A divided B.C. Court of
Appeal has ordered a new trial
in a medical negligence case
because the reasons for judgment cannot satisfy the public
that justice has been done — they
consisted mostly of the reproduction without attribution of
the plaintiffs’ final arguments.
Eric Victor Cojocaru suffered
brain damage during his birth
on May 21, 2001 and after a
subsequent suit, Justice Joel
Groves found the hospital, an
obstetrical nurse and three
physicians liable.
The B.C. Supreme Court
judge awarded the child and his
mother more than $5 million in
damages, investment management fees, tax gross-up and
interest.
They are considering seeking
leave to appeal to the Supreme
Court of Canada, according to
media reports.
In dissenting reasons, appellate Justice Kenneth Smith
noted that of the 368 paragraphs in the trial decision, 321
of them were copied “almost
word-for-word” from the plaintiffs’ written closing submissions without acknowledgment.
But in other areas of the
decision, Justice Smith found
that the trial judge “did his own
analysis and reached his own
conclusions.”
Consequently, the appellate
judge added, an informed per-
son “would not infer from the
reasons in this case that the
trial judge shirked his duty.”
But the majority, Justices
Risa Levine and Pamela Kirk-
patrick, begged to differ in their
joint reasons.
“
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.
this danger [and,] in adopting
the [plaintiffs’] written submis-
sions[,] he overlooked and mis-
apprehended important evi-
dence, made errors in his legal
analysis, and failed entirely to
deal with a cogent defence
argument.”
Because of that, Justice
Smith would have dismissed the
actions against the hospital,
two of the doctors and the
nurse. He would have allowed
the appeal of the third doctor
but only to the extent of
reducing the damage award.
The majority, however, felt it
had no choice but to order a
new trial.
“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,” Justices Levine and
Kirkpatrick stated. n
The Law Society of B.C. (LSBC)
had a “99.99 per cent completion
rate” for compulsory professional
development (CPD) in 2010,
benchers heard April 15.
Executive Director Tim McGee told
benchers that of 10,300 practising
lawyers in the province, only 45 had
not completed their CPD by April 1.
Of those, he said, 37 had said they
would complete by that date. As of
April 14 nine lawyers had been
suspended. But, benchers heard, five
of those had already been suspended
for other reasons.
The LSBC requires lawyers to
complete 12 CPD hours per year under
the program which began in 2009.
NS lawyers get
mentoring program
But if they do adopt any or
all submissions, they must “take
pains to ensure that no important evidence or argument that
might support the other side is
overlooked.” In this case, the
trial judge “failed to recognize
Reasons: Cojocaru (Guardian Ad Litem) v.
British Columbia Women’s Hospital and
Health Center, [2011] B.C.J. No. 680.
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CONTENTS
LETTER TO THE EDITOR
NEWS
A JUDGE quashes a psychiatric
treatment order............................1
Health Law
CONTROVERSY RAGES over
stored blood samples................. 15
The Nova Scotia Barristers
Society and the Lawyers’ Insurance
Association of Nova Scotia have
formally launched a joint mentorship
program for lawyers across the
province.
At the event to celebrate the
program’s launch, Provincial Court
Judge Anne Derrick noted that
mentoring goes beyond helping
lawyers help lawyers. “Better
lawyers enhance public confidence
in the legal system and the
administration of justice,” she said.
Under the new program, mentors
and mentees will be matched in an
effort to “help improve relationships
among lawyers, promote camaraderie,
and help address issues of stress and
isolation faced by many lawyers,”
according to a program booklet.
Re: “The plight of the Stoney
Nation” The Lawyers Weekly,
April 22.
Immigration lawyers
say don’t vote Harper
B.C. COURTS are open to having
more paralegals in court, says BC’s
law society...................................1
HOSPITALS FACE heavy-handed
procurement directives .............. 15
Dear Editors,
A TRIAL decision is overturned
because of the judge’s blatant
plagiarism.....................................2
BUSINESS & CAREERS
CLOUD COMPUTING on rise..... 22
tration of Justice in the Province,
including the Constitution, Maintenance, and Organization of
Provincial Courts, both of Civil
and of Criminal Jurisdiction, and
including Procedure in Civil Matters in those Courts.” The provinces’ powers under s. 92 are also
generally held to include policing.
FELLOW SCC judges confronted
Chief Justice Lamer about his
performance before he resigned .. 3
SERVICES FOR cloud computing
booming ..................................... 23
David Schulze
Dionne Schulze, Montreal
FROM BAY Street to butcher...... 4
LAWYERS WARY of new
technology, says columnist Luigi
Benetton .................................... 24
NOVA SCOTIA cleans up its
provincial legislation..................... 5
FOCUS
Personal Injury
COMMUNICATING WITH personal
injury clients................................. 9
In his article, “The plight of the
Stoney Nation: Memoirs of a maver-
ick First Nations community judge,”
your correspondent Michael Rap-
paport makes the novel assertion
that: “Crime is a provincial matter.”
I would direct Mr. Rappaport’s
attention to s. 91( 27) of the Con-
stitution Act, 1867 which assigns
to exclusive federal jurisdiction:
“The Criminal Law, except the
Constitution of Courts of Criminal
Jurisdiction, but including the
Procedure in Criminal Matters.”
Provincial jurisdiction, under
s. 92( 14) is over: “The Adminis-
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EMERGING TRENDS in Ontario’s
accident benefits........................ 10
RICHES, MCKENZIE & HERBERT LLP
PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION
DEPARTMENTS
BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS
TO UNDERTAKE or not to
undertake ................................... 11
DO CASINOS owe a duty of care
to addicted gamblers?................ 12
INSURERS’ DISPUTE resolving
procedures get an overhaul........ 13
Careers ................. 24
Classified Ads ............ 19
Lawddities............... 14
Legal Briefs...............2
Letter to the Editor . . . . . . . . .2
Names in the News......... 4
Weekly Digest............ 17
PAUL HERBERT, B.SC., PHM., R.PH, LL.B., J.D., PH.D.
DAN HI TCHCOCK, B.ENG. (ELEC. ENG.), LL.B.
JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B.
BOBBY ATHWAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D.
BYRON THOM, B.A.SC. (ENG. SCI.), LL.B.
BRANT LATHAM, B.A.SC. B.SC. (CHEM. ENG.), LL.B.
GARY M. TRAVIS, B.SC. (GEOL.), LL.B.
MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B.
MICHAEL YUN, B.SC. (BIOCHEM), J.D.
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Forty immigration practitioners
and academics weighed in on the
federal election campaign by urging
Canadians not to vote Conservative
on May 2.
In a press release, prominent
lawyers such as Lorne Waldman and
Barbara Jackman of Toronto, Mitchell
Goldberg of Montreal and Warren
Creates of Ottawa, and academics
such as University of Ottawa’s Peter
Showler, challenged in detail the
Harper government’s contention that
its record and policies are favourable
to immigrants and refugees. Among
other things, the lawyers noted that
since 2006 the total time for
processing sponsorship applications
and visa applications for parents and
grandparents has increased
dramatically, even as the number of
visas granted annually has dropped
by 44 per cent.
Meanwhile, the backlog of skilled
worker applicants awaiting decisions
has increased to 508,000 from
487,000 and settlement funding for
immigrants has been cut, often for
“political” reasons, the lawyers
contend. They argue a proposed law
to punish human smuggling will
mainly hurt refugees.
