In a decision released last Friday, the Court of Appeal sent a strong message to the trial bench: be very careful about incorporating into judgments excerpts from the arguments of counsel.
The case is 2878852 Canada Inc. v. Jones Heward Investment Counsel Inc. The plaintiff’s claim arose out of alleged mismanagement by the defendant of an investment portfolio. Pursuant to section 126(5) of the Courts of Justice Act, judgments are supposed to be delivered within six months of the hearing. In this case, the six-month deadline was looming. To save time, the trial judge elected to incorporate, by reference, some 105 paragraphs of the factums of both counsel, into his reasons for judgment. He explained his rationale as follows:
[5] It is now nearly six months since the conclusion of the trial of this action. The pressure of presiding over other cases and preparing judgments in more urgent, but not necessarily more important, cases has made it impossible for me to give my judgment earlier. As well, in addition to the oral evidence of witnesses, the record in this case includes a vast number of documents and it has required a great deal of time to review all of the evidence and arrive at a just disposition. It is now desirable that judgment be rendered prior to the expiry, in just a few days, of what is now considered to be the acceptable time limit for judgments to be reserved in the absence of unusual circumstances.
[26] As I began to write these reasons, I was fortunate to have the closing submissions of both sides before me. Both contained extensive references to the evidence and the inferences that should be drawn. Accordingly, I found myself using those submissions extensively and borrowing freely from them.
[27] In these circumstances, I have therefore decided to shorten these reasons by adopting portions of both submissions as submitted by counsel rather than by setting out in my own words essentially what counsel have already done. There is nothing to be gained in delaying the release of this judgment merely to enable me to rewrite the submissions. Both of them were carefully prepared and, so far as I could ascertain, fairly and accurately reflected the evidence that was tendered.
[28] I adopt and incorporate into these reasons the following paragraphs of the submissions made on behalf of the plaintiff; 134, 135, 136, 137, 138, 139, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180 (the reference in [para.] (c) at page 75 should be to Nicholishen and not Monahan), 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 197A.
[29] I adopt and incorporate into these reasons the following paragraphs of the submissions made on behalf of the defendants; 3, 4, 5, 6, 7, 13, 14, 15, 16, 17, 18, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 65, 66, 67, 68, 69, 70, 71, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85.
Judgment was given for the plaintiff. However, on appeal, the defendant argued that the trial judge, by incorporating the above passages into his decision, had made inconsistent findings of fact. For example, in his own reasons, the judge had found that the defendant’s acquisition of a particular investment had not been in keeping with its “model portfolio”. But he also incorporated into his reasons by reference, submissions of counsel for the defendant, that the acquisition of all stocks by the defendant had been in keeping with its model portfolio.
By a 2-1 majority, the Court of Appeal dismissed the defendant’s appeal. However, both the majority (Justices Susan E. Lang and Janet M. Simmons) and the minority (Justice Stephen T. Goudge) were very critical of the trial judge having incorporated into his decision excerpts from the submissions of counsel.
Justice Lang, on behalf of herself and Justice Simmons, made the following observations about this practice:
Unquestionably, the trial judge’s decision to incorporate parts of the parties’ written argument into his reasons was ill-advised and unfortunate. In my view, a trial judge’s reasons should be comprehensive on their own and, absent exceptional circumstances, should not simply incorporate, by reference to particular paragraph numbers, portions of the parties’ facta or written submissions. In part, this adoption by reference of the parties’ positions led to this appeal because the findings in the main body of the trial judge’s reasons were inconsistent with the paragraphs of the written argument that he adopted.
Justice Goudge went even further in his dissenting opinion. (He would have ordered a new trial.) He articulated his concerns in the following passage:
[68] There is no doubt that limited, careful, and explained adoption of counsel’s argument can sometimes assist reasons for judgment. That is not this case. In my view the wholesale incorporation here, and the seven paragraphs I have quoted, raise three serious concerns about the reasons as a whole.
[69] First, they raise the concern that large parts of the judgment were pasted together from the thinking of others, to meet the six month guideline for the release of judgments, at some cost to full and independent consideration of the case by the judge himself.
[70] There can be no doubt that both the principle of timely release of judgments and the principle of full and independent judicial consideration are vital if the parties and the public are to have confidence in the judicial system. One cannot be traded off against the other. Where a judgment raises that possibility, the system is not well served. Moreover, in this case, there was no need for it, given the timing I have described. The trial judge had three more weeks to put his own stamp on the reasons and yet stay within the guidelines.
[71] Second, the manner of incorporation here runs the risk of creating an incoherent judgment. The trial judge provides no guidance about the issues to which he thinks the incorporated paragraphs relate. Nor does he tell us whether those incorporated paragraphs that are phrased in the typical language of submissions are to be read as judicial findings. In my view, reasons for judgment should leave the reader guessing as little as possible.
[72] Third, as my colleague points out, this case clearly demonstrates the risk inherent in this technique of a conflict between the trial judge’s own words and those he adopts by incorporation.
[73] This problem arises most acutely in the context of the Kazakhstan shares issue [the investment which the defendant argued had been dealt with inconsistently in the trial judge’s reasons]. To sustain the trial result on that issue, the respondent argues that the trial judge concluded that these shares were not purchased in accordance with the appellant’s model equity portfolio. The respondent must then explain the direct conflict between that finding and the trial judge’s incorporated finding that at all times the appellant operated the respondent’s account in accorandance with the same management strategy it applied to all clients and in accorandance with its model equity portfolio. As I will discuss, I do not think that circle can be squared in this case. shares issue [the investment which the defendant argued had been dealt with inconsistently in the trial judge’s reasons]. To sustain the trial result on that issue, the respondent argues that the trial judge concluded that these shares were not purchased in accordance with the appellant’s model equity portfolio. The respondent must then explain the direct conflict between that finding and the trial judge’s incorporated finding that at all times the appellant operated the respondent’s account in accorandance with the same management strategy it applied to all clients and in accorandance with its model equity portfolio. As I will discuss, I do not think that circle can be squared in this case.
[74] Whether or not the wholesale incorporation of parts of the parties’ submissions creates a fatal flaw in the trial judgment in any particular case, I agree with my colleague that it is an ill-advised and unfortunate practice. It can only diminish public confidence in the justice system and weaken the primary mechanism through which a judge is accountable, namely his or her reasons for judgment.
Comment
Advocates are often taught that, in preparing written submissions, they should aspire to writing the judge’s decision for him or her. In recent years, we have seen increasing use of factums by the judiciary. In our experience, this more commonly takes the form of “cutting and pasting” the actual text of counsel’s factums, rather than the incorporation of paragraph numbers by reference, as was done in this case. A problem that we have encountered is that the excerpted text sometimes contains wording that is pure advocacy, such as “it is submitted that…” Particularly where liberal use has been made of the factums, the line between what counsel has argued on behalf of a party and what the judge has decided, can become blurred.
We don’t take the Court of Appeal to have outlawed altogether reference to factums in trial judges’ reasons. (see paragraph 68 of the reasons of Goudge J.A.). However, it seems that such use of counsel’s submissions should be made sparingly in the future.