident, Dr. Green.
[44] At 18:18, the fetal heart strip recorded a bradycardia (the fetal heart rate dropped suddenly to well below the normal range and remained there). Dr. Green arrived at 18:20. He conducted a vaginal examination of Mrs. Cojocaru at 18:22 and observed frank or fresh bleeding, a sign of partial tearing or rupture of the uterus. His attempt to attach a scalp electrode to the fetus to obtain more accurate heart-rate readings was unsuccessful, since the fetus's head was no longer in its expected position and he could not reach it. Dr. Green immediately ordered a "stat" caesarean section.
[45] Accordingly, Nurse Voerwold telephoned Dr. Steele, the high-risk ward, the OR team, the anaesthetist, and the resident paediatrician to alert them. Nurse Bellini and Nurse Voerwold left the ward with Mrs. Cojocaru at 18:28 and delivered her to the OR at 18:29, where the anaesthetist and OR team had just completed another stat caesarean section. Dr. Green, assisted by Dr. Muir, began the caesarean section immediately at 18:30 and delivered the respondent Eric Cojocaru at 18:41. Dr. Steele, who had been checking on post-operative gynecological patients at Mount Saint Joseph Hospital when he was called by Nurse Voerwold at 18:25, arrived just as the baby was delivered and assisted in the completion of the surgery.
[46] The bradycardia was a result of a complete rupture of Mrs. Cojocaru's uterus that extruded the fetus into her abdominal cavity and detached the placenta from the uterine wall, the fetal source of blood and oxygen. It was common ground that the baby would have had to have been delivered within ten to 15 minutes of this event to avoid brain damage. Since he was not delivered until 18:41, 23 minutes after the rupture and the complete placental abruption, he suffered serious brain damage.
[47] The reasons contain no specific finding as to the precise location of the uterine rupture. However, it appears to be accepted by the parties that the previous uterine scar was implicated in the rupture.
Dr. Yue
[48] The trial judge found Dr. Yue was negligent in two respects which he discussed under the headings "informed consent" and "malpractice". He found she failed to obtain Mrs. Cojocaru's informed consent to both the VBAC procedure and the use of prostaglandin gel in the induction procedure and that she fell below the requisite standard of care in recommending the VBAC procedure when she was not certain that the scar from Mrs. Cojocaru's first caesarean section was a low transverse scar.
[49] In order to attach liability in negligence to Dr. Yue on the latter basis, it was incumbent on the plaintiffs to establish that Dr. Yue owed them a duty of care, that Dr. Yue breached the duty of care, and that they suffered loss or damage they would not have suffered but for the breach of the duty of care: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 6, 21-23, [2007] 1 S.C.R. 333.
[50] Duty of care was not an issue. Nor was the standard of care, which the trial judge described as follows:
[141] The medical evidence is clear that VBAC is only appropriately recommended as an option for a patient who has had a prior caesarean section when the orientation of the original scar is known to be low transverse caesarean section, or at least where there is sufficient information to allow the attending physician to determine with a very high degree of accuracy that the original surgery was done with a low transverse incision.
[51] Whether Dr. Yue fell below this standard of care was disputed and was resolved by the trial judge in favour of the respondents, in part on findings of credibility arising out of conflicting evidence given by Mrs. Cojocaru and her witnesses on the one hand and Dr. Yue on the other. In his view, Dr. Yue failed in her duty to obtain Dr. Clepce's operative report before recommending a VBAC. He concluded that "Dr. Yue was negligent in recommending VBAC as a delivery option where she failed to properly verify the orientation of the previous caesarean scar" (at para. 154).
[52] As to whether Dr. Yue's conduct caused the harm claimed by the plaintiffs, the trial judge said,
[216] The test for causation is the "but for" test. That is, "but for" the negligence of Dr. Yue in recommending VBAC as a delivery option, would the plaintiff have suffered the injuries complained of? Dr. Yue seeks to avoid liability in this case by arguing that since the operative report by Dr. Clepce indicates that Ms. Cojocaru had a low transverse caesarean section, the failure to obtain the report is unrelated to the injury suffered. This, however, misses the point. The negligence complained of is negligence in recommending VBAC as a delivery option. Had Dr. Yue not done this, Ms. Cojocaru would have had a repeat caesarean section and the injury would indeed have been avoided.
[217] It is not sufficient to say "had she properly investigated the original operative report, Dr. Yue may well have recommended VBAC". The fact is that she did not investigate it, and her recommendation was made without obtaining the operative report and without properly investigating the issue. The negligence was in the recommendation. Causation flows from the negligence proven.
[53] With respect, the trial judge did not ask himself the correct question in this passage. The question was not whether Mrs. Cojocaru would have had a caesarean section if Dr. Yue had not recommended VBAC as a delivery option. Rather, the question was whether, but for Dr. Yue's failure to "properly investigate" Mrs. Cojocaru's history and to obtain the operative report, she would have recommended a VBAC. In other words, had Dr. Yue "properly verif[ied] the orientation of the previous scar" as the trial judge found she should have done, would the respondents' loss and damage have been avoided? Had Dr. Yue done what the trial judge found she failed to do, she would have verified that the previous scar was indeed a low transverse scar and that Mrs. Cojocaru was, just as Dr. Yue had assumed, an appropriate candidate for a VBAC and recommending a VBAC would not have been a breach of the standard of care. Thus, Dr. Yue's failure to verify the orientation of the previous scar had no causal connection to the ultimate outcome, which would have been no different had she done what the trial judge found she failed to do. It follows that the conclusion that Dr. Yue was liable in negligence in this respect cannot stand.
Informed consent – VBAC
[54] The finding that Dr. Yue was negligent in failing to obtain Mrs. Cojocaru's informed consent to the VBAC procedure turned on findings of credibility arising out of conflicting evidence.
[55] Dr. Yue had little or no actual recollection of her dealings with Mrs. Cojocaru and based her testimony largely on the entries she made in Mrs. Cojocaru's medical records and on what she described as her "invariable routine". Both she and Mrs. Cojocaru testified that, on their first visit on March 16, 2001, she explained the VBAC and caesarean section procedures, she advised Mrs. Cojocaru of the risks and benefits of a caesarean section, she advised Mrs. Cojocaru of the benefits of the VBAC procedure, and she advised Mrs. Cojocaru to discuss the options with her husband and to let her know their decision.
[56] They disagreed, however, on two important points. First, Dr. Yue testified that she had advised Mrs. Cojocaru in accordance with her invariable routine, which was to advise patients who had previously undergone caesarean sections of the risks associated with VBAC; she said she had never failed to discuss the risk of uterine rupture with such patients and that uterine rupture was the "key aspect" and the "most important aspect" of the discussion. Mrs. Cojocaru testified Dr. Yue told her nothing about the risks of VBAC. The second important disagreement arose out of Mrs. Cojocaru's testimony that she did not tell Dr. Yue she wanted a VBAC; rather, she said, she told Dr. Yue she wanted a caesarean section and understood she had to attempt a VBAC as a condition precedent to obtaining a caesarean section. Dr. Yue testified Mrs. Cojocaru never told her she wanted a caesarean section and said she would have readily performed one had Mrs. Cojocaru asked. As well, she said, Mrs. Cojocaru told her she wanted a VBAC. On this point, she relied on her notation made in Mrs. Cojocaru's medical chart that said "Wants VBAC". The note was not dated, but she must have made it at an appointment after their first discussion of the options, either after their visits on April 3, April 23, or April 30, 2001 since, on April 30, 2001, the medical records bearing the note were delivered to the appellant Hospital in preparation for Mrs. Cojocaru's admission.
[57] The trial judge preferred Mrs. Cojocaru's evidence to Dr. Yue's evidence and concluded that Dr. Yue failed to explain the risks of VBAC to Mrs. Cojocaru (at para. 108).
[58] The appellants contend the trial judge's credibility findings are flawed by reason of his misapprehension of a number of pieces of evidence on which he relied and by his overlooking other relevant evidence. Accordingly, they submit, since the conclusion that Dr. Yue negligently failed to obtain Mrs. Cojocaru's informed consent to VBAC turned on the trial judge's credibility findings, there must be a new trial of this issue.
[59] I will deal with only two of the appellants' submissions on this point.
[60] One of the reasons the trial judge gave for rejecting Dr. Yue's evidence was that she "failed to chart any aspect of her alleged conversation regarding the risks that she says were explained to Mrs. Cojocaru" (at para. 98(d)). After observing that Dr. Yue did not recall her discussions with Mrs. Cojocaru and was relying on her invariable routine and her chart notes, the trial judge began this part of his analysis by stating,
[92] In this regard, it is important to first look to the notes made by Dr. Yue at the time. The notes indicate that Dr. Yue did advise Ms. Cojocaru that there was an option available to her — VBAC versus repeat caesarean section. Ms. Cojocaru herself agrees that such a discussion took place. There are virtually no other notes, however, indicating that there was any discussion of the risks associated with each option.
[61] However, the appellants submit, Dr. Yue did prepare a contemporary written record relating to her discussion with Mrs. Cojocaru in the form of a comprehensive consultation report to Dr. Bojanowska-Moore, a copy of which she kept in Mrs. Cojocaru's medical records. Dr. Yue testified that it is standard practice to dictate a letter to the patient's family doctor every time a new patient is seen in order to communicate to the doctor "what has happened and what is planned for the patient in the future." She said, "[U]sually, after I have seen the patient, I have outside transcription services. I dictate on the phone about the details of the visit." She said the transcription service picks up the dictation, types it, and sends it back to her by courier. She said the date on such letters is put on the letters by the typist on the date they are typed. Dr. Yue's evidence on this point was not challenged or contradicted.
[62] As already noted, Dr. Yue saw Mrs. Cojocaru for the first time on March 16, 2001. In her consultation report to Dr. Bojanowska-Moore, which bore the date March 18, 2001, Dr. Yue said, in part,
This is a 32 year old patient with a previous C-section. The methods of delivery were discussed with her in detail. She can either choose an elective repeat C-section or a trial of vaginal birth after C-section. This [sic] success of VBAC is approximately in the order of about 80%, as she was not in labour the first time. The only concern is the risk of 1/200 of uterine rupture. At the moment she is somewhat undecided and will let me know later on….
[63] Dr. Yue testified that by "in detail" she meant she had discussed "the advantage and disadvantage of each method with her" and "in particular … the risk of uterine rupture". She confirmed the accuracy of the report, including that she had advised Mrs. Cojocaru that the risk of uterine rupture was 1 in 200, that it was her practice to deliberately overstate the risk, and that she had encouraged Mrs. Cojocaru to discuss the options with her husband before deciding. None of this testimony was challenged in cross-examination of Dr. Yue. When this passage of the letter was put to Mrs. Cojocaru in cross-examination, she agreed it accurately reflected their discussion except, she said, there was no discussion of the risks of VBAC.
[64] The trial judge gave no weight to this letter in his assessment of the reliability of Dr. Yue's evidence that she advised Mrs. Cojocaru of the risks of VBAC. He explained,
[93] A number of comments need to be made about this letter. First, the letter appears to have been dictated two days after her visit with Ms. Cojocaru. Next, while this letter purports to suggest that Ms. Cojocaru is actually advised that there was a 1 in 200 risk of uterine rupture, there is no indication that the significance of that statistic was brought home to Ms. Cojocaru. To an average layperson, the medical significance of a uterine rupture would likely be completely unknown.
[94] There is no indication in either Dr. Yue's notes, or her consultation letter, that she made any effort to account for Ms. Cojocaru's obvious language problem. Ms. Cojocaru herself testified that her command of the English language at that time was rudimentary at best. This is perfectly understandable, she having immigrated to Canada only four months before. Ms. Geller, who attended with Ms. Cojocaru at this initial visit with Dr. Yue, confirmed that Ms. Cojocaru's command of the English language was very poor. All of the experts, and Dr. Yue herself, agreed that the obligation of the physician was to make sure that the patient actually understands what risks are being faced by the medical options being provided. Dr. Yue clearly failed in her obligation with respect to communicating the risks, and the significance of those risks to the health of herself and her baby, to Ms. Cojocaru.
[65] The statement that the letter appeared to have been dictated two days after the visit is puzzling. During his final submissions, counsel for the respondents argued the letter was dictated two days after the visit but the trial judge interrupted and said, "That wasn't [Dr. Yue's] evidence. Her evidence was that she would have dictated it at the time … on some telephone service to some agency… who would then type … it up and send it … back to her for signature", to which counsel responded, "I apologize… My Lord. You're right. … So we'll just take that out." Thus, it appears that both respondents' counsel and the trial judge accepted Dr. Yue's evidence on this point and that, when the trial judge reproduced the above passage from the respondents' submissions in his reasons for judgment, he forgot that the respondents had abandoned this argument.
[66] Moreover, the other two reasons given by the trial judge for discounting the evidentiary value of the letter reveal a misapprehension of the nature and purpose of the letter. The trial judge apparently failed to grasp that the letter was a consultation report from a specialist doctor to a family doctor to report on the results of the referral of the latter's patient. While the significance of the 1 in 200 risk of uterine rupture was something that had to be brought home to Mrs. Cojocaru, the family doctor would have known its significance and one would not expect Dr. Yue to have to explain the significance in the report. Further, the family doctor had met with Mrs. Cojocaru and had referred her to Dr. Yue. She would have known that Mrs. Cojocaru had difficulty with the English language and there would have been no reason for Dr. Yue to explain this to her in the consultation report or to explain what efforts she may have made to accommodate this difficulty.
[67] Thus, the absence of any mention in the letter of the significance of the 1 in 200 risk of uterine rupture and of any difficulties experienced by Dr. Yue in communicating with Mrs. Cojocaru were of no significance to the question being addressed by the trial judge – the reliability of Dr. Yue's evidence that she had explained the risks of VBAC to Mrs. Cojocaru.
[68] The appellants submit further that the trial judge also overlooked important evidence that could have affected his credibility assessment.
[69] As I have noted, Dr. Yue wrote "Wants VBAC" on Mrs. Cojocaru's chart at one of their appointments after the first one. The trial judge did not mention this note in his reasons for judgment. If the note accurately recorded what Mrs. Cojocaru told Dr. Yue, it could be seen as supporting Dr. Yue's evidence and contradicting Mrs. Cojocaru. If it did not represent what Mrs. Cojocaru said to Dr. Yue, what explanation could there be for its presence on the chart? The trial judge did not say, because he overlooked this important piece of evidence in his assessment of credibility.
[70] Had the trial judge not misapprehended the true import of Dr. Yue's reporting letter to Dr. Bojanowska-Moore in this context, he might have formed a different opinion as to the reliability of Dr. Yue's evidence as to whether she had informed Mrs. Cojocaru of the risks of VBAC. Further, a consideration of the note "wants VBAC" might also have led him to a different conclusion on this question.
[71] Since this credibility assessment was at the core of the informed-consent issue, it is my view that the finding that Dr. Yue failed to obtain an informed consent to a VBAC cannot stand.
Informed Consent – Induction
[72] The submissions on appeal concerning the induction of labour revolve around whether the use of prostaglandin gel increased the risk of uterine rupture and whether Dr. Yue fell below the requisite standard of care in failing to obtain Mrs. Cojocaru's informed consent to this procedure. Curiously, the trial judge did not find specifically that the use of prostaglandin gel to facilitate labour was a material contributing cause of the uterine rupture. However, this aspect of causation has not been raised as an issue on appeal and nothing therefore turns on the absence of such a finding.
[73] Dr. Yue admitted she did not discuss any risks of the use of prostaglandin gel with Mrs. Cojocaru. Her position was that the use of the gel to ripen the cervix to facilitate labour was endorsed by the protocol followed by the appellant Hospital and that the procedure was considered safe and in accordance with prevailing medical standards at the time.
[74] The trial judge concluded it was Dr. Yue's duty to inform Mrs. Cojocaru that it was not clear whether it was safe to use prostaglandin gel, and that she failed in that duty. He relied (at paras. 40-43) on a "policy statement" published in 1997 by the Maternal/Fetal Medicine Committee of the Society of Obstetricians and Gynecologists of Canada, which stated,
The safety of prostaglandin gel use in women with previous low segment sections has not been established and further research is needed. Prostaglandin preparations may be associated with very strong uterine contractions, and there are little data available on their use in women with uterine scars. At this time, if prostaglandin gel is to be used in the presence of a low segment Caesarean section scar, the woman must understand the limitation of knowledge in this area, and the immediate availability of physicians and resources to respond to an emergency must be provided.
[75] He rejected Dr. Yue's submission that the evidence did not establish any increased risk of rupture with prostaglandin use (at para. 53) and found that Dr. Yue failed to advise Mrs. Cojocaru that the use of prostaglandin increased the risk of uterine rupture.
[76] Dr. Yue takes issue with these findings. She points to expert medical evidence that appears to support her contention that she could reasonably have concluded at the time that the use of prostaglandin was safe and effective in a VBAC and could not be said to increase the risk of uterine rupture. Although she concedes there was evidence to the contrary, she submits the question was the subject of debate in the medical literature and that it was not her duty to review the debate with her patient. She submits that, as a "learned intermediary", it was her duty to review the medical evidence and to make a decision based on her training and experience as to whether the risk was material, and that is what she did.
[77] In my view, Dr. Yue is simply asking us to re-weigh the evidence and come to different conclusions. It is well-settled that we may not do so in the absence of a demonstrable error. There was evidence before the trial judge on which he could properly base his finding that the use of prostaglandin gel increased the risk of uterine rupture and I am not persuaded that he made any error in so doing that would justify our intervention.
[78] Dr. Yue submits, as well, that even if the use of prostaglandin might possibly cause a uterine rupture, a reasonable patient in Mrs. Cojocaru's position would necessarily accept any such risk if she was willing to accept the risk of uterine rupture generally. In other words, she contends the first risk is subsumed in the second and she submits the trial judge erred in accepting Mrs. Cojocaru's subjective opinion that she would have refused prostaglandin gel had she been told of the increased risk.
[79] Although the medical experts were not unanimous, there was expert medical opinion evidence that the use of prostaglandin gel could hyperstimulate the uterus and that its use therefore increased the risk of uterine rupture in VBAC patients. In addition to Mrs. Cojocaru's testimony that she would not have accepted any increased risk to her unborn child, no matter how small the risk, there was evidence that Romanian mothers in general are especially risk averse in such situations because of their particular culture and would hold a similar view. The trial judge was required to weigh the probable conduct of a reasonable mother in Mrs. Cojocaru's position, that is, as a Romanian mother. I am not persuaded that he erred in the manner suggested by Dr. Yue and I would not interfere with his conclusion that Dr. Yue failed in her duty to obtain Mrs. Cojocaru's informed consent to the insertion of prostaglandin gel to facilitate delivery.
Dr. Edris
[80] The trial judge concluded Dr. Edris fell below the requisite standard of care when, without first obtaining the concurrence of Dr. Steele, he proceeded with the induction of labour when he was faced with an unknown or uncertain orientation of Mrs. Cojocaru's uterine scar (at para. 172).
[81] Dr. Edris had no recollection of Mrs. Cojocaru. It was his evidence that it was his responsibility at the time to determine whether the patient was a suitable candidate for VBAC before inserting prostaglandin gel. He testified he normally told every patient coming in for induction that prostaglandin gel posed a potential risk of hyperstimulation of the uterus and that, if the baby was not tolerating the hyperstimulation, they would proceed to an emergency caesarean section. He agreed it would have been his responsibility to assess Mrs. Cojocaru, to obtain all relevant and necessary information about her case, and to communicate this information to Dr. Steele and, with him, to formulate a care plan. Neither Dr. Edris nor Dr. Steele had any recollection of such a conversation, although both agreed it would have taken place.
[82] There was medical opinion evidence that, since the use of prostaglandin gel increased the risk of uterine rupture in VBAC patients, Dr. Edris fell below the requisite standard of care in proceeding in the face of uncertainty as to the orientation of Mrs. Cojocaru's uterine scar.
[83] It was Dr. Edris's position that he reasonably believed Mrs. Cojocaru's uterine scar was a low transverse scar because that is what Mrs. Cojocaru told him. Mrs. Cojocaru denied this. Dr. Edris relied on his notes made during his attendance on Mrs. Cojocaru, in which he recorded "?LTCS according to patient". He said this meant Mrs. Cojocaru told him she had a previous "low transverse caesarean section" and that the question mark was intended merely to denote the absence of any operative report in her medical records. The trial judge did not accept that explanation. He concluded that the notation indicated uncertainty – that Dr. Edris questioned whether Mrs. Cojocaru's previous caesarean section involved a low transverse scar.
[84] On appeal, Dr. Edris concedes the trial judge was entitled to disbelieve his evidence about the note but contends he erred in failing "to recall and understand it". I cannot agree. The trial judge set out Dr. Edris's evidence on this point, discussed it, and gave reasons for rejecting it (at para. 163). I would not accede to this submission.
[85] However, Dr. Edris also contends that no causal connection was shown between this breach of duty and the damage suffered by the plaintiffs. He submits that, since Mrs. Cojocaru actually had a low transverse uterine scar, his uncertainty about the scar's orientation was irrelevant. I agree. Had Dr. Edris known the true facts, he would have proceeded as he did. Thus, his proceeding in the face of uncertainty did not change the ultimate result and it cannot be said that, but for his breach of duty, the respondents' damage would not have occurred.
[86] It follows, in my view, that the trial judge erred in assigning liability to Dr. Edris on this basis.
Dr. Steele
[87] After referring to case law for the proposition that expert evidence of the standard of care is unnecessary when common sense dictates what the standard should be, the trial judge found liability against Dr. Steele in the following passages:
[170] ... Dr. Steele knew nothing about Ms. Cojocaru other than the fact that she was a VBAC patient who was being induced. He sought no information from Dr. Yue and he made no effort at any time to come and assess her. When he was called at 18:00 hours with news that his patient, whom he knew or should have known had not seen a physician at all during the day, was having problems with her pain levels, he should have come to assess her. Had he done so, he would have realized that she was having continuous pain and realized that she was facing an impending rupture. Instead, he left the hospital, without checking on her. With respect, this simply cannot be in keeping with the standard expected of a reasonably competent obstetrician who is in charge of a high risk patient.
. . .
[173] I conclude that Dr. Steele breached his duty of care and the standard of care expected of him when he failed to attend to a high risk patient in his care. He should have assessed his patient. When advised that his patient, a high risk patient, was experiencing trouble such that a nurse placed a call to him, he did not attend. Rather, he left the hospital.
[Emphasis in original.]
[88] Dr. Steele submits the trial judge erred in concluding his failure to personally assess Mrs. Cojocaru was a breach of his duty of care. He says his conduct was consistent with the prevailing professional practice – that while he was absent on rounds at the other hospitals he was entitled to rely on Dr. Edris, a third-year obstetrical resident, and on the experienced obstetrical nursing staff at the hospital to care for Mrs. Cojocaru. He notes that no medical expert testified that his doing so fell below the requisite standard of care and contends the trial judge was wrong to rely on "common sense" to find a breach of duty. Moreover, he contends the trial judge misapprehended the evidence in concluding he left the hospital after he had spoken with Nurse Bellini. In fact, he says, the evidence showed that he was on his way to Mount Saint Joseph Hospital when he received that call.
[89] I agree the trial judge misapprehended the evidence about when Dr. Steele left the appellant Hospital. The only evidence on the point, which was neither challenged nor contradicted, was Dr. Steele's recollection that he was in his car on his way to Mount Saint Joseph Hospital when he spoke with Nurse Bellini on his mobile phone. I do not find it necessary to decide whether the trial judge erred in concluding that Dr. Steele's adherence to the prevailing standard of on-call specialists amounted to a breach of his duty of care to Mrs. Cojocaru, since I also agree with Dr. Steele's second submission, which is that no causal connection was established between his failure to attend when he was called by Nurse Bellini and the ultimate outcome, a submission made at trial that was entirely overlooked by the trial judge.
[90] The evidence, unchallenged and uncontradicted, was that the only anaesthetist and OR team at the appellant Hospital were engaged between 18:00 and 18:30 in performing an emergency caesarean section; that the decision to call in a second anaesthetist was for the anaesthetist at the hospital to make; and that, had the on-duty anaesthetist called for them, it would have taken 20 to 30 minutes for a second anaesthetist and OR team to be assembled to perform an emergency caesarean section on Mrs. Cojocaru. We do not know what the anaesthetist would have done had he been asked to call for help, since he did not testify. It is not disputed that Nurse Bellini's telephone conversation with Dr. Steele occurred at about 18:05. Thus, if Dr. Steele had attended on Mrs. Cojocaru at that time or even at 18:00 when Nurse Voerwold placed her call to him, as the trial judge found he ought to have done, and had he called for a "stat" caesarean section after examining her, and had the anaesthetist called for a second anaesthetist and OR team, and had they assembled within 20 to 30 minutes of being called, the surgery could not have been commenced before about 18:30 at the earliest. In fact, Dr. Green, whose performance was not criticized in any way, commenced the caesarean section at 18:30. It follows that had Dr. Steele done what the trial judge faulted him for not doing, the tragic outcome would have been no different. The suggestion of counsel for the respondents that Dr. Steele and the staff would have found some way to perform the caesarean without an anaesthetist and an OR team is pure speculation and has no support in the evidence.
[91] Accordingly, the finding of liability against Dr. Steele cannot be supported.
Nurse Bellini and the Appellant Hospital
[92] The trial judge found that Nurse Bellini was not in continuous attendance on Mrs. Cojocaru after 17:45, as she ought to have been, and that she missed signs of an impending uterine rupture as a result. He found, as well, that she failed to communicate Mrs. Cojocaru's concerns to Dr. Steele and to investigate what he found were Mrs. Cojocaru's repeated requests for a caesarean section (at para. 211). Further, he concluded, had she noticed and reported the signs of impending rupture, as she ought to have done, Dr. Green would have been able to act sooner and Dr. Steele would have been contacted sooner, "allowing for the earlier delivery of Eric Cojocaru, therefore preventing his catastrophic injury" (at para. 206).
[93] Although Nurse Bellini and the appellant Hospital argued strenuously against these findings at the trial, they do not challenge the judge's findings of fact on appeal. Rather, it is their position that he erred in failing to consider their causation defence and that, had he addressed it, he would have been compelled to dismiss the claim against them because the uncontradicted evidence at trial established that even if the responsible physicians had been notified earlier of Mrs. Cojocaru's condition based on the observations of the nursing staff and Mrs. Cojocaru's family, they would not have called a "stat" caesarean section and, even if they had, that Mrs. Cojocaru could not have received her caesarean section any sooner than she did.
[94] Dr. Steele testified that, had Nurse Bellini passed on to him the information the trial judge found she failed to pass on to him, he would not have been concerned about Mrs. Cojocaru's condition. He also testified that, had he reviewed the fetal heart strip for the period before Mrs. Cojocaru detached the monitor and went to the bathroom (18:06), he would have found it "reassuring". He said had he been told, in addition, that Mrs. Cojocaru was experiencing abdominal pain between and with contractions, he would not have called a "stat" caesarean section. Further, he said if he had been told Mrs. Cojocaru wanted a caesarean section, he would have discussed it with her and if she wanted to discontinue the trial of labour, he would have placed her in line for the next available slot in the caesarean section roster, which would likely have taken an hour or two. Dr. Steele's evidence in respect of these matters was not challenged or contradicted.
[95] Accordingly, in my view, Nurse Bellini's failure to communicate information to Dr. Steele, as found by the trial judge, did not affect the result. Had she done what the trial judge found she failed to do, Dr. Steele would not have called for an emergency caesarean section at that time.
[96] The trial judge found, however, that had Nurse Bellini reported the changes in Mrs. Cojocaru's condition earlier, as she should have, it is likely that Dr. Green would have been called in no later than 18:00 and that, had he been called in at that time, "the baby likely would have been delivered by 18:20, well before brain damage set in" (at para. 220).
[97] However, Dr. Green's reasons for calling for an emergency caesarean section were that he found bright red blood emanating from Mrs. Cojocaru's vagina on his examination of her at 18:22 and that the fetal heart rate remained depressed at that time. Had he attended on Mrs. Cojocaru at or before 18:00, as the plaintiffs contended he would have if Nurse Bellini had communicated to him the information she should have communicated to Dr. Steele, those signs would not have been present. There was no evidence that he would have called for an emergency caesarean on his own initiative on the basis of the signs and symptoms that were apparent at 18:00. And, as I have noted, Dr. Steele, who was responsible for the direction and supervision of Dr. Edris, testified he would not have called for an emergency caesarean section on the basis of the signs and symptoms found by the trial judge to be apparent at 18:00.
[98] The respondents rely on the trial judge's finding that Mrs. Cojocaru's family members noticed frank or fresh bleeding when she got up to go to the bathroom. They submit that fact was not communicated to Dr. Steele and his testimony that he would not have called for an emergency caesarean section on the basis of the information that should have been given to him by Nurse Bellini must be considered in that context. However, it is not disputed that Mrs. Cojocaru got up to go to the bathroom at 18:06, when the fetal heart monitor was disconnected, and that Nurse Bellini was, at that time, on the telephone speaking with Dr. Steele. Thus, Nurse Bellini could not have communicated that information to Dr. Steele in that conversation. She could have noticed the fresh blood only when she returned to Mrs. Cojocaru's room, which is when the critical events began to unfold rapidly.
[99] As I have already noted, no anaesthetist and no OR team were available in the Hospital between 18:00 and 18:30 to perform a caesarean section on Mrs. Cojocaru and none could have been assembled in time to avert the tragic result.
[100] Accordingly, the finding of liability against Nurse Bellini and the appellant Hospital must be set aside.
Duty of Care to an Unborn Fetus
[101] The appellants submitted, on the basis of Paxton v. Ramji, 2008 ONCA 697, 92 O.R. (3d) 401, that they owed no duty of care to an unborn fetus. In Paxton, the Court held that a physician owes no duty to a future child, whether conceived or not, because there is no sufficient proximity between the physician and the future child that gives rise to a prima facie duty of care and, even if there was, policy reasons negate such a duty.
[102] The trial judge rejected this submission (at paras. 223-24). He relied on Ediger v. Johnston, 2009 BCSC 386 at para. 213, 65 C.C.L.T. (3d) 1, where, after an extensive review of the relevant case law, H.J. Holmes J. said,
[213] For these reasons, I am not persuaded that Paxton v. Ramji or other developments in the jurisprudence require reconsideration of the law in this province that a physician's duty of care to a pregnant woman encompasses her fetus. Even were this now to be considered a novel proposition in law, requiring an Anns analysis, I am unable to agree with Mr. Lepp that the proximity requirement is unmet, or that policy considerations weigh strongly against recognition of such a duty. Although policy concerns run high, where there is recognition of what – in my view, erroneously – may appear to be a form of legal status for the fetus, those concerns are well-protected by the legal principles by which a corresponding right to sue the physician arises only after live birth of the fetus, and which, before the live birth, grant the mother full responsibilities and rights to determine the medical care of the fetus without legal liability at any time.
[103] On appeal, the appellants contend the trial judge erred in refusing to follow the reasoning and the conclusion in Paxton.
[104] In Paxton, the infant plaintiff had not been conceived when the defendant physician prescribed drugs to the plaintiff's mother which later resulted in injury to the fetus. In my view, Madam Justice Holmes was correct to conclude Paxton had no application in Ediger, where the infant plaintiff suffered injury during his birth, and the trial judge did not err in following her decision. Her reasoning was validated in Liebig v. Guelph General Hospital, 2010 ONCA 450, 321 D.L.R. (4th) 378, where Paxton was distinguished on the same basis and reference was made, at para. 7, to Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925 at para. 21, 152 D.L.R. (4th) 193, for the proposition that "a child may sue in tort for injury caused before birth", although the legal status to sue arises "only when the child is born" and "damages are assessed only as at the date of birth."
[105] Accordingly, I would not give effect to this submission.
[106] For those reasons, I would allow the appeals of Dr. Steele, Dr. Edris, the Hospital, and Nurse Bellini and I would set aside the judgments and dismiss the actions against them. As well, I would allow the appeal of Dr. Yue but only to the extent that I would reduce the award of damages. However, since preparing these reasons for judgment, I have read the reasons of my colleagues and, as I am in dissent and there will be a new trial, I think it best not to set out my reasons concerning the award lest my comments might complicate the new trial.
"The Honourable Mr. Justice K. Smith"
Reasons for Judgment of the Honourable Madam Justice Levine and the Honourable Madam Justice Kirkpatrick:
[107] We have had the privilege of reading the draft reasons for judgment of our colleague, Mr. Justice Smith, in this most troubling appeal.
[108] The trial judge's reasons for judgment raise difficult issues of principle that confront the basis for appellate review.
[109] This is not an ordinary case of "insufficient reasons", as dealt with by the Supreme Court of Canada in a series of recent cases, represented by R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, and R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 (applied to civil cases in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41). On their face, the reasons for judgment of the trial judge, if accepted as such, are amenable to appellate review and thus satisfy what has emerged as the functional test for sufficiency of reasons. On that basis, there is an urge to deal with these appeals on their merits and seek to resolve the issues of law and fact raised by the appellants' arguments, as Mr. Justice Smith has done so thoroughly.
[110] The alternative – rejecting the reasons for judgment – is to impose upon the parties to this complex litigation the financial and emotional expense of remounting their cases at a new trial.
[111] Despite this hardship for the parties, we are, with great respect, unable to agree with our colleague's fundamental conclusion that the trial judge independently and impartially considered the law and the evidence and arrived at his own conclusions on the complex issues before him. We conclude that the reasons for judgment must be rejected because they cannot be taken to represent the trial judge's analysis of the issues or the reasoning for his conclusions.
[112] On our analysis, the reasons for judgment do not meet the functional requirement of public accountability. They cannot satisfy the public that justice has been done, and would, if accepted, undermine support for the legitimacy of the justice system. On those bases, the reasons do not allow for meaningful appellate review.
[113] When one closely examines the trial judge's published reasons, laid side-by-side with the respondents' written submissions, one is left with the indelible impression that the trial judge could not have applied his own reasoning process to the case. This impression is most acute in that portion of the reasons that address liability.
[114] It is true, as our colleague has noted, that 47 of the 368 paragraphs of the reasons are in the judge's own words, or substantially his own words. The reasons on liability run to 222 paragraphs, 30 of which are in the judge's own words. However, most of those paragraphs (20) address uncontroversial facts, or are introductory in nature, or simply summarize the respondents' submissions. No independent reasoning was required to be applied in those paragraphs and none is evident.
[115] Rather than exhibiting any sign that the trial judge grappled with the difficult issues confronting him, one is left with page after page (84) of wholesale, uncritical reproduction of the respondents' written submissions.
[116] This most unfortunate circumstance renders this case factually distinguishable from most of the cases referred to by our colleague that have considered the issue.
[117] Sorger v. Bank of Nova Scotia, (1998) 39 O.R. (3d) 1, 160 D.L.R. (4th) 66 (C.A.), bears some resemblance to the facts of this case, as described by Mr. Justice Smith at para. 14 of his reasons. The Ontario Court of Appeal in that case concluded that a "reasonable and informed observer" would conclude that the appellants had not received a fair consideration of their case. So too, in our opinion, would a similarly placed person in this case. An informed and reasonable observer could not help but be astonished by the virtual absence of consideration of the appellants' arguments and the evidence adduced in support of their positions.
[118] Unlike Canada (Attorney General) v. Ni-Met Resources Inc. (2005), 74 O.R. (3d) 641, 195 C.C.C. (3d) 1 (C.A.), the case at bar is not one in which the legal issues before the judge were so "clearly defined and argued by the parties that the purpose of giving reasons will be met if the judge simply adopts the submissions advanced by one of them" (at para. 26). Rather, the decision of the trial judge turned on the credibility of witnesses and several contentious findings of fact where the evidence presented by each party at trial was in direct conflict. This conflict went unacknowledged by the trial judge, a fact that distinguishes this case from R. v. Dastous (2004), 181 O.A.C. 398, 60 W.C.B. (2d) 335, where the Ontario Court of Appeal noted that the trial judge had acknowledged conflicts in the evidence before adopting one party's submissions, but went on to find that the reasons were insufficient in any event.
[119] Moreover, since the trial judge failed entirely to deal with a cogent and uncontradicted defence argument on the issue of causation submitted by the appellants at trial, it cannot be said that the trial judge discharged his burden to inform the losing parties of the reason for their loss.
[120] In the case at bar, the trial judge did not attribute any of the passages in his reasons to the respondents' submissions. In the majority of the cases referred to by our colleague, in which the trial judge adopted or reproduced a party's submissions, the trial judge acknowledged that the analysis was taken from the submissions of one of the parties: see R. v. Gaudet (1998), 40 O.R. (3d) 1, 125 C.C.C. (3d) 17 (C.A.); Sorger; Dastous; Ni-Met Resources Inc.; and R. v. Kendall (2005), 75 O.R. (3d) 565, 198 C.C.C. (3d) 205 (C.A.). In only one case, Janssen-Ortho Inc. v. Apotex Inc., 2009 FCA 212, 392 N.R. 71, did the trial judge reproduce submissions without attribution. In that case, Nadon J.A. commented that:
[77] It would, in my respectful view, be advisable for a judge who intends to adopt a substantial part of a party's written submissions to say so explicitly. Where a judge is confronted with a complex factual case such as the one before us, the adoption of a party's written submissions without an acknowledgment may lead to the impression that the judge has not done the work which he is called upon to do, namely, to examine all of the evidence before him and to make the appropriate findings.
[121] In our view, the concern articulated by Nadon J.A. that "the adoption of a party's written submissions without an acknowledgment may lead to the impression that the judge has not done the work which he is called upon to do" has materialized in this case, as a reasonable and informed observer could not be persuaded that the trial judge examined all of the evidence before him and made appropriate findings.
[122] The Supreme Court of Canada described the function of public accountability of reasons for judgment in R.E.M. (at para. 11(2)):
2. Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done. Thus, it has been said that the main object of a judgment "is not only to do but to seem to do justice": Lord Macmillan, "The Writing of Judgments" (1948), 26 Can. Bar Rev. 491, at p. 491.
[123] The Supreme Court expressed another reason for judges to articulate their reasoning: to help to ensure fair and accurate decision making, instantiating the rule of law and supporting the legitimacy of the judicial system. The Chief Justice said (at para. 12):
In addition, reasons help ensure fair and accurate decision making; the task of articulating the reasons directs the judge's attention to the salient issues and lessens the possibility of overlooking or under-emphasizing important points of fact or law. As one judge has said: "Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper" (United States v. Forness, 125 F.2d 928 (2d Cir. 1942), at p. 942). Finally, reasons are a fundamental means of developing the law uniformly, by providing guidance to future courts in accordance with the principle of stare decisis. Thus, the observation in H. Broom's Constitutional Law Viewed in Relation to Common Law, and Exemplified by Cases (2nd ed. 1885), at pp. 147-48: "A public statement of the reasons for a judgment is due to the suitors and to the community at large — is essential to the establishment of fixed intelligible rules, and for the development of law as a science." In all these ways, reasons instantiate the rule of law and support the legitimacy of the judicial system.
[Emphasis added.]
[124] The requirement that reasons for judgment meet the requirement of public accountability was at the heart of the decision in R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, (cited by Mr. Justice Smith (at paras. 8-10)), where the majority of the Supreme Court of Canada held that written reasons for judgment in a criminal case released more than 11 months after the verdict was rendered should not have been considered on appeal. Justice Charron, for the majority, wrote (at para. 2):
In the particular circumstances of this case, I conclude that a reasonable person would apprehend that the trial judge's written reasons, delivered more than 11 months after the verdict was rendered, did not reflect the real basis for the convictions. Without this requisite link between the verdict and the reasoning that led to that verdict, the reasons provide no opportunity for meaningful appellate review of the correctness of the decision. Hence, the written reasons should not have been considered on appeal.
[Emphasis added.]
[125] The conclusion that the written reasons did not provide an opportunity for meaningful appellate review of the decision did not relate to the words themselves, but to the circumstances of their creation. In explaining why a reasonable person would apprehend that the written reasons did not reflect the real basis for the convictions, Justice Charron discussed the concepts of judicial integrity and impartiality. These concepts underlie the requirement for public accountability of judicial decisions. Justice Charron wrote (at paras. 19-21):
I am not suggesting that the necessary link between the verdict and the reasons that led to it will be broken whenever there is a delay in rendering reasons after the announcement of the verdict. Trial judges benefit from a presumption of integrity, which in turn encompasses the notion of impartiality. (I take it from reading their reasons as a whole that this is what the majority of the Court of Appeal had in mind when they referred to the presumption of "regularity", the latter applying rather to procedural or administrative matters.) Hence, the reasons proffered by the trial judge in support of his decision are presumed to reflect the reasoning that led him to his decision.
The notion of judicial integrity was discussed at length by this Court in R. v. S. (R.D.), [1997] 3 S.C.R. 484. It encompasses the expectation that judges will strive to overcome personal bias and partiality and carry out the oath of their office to the best of their ability. Impartiality was described as follows by Cory J. (at paras. 104-5):
. . . impartiality can be described – perhaps somewhat inexactly – as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.
In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues.
The judge's impartiality is essential to achieve trial fairness.
As reiterated in S. (R.D.), fairness and impartiality must not only be subjectively present but must also be objectively demonstrated to the informed and reasonable observer. Even though there is a presumption that judges will carry out the duties they have sworn to uphold, the presumption can be displaced. The onus is therefore on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons constitute an after-the-fact justification of the verdict rather than an articulation of the reasoning that led to it.
[Emphasis added.]
[126] In a recently published book on legal writing, Writing for the Court (Toronto: Carswell, 2010) at 148, James C. Raymond discussed the importance to the rule of law and respect for the judiciary of "writ[ing] judgments that are transparent and accessible to the broadest possible segment of the population – not just to members of the bench and bar." He was criticizing "turgid legal writing", but his rationale for transparent and accessible written judgments applies equally, in our opinion, to the importance of a judge's reasons demonstrating to a reasonable person that the judge has independently and impartially grappled with the issues presented by the case, and that "the reasons reflect the reasoning that led him to his decision" (Teskey at para. 19, quoted above). Professor Raymond said (at 148-149):
Turgid legal writing is not just a violation of stylistic etiquette, an affront to the sensibilities of literati. It is far more serious than that. It undermines respect for the judiciary. Nowhere is the rule of law safe unless lawyers and judges recognize their responsibility to cultivate support for it with clear writing and transparent reasoning. If they write only for one another, if they effectively exclude the public from their deliberations, they alienate the people they should serve and undermine their own precarious authority. If judges retreat behind esoteric language, if their reasons are poorly organized or buried beneath irrelevant information, if their judgments are blatantly partisan, they cannot expect to be understood by the press or respected by the public.
The credibility of the courts cannot be casually presumed. It is a trust that has to be continually earned in every judgment at every level, a trust that can be undermined by the courts themselves.
Given the uncertainty of litigation, it is the judge's responsibility not only to judge wisely, but also to make the judgment seem as reasonable and reliable as possible. Judgment writing itself must be judged on the basis of whether the language and the reasoning are transparent and persuasive, even if it can never achieve absolute certainty. Every judgment either contributes to or undermines the confidence the public can place in the institution itself.
[127] Consideration of these principles in the context of the composition of the trial judge's reasons for judgment has convinced us that the reasons do not meet the functional requirement of public accountability, and as such, are not amenable to meaningful appellate review of their correctness. The form of the reasons, substantially a recitation of the respondents' submissions, is in itself "cogent evidence" displacing the presumption of judicial integrity, which encompasses impartiality. We have concluded that a reasonable and informed observer could not be persuaded that the trial judge independently and impartially examined all of the evidence and arrived at his own conclusions. As noted in Teskey, impartiality is necessary to trial fairness. None of the parties to this litigation was fairly treated by the failure of the trial judge to properly grapple with this case. Neither they nor members of the public can be satisfied that justice has been done. The reasons are not transparent and persuasive, and their acceptance by this Court would risk undermining the confidence of the public in the administration of justice.
[128] As difficult as it will be for the parties to remount this trial, we have reluctantly concluded that there is no principled basis to deal with these appeals on their merits because the trial judge's reasons for judgment cannot be considered to represent his reasons, do not meet the functional requirement of public accountability, and do not allow for meaningful appellate review.
[129] It follows that we would allow the appeals and order a new trial. We would order that the costs of the first trial, this appeal, and the second trial be in the cause.
"The Honourable Madam Justice Levine"
"The Honourable Madam Justice Kirkpatrick"