THE ADVOCATE 705
VOL. 76 PART 5 SEPTEMBER 2018
A VIEW FROM
By Herb S. Silber, Q.C.*
SHOULD ARBITRATORS CONDUCT THEIR OWN RESEARCH?
In a recent symposium put on by the ADR Institute of BC, one of the sessions
raised the topic of arbitrators doing their own research. While the focus
of the discussion was legal research, I believe it is instructive to approach
this topic in two parts: research of the facts and research of the law.
Should an Arbitrator Conduct Independent Research of the Facts Outside the
Evidence Presented at the Arbitration?
In 2015 the British Columbia Court of Appeal addressed a similar question,
albeit in the criminal context, in R. v. Bornyk.1 There, the trial judge had
done his own reading of expert articles on the reliability of fingerprint evidence,
which in that case was the key to the ultimate verdict, and concluded
that the expert evidence presented by the prosecution was not reliable. The
Court of Appeal admonished the trial judge and overturned the not-guilty
verdict. It noted that “it is basic to trial work that a judge may only rely
upon the evidence presented at trial, except where judicial notice may be
taken”.2 (Judicial notice may be taken only in exceptional circumstances
where there is indisputable accuracy of the assertion—for example, Monday
is followed by Tuesday.) The court continued:
By his actions, the judge stepped beyond his proper neutral role and into
the fray. In doing so, he compromised the appearance of judicial independence
essential to a fair trial. While he sought submissions on the
material he had located, by the very act of his self-directed research, in
the words of Justice Doherty in R. v. Hamilton (2004), 189 O.A.C. 90, 241
D.L.R. (4th) 490 at para. 71, he assumed the multi-faceted role of ‘advocate,
witness and judge’.3
* Herb S. Silber, Q.C., is associate counsel at Kornfeld LLP. He is also a domestic mediation and arbitration panellist with
the BC International Commercial Arbitration Centre (“BCICAC”).