A sense of déjà vu came over Toronto immigration lawyer Michael Battista as he read a recent decision denying refugee status to a 24-year-old client who feared becoming a target of homophobia back in his native India.
Checking carefully, Mr. Battista found that paragraph after paragraph was identical to a decision another federal Immigration and Refugee Board adjudicator had rendered several months earlier.
In a letter to the IRB last week demanding a fresh hearing for his client, Mr. Battista said that copying passages from other decisions has no place in decisions involving potential life and death.
“We are paying these decision makers substantial salaries from public funds,” Mr. Battista said in an interview. “I believe they are being paid to exercise their judgment independently based on the evidence before them, not to take shortcuts by plagiarizing reasons from other cases.”
The case points to an increasingly contentious issue in the legal world. Concern is rising at all levels of courts about passages copied from other documents and decisions, often without a trace of attribution.
The problem even induced the Supreme Court of Canada to include a case on its fall docket that involves a $4-million award in a B.C. medical liability lawsuit. The award could be overturned because the trial judge copied, and failed to attribute, significant portions from the the plaintiff’s closing arguments.
The practice appears to be particularly prevalent in federal Immigration and Refugee Board decisions.
Raoul Boulakia, former president of the Refugee Lawyers Association, said in an interview that he has encountered many decisions that regurgitated entire passages from other decisions without providing any reference to sources or the fact that they were recycled.
“It is highly arbitrary and gives the distinct impression of lack of judicious thought for the individual claimant,” Mr. Boulakia said. “As a point of law, it amounts to giving inadequate reasons. It is giving reasons that are not clearly based on the specific evidence in the individual’s case.”
In a 1992 case, the Federal Court of Canada said that the use of “boilerplate” passages in judgments is inadvisable, but not unlawful, provided they are attributed to their source.
Anna Pape, an IRB spokeswoman, said that members adhere to that principle by sometimes adopting the reasoning of previous IRB decisions, “where the facts underlying the decisions are sufficiently similar to those in the case being decided and they agree with the reasoning followed.”
Adjudicators are permitted to select reasons they consider well-written and well-researched, Ms. Pape said. She said they are expected to adopt and cite the reasoning that is appropriate to their own case.
However, Mr. Boulakia that many IRB decisions take and re-use passages that are very specific to a case without stating this has been done. “That is highly arbitrary and gives the distinct impression of lack of judicious thought for the individual claimant,” he said.
In Mr. Battista’s case, the claimants in each decision had fled India after allegedly suffering discriminatory treatment. IRB adjudicators rejected both refugee claims. Mr. Battista alleged in his letter to the board that one adjudicator copied large patches of his ruling from an earlier decision by another adjudicator – errors and all.
“You will see that not only the structure of the decision is the same, but there are identical findings made on identical issues …,” he alleged. “The plagiarizing of errors clearly indicates that [the adjudicator] did not make an independent examination of the evidence,” he said.
Sean Rehaag, an assistant law professor at York University’s Osgoode Hall Law School, said that it is not possible to pin down how many cases involve copied material because most IRB decisions are not published.
However, he said the practice arises regularly, including one board member who was discovered recently to have copied lengthy portions into five decisions he had rendered.