Court of Appeal Decision of the Week

Dangers of Judge Copying Counsel’s Submissions

Case: Ogden v. Canadian Imperial Bank of Commerce, 2015 BCCA 175

Keywords: Judicial copying, Cojocaru, employment law, wrongful dismissal

Synopsis: Ms. Ogden worked for CIBC. She received a call in the middle of the night from a client needing to urgently transfer funds from China to a Canadian bank account in order to close a property transaction. Ogden agreed and accepted a wire transfer of approximately $100,000 into her own personal account and one shared with her husband. The next morning she transferred the funds to her client’s Canadian CIBC account in order for the client to complete the deal. CIBC discovered this “commingling” of a client’s funds with her personal account and terminated her employment for cause.

Ogden sued for wrongful dismissal asserting that a single error in judgment was not sufficient to end her employment. The trial judge agreed and awarded her damages, including aggravated damages. The trial judge’s complete agreement with Ogden was reflected in his reasons: he adopted, almost word for word, 482 paragraphs from Ogden’s counsel’s written closing submissions. The total judgment being 497 paragraphs.

The B.C.C.A. allowed the appeal and ordered a new trial. The Court did not delve into the procedural issue as to the judge’s copying of counsel’s submissions, but found there was misapprehension of the evidence and legal arguments which constituted palpable and overriding errors.

Importance: While normally a lawyer would be flattered to have his or her submissions adopted in a judge’s reasons, this appeal highlights the dangers associated with such a practice. The SCC in another B.C. case, Cojocaru v. B.C. Women’s Hospital and Health Centre, 2013 SCC 30 held that judicial copying was an accepted practice but could lead to problems:

To sum up, 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. (para. 36) (per Chief Justice McLachlin)

In the B.C.C.A. appeal herein, the copying appears to have been more extensive than that in Cojocaru, but the B.C.C.A. noted “something more” was needed to set aside a judgment. Given the substantive issues in this case, however, it declined to decide the appeal on this procedural ground.

Despite the C.A. declining to address the copying issue, the substantive grounds may have been avoided if the extensive copying did not occur. The first substantive ground of appeal was that the judge misapprehended the legal argument and basis upon which CIBC advanced its defence. This problem stemmed from the fact that Ogden misconstrued CIBC’s defence in her written submissions. Accordingly, when the judge adopted those written submissions in his reasons, he too misconstrued the basis of CIBC’s defence resulting in an error of law.

The second substantive ground dealt with the award of aggravated damages. The judge authored the section of his reasons dismissing Ogden’s claim for punitive damages. However, he drew inferences of fact that conflicted with earlier findings of fact (copied from Ogden’s submissions) in his award of aggravated damages. The C.A. found this cast doubt on the finding that CIBC was liable for aggravated damages.

On the third ground, the Court found the judge misapprehended the evidence concerning the question of whether the wire transfer was a breach of CIBC’s employee Code of Conduct. The trial judge found the Code and her employment agreement unclear, but the C.A. held simply because they relied on broad principles did not make them ambiguous. The C.A. found that the focus should have been on whether the bank was justified in terminating Ms. Ogden’s employment for cause based on a single incident of misconduct.

Whether the outcome would have been different had the judge not copied as extensively from counsel’s submissions is unknown, but there is a strong likelihood that the copying contributed to the errors given their nature.

Counsel for the Appellant: Randy Kaardal, Q.C., Paul Heisler, Rebecca Robb (Hunter Litigation Chambers, Vancouver)

Counsel for the Respondent: Nicole Howell, Heather Cane, Derek Knoechel (Hamilton Howell Bain & Gould, Vancouver)

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Posted: Tuesday, April 28, 2015