Cojocaru v. British Columbia Women's Hospital and Health Center et al., (2013) 336 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 24, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 336 B.C.A.C. 1 (SCC);2013 SCC 30;[2013] 2 SCR 357;[2013] ACS no 30;357 DLR (4th) 585;[2013] SCJ No 30 (QL)

Cojocaru v. Women's Hospital (2013), 336 B.C.A.C. 1 (SCC);

    574 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] B.C.A.C. TBEd. MY.053

Eric Victor Cojocaru, an infant by his Guardian Ad Litem, Monica Cojocaru and Monica Cojocaru (appellants/respondents on cross-appeal) v. British Columbia Women's Hospital and Health Centre and F. Bellini (respondents/appellants on cross-appeal) and Dale R. Steele, Jenise Yue and Fawaz Edris (respondents)

Eric Victor Cojocaru, an infant by his Guardian Ad Litem, Monica Cojocaru and Monica Cojocaru (appellants/respondents on cross-appeal) v. Dale R. Steele, Jenise Yue and Fawaz Edris (respondents) and British Columbia Women's Hospital and Health Centre and F. Bellini (respondents/appellants on cross-appeal) and Attorney General of Ontario, Trial Lawyers Association of British Columbia and Canadian Bar Association (interveners)

(34304; 2013 SCC 30; 2013 CSC 30)

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

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

May 24, 2013.

Summary:

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

The British Columbia Supreme Court, in a judgment reported [2009] B.C.T.C. Uned. 494 found all five defendants liable and awarded damages of $4 million. The trial judge's reasons for judgment consisted largely of a reproduction, without acknowledgment, of the plaintiffs' written closing submissions. The trial judge did not accept all of the plaintiffs' submissions, discussed a number of issues, stated his final conclusions in his own words and varied the quantum of damages requested by the plaintiffs. 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, in a judgment reported (2011), 303 B.C.A.C. 278; 512 W.A.C. 278, 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. The plaintiffs appealed. Two of the defendants (nurse and hospital) cross-appealed. At issue was whether the trial judge's decision should have been set aside because it copied large portions of the plaintiffs' submissions and, if not, did the trial judge's decision disclose palpable and overriding errors of fact or legal error.

The Supreme Court of Canada allowed the appeal and cross-appeal. The court stated that "the incorporation of large portions of the plaintiffs' submissions in the reasons in this case does not justify overturning the trial judge's decision. The presumption of judicial integrity and impartiality has not been displaced. On the contrary, the reasons demonstrate that the trial judge addressed his mind to the issues he had to decide. This said, aspects of the reasons disclose palpable and overriding error and must be set aside". The plaintiffs were entitled to damages as assessed by the trial judge against one defendant (Dr. Yue), but the action as against the remaining four defendants (two doctors, nurse and hospital) was dismissed.

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 ordered a new trial, because it was not satisfied that the judge independently and impartially considered the law and the evidence to arrive at his own conclusions on the complex issues before him - The Supreme Court of Canada disagreed - This was a procedural complaint not about the sufficiency of the judge's reasons, but the fairness of the process - Judicial integrity and impartiality were presumed - Judicial copying was "a longstanding and accepted practice" - The court stated that "extensive copying and failure to attribute outside sources are in most situations practices to be discouraged. But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity. This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision" - The court stated that "the incorporation of large portions of the plaintiffs' submissions in the reasons in this case does not justify overturning the trial judge's decision. The presumption of judicial integrity and impartiality has not been displaced. On the contrary, the reasons demonstrate that the trial judge addressed his mind to the issues he had to decide. ... as a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words her conclusions on the facts and the law. ... The point remains, however, that a judge's failure to adhere to best practices does not, without more, permit the judge's decision to be overturned on appeal." - In summary, "despite the judge's extensive adoption of the plaintiffs' argument, the evidence does not show that he failed to put his mind to the critical issues and decide them independently and impartially. The reasons, read as a whole, show that the trial judge considered the issues and the arguments on both sides, and came to a conclusion on each of the main issues" - See paragraphs 10 to 76.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The Supreme Court of Canada stated that "[j]udicial decisions can be set aside either for substantive errors or procedural errors. A complaint that a judge's decision should be set aside because the reasons for judgment incorporate materials from other sources is essentially a procedural complaint. It goes not to whether the decision is correct on the merits having regard to the evidence and the law, but to whether the process by which it was reached is procedurally fair. A fair process requires not only that the parties be allowed to submit evidence and arguments to the judge, but that the judge decide the issues independently and impartially as the judge is sworn to do. Extensive incorporation may raise concerns that the judge has not done so. To determine whether a defect relating to reasons for judgment is evidence of procedural error negating a fair process, the alleged deficiency must be viewed objectively, through the eyes of a reasonable observer, having regard to all relevant matters ... Reasons need not be extensive or cover every aspect of the judge's reasoning; in some cases, the basis of the reasons may be found in the record. The question is whether a reasonable person would conclude that the alleged deficiency, taking into account all relevant circumstances, is evidence that the decision-making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the arguments and the issues, and decide them impartially and independently." - See paragraphs 12 to 13.

Courts - Topic 590

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

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - [See Medicine - Topic 4241.2 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence - Causation - The plaintiff mother was a high risk pregnancy hospital patient - While virtually unsupervised, her uterus ruptured and her unborn plaintiff son suffered an asphyxial insult resulting in permanent brain damage (cerebral palsy) - The trial judge found five defendants (three doctors, a nurse and the hospital) negligent and liable for approximately $4 million in damages - The Supreme Court of Canada agreed with the trial judge that one doctor (prenatal care obstetrician) was negligent in failing to obtain the mother's informed consent to a vaginal birth after previously having a caesarean section - The significance of the risk of a uterine rupture was not sufficiently conveyed to the mother - In finding that doctor negligent in failing to verify the orientation of the caesarean scar, the trial judge erred in finding a causal connection between that alleged negligence and the injury suffered - The trial judge also erred in finding that doctor negligent for failing to obtain the mother's consent to induction, as he failed to conduct a separate causation analysis and the evidence did not establish a causal connection between the induction and the uterine rupture - The trial judge erred in finding the second doctor negligent for inducing labour without ascertaining the orientation of the scar, as there was no causal connection between the alleged negligence and the injury - The trial judge erred in finding the third doctor (on-call obstetrician) negligent based on a misapprehension of the evidence - Finally, the trial judge erred in finding the nurse, and therefore the hospital, negligent for failing to observe and respond faster to signs of uterine rupture - The evidence established that there was no causal connection between that alleged negligence and the injury, where the son could not have been delivered in time to avoid permanent brain damage - The court affirmed the damage award as supported by the evidence - See paragraphs 77 to 122.

Medicine - Topic 4248

Liability of practitioners - Negligence or fault - Failure to inform or disclose - [See Medicine - Topic 4241.2 ].

Medicine - Topic 4252.2

Liability of practitioners - Negligence or fault - Obstetrical or gynaecological care - [See Medicine - Topic 4241.2 ].

Cases Noticed:

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. 13].

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, refd to. [para. 20].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 20].

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. 24].

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. 25].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 25].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 25].

English v. Emery Reimbold & Strick Ltd., [2002] EWCA Civ 605; [2002] 3 All E.R. 385 (C.A.), refd to. [para. 38].

Meadowstone (Derbyshire) Ltd. v. Kirk, 2006 WL 690588 (U.L. Emp. App. Trib.), refd to. [para. 38].

Shin v. Kung, [2004] HKCA 205, refd to. [para. 39].

James v. Surf Road Nominees Pty. Ltd., [2004] NSWCA 475, refd to. [para. 40].

Fletcher Construction Australia Ltd. v. Lines, MacFarlane & Marshall Pty. Ltd. (No. 2), [2002] VSCA 189; [2002] V.R. 1, refd to. [para. 40].

United States v. El Paso Natural Gas Co. (1964), 376 U.S. 561, refd to. [para. 41].

United States v. Marine Bancorporation INc. (1974), 418 U.S. 602, refd to. [para. 41].

Sorger et al. v. Bank of Nova Scotia et al. (1998), 109 O.A.C. 130; 39 O.R.(3d) 1 (C.A.), refd to. [para. 42].

R. v. Gaudet (V.J.) et al. (1998), 109 O.A.C. 381; 40 O.R.(3d) 1 (C.A.), refd to. [para. 42].

Canada (Attorney General) v. Ni-Met Resources Inc. (2005), 196 O.A.C. 85; 74 O.R.(3d) 641 (C.A.), refd to. [para. 45].

2878852 Canada Inc. v. Jones Heward Investments Counsel Inc. and Marshall Nicholishen, 2007 ONCA 28, refd to. [para. 46].

R. v. Dastous (R.) (2004), 181 O.A.C. 398 (C.A.), refd to. [para. 47].

R. v. Kendall (S.) (2005), 200 O.A.C. 18; 75 O.R.(3d) 565 (C.A.), leave to appeal denied [2006] 1 S.C.R. x; 350 N.R. 193, refd to. [para. 47].

Janssen-Ortho Inc. et al. v. Apotex Inc. et al. (2009), 392 N.R. 71; 2009 FCA 212, refd to. [para. 48].

Authors and Works Noticed:

Silverman, Gregory M., Rise of the Machines: Justice Information Systems and the Question of Public Access to Court Records over the Internet (2004), 79 Wash. L. Rev. 175, p. 196 [para. 34].

Stern, Simon, Copyright Originality and Judicial Originality (2013), 63 U.T.L.J. 1, pp. 1, 6 [para. 32].

Counsel:

Paul McGivern, Dan Shugarman, Ann Howell and Marie-France Major, for the appellants/respondents on cross-appeal;

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

James M. Lepp, Q.C., Mandeep K. Gill and Daniel J. Reid, for the respondents, Dale R. Steele, Jenise Yue and Fawaz Edris;

M. David Lepofsky, for the intervener, the Attorney General of Ontario;

George K. Macintosh, Q.C., and Tim Dickson, for the intervener, the Trial Lawyers Association of British Columbia;

Mahmud Jamal and Raphael Eghan, for the intervener, the Canadian Bar Association.

Solicitors of Record:

Pacific Medical Law, Vancouver, British Columbia; Whitelaw Twining Law Corp., Vancouver, British Columbia; Supreme Advocacy, Ottawa, Ontario, for the appellants/respondents on cross-appeal;

Guild Yule, Vancouver, British Columbia, for the respondents/appellants on cross-appeal, British Columbia Women's Hospital and Health Centre and F. Bellini;

Harper Grey, Vancouver, British Columbia, for the respondents, Dale R. Steele, Jenise Yue and Fawaz Edris;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Farris, Vaughan, Wills & Murphy, Vancouver, British Columbia, for the intervener, the Trial Lawyers Association of British Columbia;

Osler, Hoskin & Harcourt, Toronto, Ontario, for the intervener, the Canadian Bar Association.

This appeal and cross-appeal were heard on November 13, 2012, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada.

On May 24, 2013, McLachlin, C.J.C., delivered the following judgment in both official languages for the Court.