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Judicial Independence

. The Corporation of the City of Windsor v. Paciorka Leasehold Limited

In The Corporation of the City of Windsor v. Paciorka Leasehold Limited (Div Ct, 2021) the Divisional Court considered the issue of 'judicial copying' (although here it was by a tribunal) as an aspect of judicial independence:
[49] In Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, the Supreme Court of Canada addressed the issue of “judicial copying”. The Court held that judicial copying raises issues of natural justice because it goes to the issue of whether the decision maker decided the matter independently.

[50] In Cojocaru, at para. 22, the Court emphasized that there is a presumption of judicial impartiality and that the onus is on the party challenging the decision to rebut the presumption:
There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently.
[51] In Cojocaru, at paras. 35-36, the Court stated that “extensive” judicial copying is to be discouraged but that, on its own, it is not evidence of a lack of independence. The copying must be “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 also held that, while it is expected that adjudicators will make their decisions independently, it is not improper for some copying from the parties’ submissions to take place. The issue is whether the reasoning and assessment of the evidence occurred independently.



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