Simon's Legal Resources

Reasons - Third Party Copying

This is an unexpected issue. Sometimes the decision-maker, even a judge, may essentially repeat someone else's expression, giving rise to a suspicion that they have engaged in plagiarism. This is not when a judge repeats themselves from case-to-case (which I have seen), assuming the original expression was their own, as that is allowable and even a sign of a well-organized, confident mind.

. Biogen Canada Inc. v. Pharmascience Inc.

In Biogen Canada Inc. v. Pharmascience Inc. (Fed CA, 2022) the Federal Court of Appeal considered judicial copying in reasons for decision:

[59] In Cojocaru v British Columbia Women ‘s Hospital and Health Centre 2013 SCC 30, (Cojocaru) the Supreme Court was faced with an even more extensive case of copying, albeit in a different context (judicial reasons). It noted that the extensive copying could create an impression that the reasons were not reflecting the judge’s own thinking and thus such practice should be discouraged. But, it did not automatically follow that the judge was not impartial or independent (Cojocaru at paras. 35-36). I therefore conclude that one must carefully consider the exact nature of the information copied before concluding that an expert cannot perform their duty to the Court. Obviously, that is not to say that it could not have any impact on the trier of fact’s overall assessment of the report of the expert and the actual weight attributed to it. It clearly did here and the Federal Court was right in issuing a warning to the bar to discourage any such practice.