Cojocaru v. British Columbia Women's Hospital and Health Center et al., 2011 BCCA 192

• Judge: Levine, K. Smith and Kirkpatrick, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 14, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 192;(2011), 303 B.C.A.C. 278 (CA)

Cojocaru v. Women's Hospital (2011), 303 B.C.A.C. 278 (CA);

    512 W.A.C. 278

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. AP.051

Eric Victor Cojocaru, an infant by his Guardian Ad Litem, Monica Cojocaru, and Monica Cojocaru (respondents/appellants on cross-appeal/plaintiffs) v. British Columbia Women's Hospital and Health Center and F. Bellini (appellants/respondents on cross-appeal/defendants) and 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 and John Doe (respondents/respondents on cross-appeal/defendants)

(CA037090)

Eric Victor Cojocaru, an infant by his Guardian Ad Litem, Monica Cojocaru, and Monica Cojocaru (respondents/appellants on cross-appeal/plaintiffs) v. Dr. Dale R. Steele, Dr. Jenise Yue and Dr. Fawaz Edris (appellants/respondents on cross-appeal/defendants) and 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/defendants)

(CA037107; 2011 BCCA 192)

Indexed As: Cojocaru v. British Columbia Women's Hospital and Health Center et al.

British Columbia Court of Appeal

Levine, K. Smith and Kirkpatrick, JJ.A.

April 14, 2011.

Summary:

The plaintiff mother was a high risk pregnancy patient. While virtually unsupervised, her uterus ruptured and her unborn plaintiff son suffered an asphyxial insult resulting in permanent brain damage. The plaintiffs brought a medical negligence action against the defendants.

The British Columbia Supreme Court, in a judgment reported [2009] B.C.T.C. Uned. 494 found all defendants liable after a 30 day trial. The court's reasons for judgment consisted largely of a reproduction, without acknowledgment, of the plaintiffs' written closing submissions. Two appeals were brought by the defendants. At issue was whether the trial judge erred in delivering reasons for judgment that largely reproduced the successful parties' written closing submissions.

The British Columbia Court of Appeal, K. Smith, J.A., dissenting, allowed the appeals, quashed the judgment and ordered a new trial. The court was not satisfied that the trial judge independently and impartially considered the law and the evidence to arrive at his own conclusions on the complex issues before him.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - A trial judge allowed the plaintiffs' medical negligence action - His 368 paragraph judgment reproduced, without acknowledgment, 321 paragraphs of the plaintiffs' written closing submissions - The British Columbia Court of Appeal allowed the defendants' appeals and ordered a new trial - The court was not satisfied that the trial judge independently and impartially considered the law and the evidence to arrive at his own conclusions on the complex issues before him - The reasons did not meet the functional requirement of public accountability - Although 47 of the 368 paragraphs were in the judge's own words, most of those paragraphs addressed uncontroversial facts, were introductory in nature, or simply summarized the plaintiffs' submissions - No independent reasoning was evident - The court stated that "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' ... Moreover, since the trial judge failed entirely to deal with a cogent and uncontradicted defence argument ... [causation], it cannot be said that the trial judge discharged his burden to inform the losing parties of the reason for their loss. ... the concern ... 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. ... The form of the reasons, substantially a recitation of the [plaintiffs'] submissions, is in itself 'cogent evidence' displacing the presumption of judicial integrity, which encompasses impartiality. ... impartiality is necessary to trial fairness." - See paragraphs 107 to 127.

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - [See Courts - Topic 583 ].

Cases Noticed:

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 7].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 151 D.L.R.(4th) 193, refd to. [para. 29].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 49].

Paxton v. Ramji (2008), 242 O.A.C. 34; 92 O.R.(3d) 401; 2008 ONCA 697, refd to. [para. 101].

Ediger v. Johnston et al., [2009] B.C.T.C. Uned. 386; 65 C.C.L.T.(3d) 1; 2009 BCSC 386, refd to. [para. 102].

Liebig et al. v. Guelph General Hospital et al. (2010), 263 O.A.C. 180; 321 D.L.R.(4th) 378; 2010 ONCA 450, refd to. [para. 104].

Child and Family Services of Winnipeg Northwest v. D.F.G., [1997] 3 S.C.R. 925; 219 N.R. 241; 121 Man.R.(2d) 241; 158 W.A.C. 241; 152 D.L.R.(4th) 193, refd to. [para. 104].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 109].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 109].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 109].

Sorger et al. v. Bank of Nova Scotia et al. (1998), 109 O.A.C. 130; 39 O.R.(3d) 1; 160 D.L.R.(4th) 66 (C.A.), refd to. [para. 117].

Canada (Attorney General) v. Ni-Met Resources Inc. (2005), 196 O.A.C. 85; 74 O.R.(3d) 641; 195 C.C.C.(3d) 1 (C.A.), dist. [para. 118].

R. v. Dastous (R.) (2004), 181 O.A.C. 398; 60 W.C.B.(2d) 335 (C.A.), dist. [para. 118].

R. v. Gaudet (V.J.) et al. (1998), 109 O.A.C. 381; 40 O.R.(3d) 1; 125 C.C.C.(3d) 17 (C.A.), refd to. [para. 120].

R. v. Kendall (S.) (2005), 200 O.A.C. 18; 75 O.R.(3d) 565; 198 C.C.C.(3d) 205 (C.A.), refd to. [para. 120].

Janssen-Ortho Inc. et al. v. Apotex Inc. et al. (2009), 392 N.R. 71; 2009 FCA 212, refd to. [para. 120].

R. v. Teskey (L.M.), [2007] 2 S.C.R. 267; 364 N.R. 164; 412 A.R. 361; 404 W.A.C. 361; 2007 SCC 25, refd to. [para. 124].

Authors and Works Noticed:

Canadian Judicial Council, Ethical Principles for Judges (2004), p. 30 [para. 9].

George, Joyce G., Judicial Opinion Writing Handbook (2007), pp. 713 to 714 [para. 11].

Raymond, James C., Writing for the Court (2010), pp. 148 to 149 [para. 126].

Counsel:

P.T. McGivern, A. Howell, D. Shugarman and L.C. Galvin, for Eric Victor Cojocaru and Monica Cojocaru, respondents/appellants on cross-appeal;

C.L. Woods, Q.C., and A. Howden-Duke, for the British Columbia Women's Hospital and Health Center and F. Bellini, appellants/respondents on cross-appeal;

J.M. Lepp, Q.C., and M.K. Gill, 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 and John Doe, respondents/respondents on cross-appeal.

These appeals were heard at Vancouver, British Columbia, on May 20-21, 2010, before Levine, K. Smith and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal.

On April 14, 2011, the judgment of the Court was delivered and the following opinions were filed:

K. Smith, J.A., dissenting - see paragraphs 1 to 106;

Levine and Kirkpatrick, JJ.A. - see paragraphs 107 to 129.