Wednesday, May 9, 2012

Judge's reasons ought not to consist reproductions of the written arguments of counsel

Fuller Western Rubber Linings Ltd. v Spence Corrosion Services Ltd., 2012 ABCA 137 holds that reasons ought not to consist reproductions of the written arguments of counsel. Such a practice is common but unfortunate:

[5]               The basis for issuing the injunction is somewhat unclear, because the reasons of the chambers judge consist largely of unattributed reproductions of the written arguments of counsel. This form of decision making obscures the reasoning of the chambers judge and impedes meaningful appellate review: Cojocaru (Guardian ad litem of) v British Columbia Women's Hospital and Health Center, 2011 BCCA 192 (CanLII), 2011 BCCA 192 at para. 127, 17 BCLR (5th) 253 leave to appeal granted SCC #34304 (November 24, 2011). The standard of review for an interlocutory injunction is deferential, but the appellate court needs to understand the source of the injunction to apply that standard of review.

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