706 THE ADVOCATE
VOL. 76 PART 5 SEPTEMBER 2018
Thus, even where the trier of fact gives the parties an opportunity to make
submissions on the factual findings made by relying on extrinsic evidence,
that is not sufficient, as it is ultimately for the trier of fact to ensure that
there is a fair trial, not to introduce evidence on his or her own initiative.
An arbitrator must also conduct a fair hearing. One distinction between
an arbitrator and a trial judge is that arbitrators are often chosen because of
their particular knowledge or expertise in an area, and the parties may reasonably
expect that the arbitrator will not ignore this expertise. However,
general knowledge of the industry is not a substitute for the requirement
that evidence on a specific matter ought to be presented by the parties, so
each party has an opportunity to test the other’s evidence through crossexamination
or to respond with their own evidence. Given the requirement
to conduct a fair hearing and to avoid being the “advocate, witness and
judge”, it is best practice, in my view, for the arbitrator to tread carefully in
making assumptions based on his or her “general knowledge” of an industry
and, when in doubt, should offer the parties the opportunity to address the
issue by presenting evidence.
One way in which an arbitrator can initiate a process through which facts
may be gathered is by ordering a view or inspection of a property.4 This
process may be initiated where value is in issue, for example. The arbitrator
may wish to view a real property after hearing evidence in connection with
the same. The appropriate practice, in my view, is for the arbitrator to give
notice to the parties of his or her desire to view or inspect the property. At
that point an order should be made to that effect, giving the parties notice
of the date and time of the attendance, so that the parties and their representatives
may be present and provide comments when the view or inspection
Should an Arbitrator Perform Legal Research Beyond the Parties’ Submissions?
It is not unusual for a judge to refer to cases that, although not cited by the
parties, are recent expressions of cases well known and referred to by counsel.
I see no harm in that. However, once an arbitrator embarks on his or
her own legal research on a legal issue or principle not raised or focused
upon by the parties, I believe he or she is on shaky ground and may subject
the award to a finding of arbitral error.
Underlying all arbitrations is the right of each party to know the case it
has to meet. That is inherent in the concept of a fair hearing. So for an arbitrator
to venture out on his or her own to research a legal issue that the parties
have not raised, or may be peripheral to the case, would arguably be
manifestly unfair. The saving grace, however, could be if the arbitrator
raised the legal issue with the parties and asked them to address it, rather