Judgments and orders — Reasons — Trial judge delivering reasons for judgment consisting of reproduction of plaintiffs’ written submissions — Whether trial judge’s decision should be set aside because reasons for judgment incorporated large portions of material prepared by others.

From the judgment:

The question before us is whether a trial judge’s decision should be set aside because his reasons incorporate large portions of material prepared by others, in this case the plaintiffs.

1.         A Matter of Procedure

[12]                           Judicial 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.

[13]                          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: see e.g. R. v. Teskey, 2007 SCC 25 (CanLII), 2007 SCC 25, [2007] 2 S.C.R. 267.  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.

For the full judgment on CanLII, click HERE