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Judges - As Advocate

. Blake v. Blake

In (Div Ct, 2021) the Divisional Court considered the requirement that when a judge raises their own case law, that the parties be given a chance to submit agument on it:
[52] As trial judges we are expected to dispose of matters before us, solely on the basis of the evidence presented to us by counsel. However, it is open to judges to consider all relevant authorities, whether cited by the parties or not: McCunn Estate v. Canadian Imperial Bank of Commerce (2001), 53 O.R. (3d) 304, 2001 CanLII 24162 (C.A.), at paras. 42f. However, when judges consider authorities not cited by the parties, the issue of whether counsel should be invited to make further submissions arises. McCunn provides an example of when such an invitation should be extended; specifically the court refers to a situation where the law has undergone a significant change and the court intends to base its decision on that change.
. Sosnov v. J&H Freiberg

In Sosnov v. J&H Freiberg (Div Ct, 2021) the Divisional Court considers an order made in a pre-trial conference:
11. The purpose of a pre-trial is to provide an opportunity to settle any or all issues without a trial and, with respect to any issues not settled, to provide orders or directions “to assist in the just, most expeditious and least expensive disposition of the proceeding” (rule 50.01).

12. As a result, a pre-trial judge has a broad discretion to, amongst other things, make such orders as he or she considers necessary or advisable with respect to the conduct of the proceedings (rule 50.07).

13. Rule 52.03(1) provides that a judge may, at any time, on motion by a party or on his or her own initiative, appoint one or more experts to inquire into and report “on any question of fact or opinion relevant to an issue in the action.”

14. While we recognise that not every order or direction made in a pre-trial proceeding will require reasons, in the present proceeding where the appellants were opposed to the appointment of a court expert (and the plaintiffs to having to pay for it), in our view, it was incumbent on the Pre-Trial Judge to provide reasons for the Order. She did not.

15. Further, the absence of reasons prevents meaningful appellate review: R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34. In the circumstances, the failure of the Pre-Trial Judge to provide reasons is an error.

16. Further, the Pre-Trial Judge erred in our view, in appointing an expert to determine the matters in issue as well as issues not raised by the parties. The role of a court appointed expert is to assist the court in understanding the evidence within their area of expertise. It is not to investigate, advance possible theories and state, as conclusions of fact, opinions based on matters not advanced in evidence: Phillips v. Ford Motor Co. of Canada, 1971 CanLII 389 (ON CA), [1971] O.J. No. 1564 (C.A.).

17.That, however, is exactly what the Order does. It requires the expert to investigate, weigh evidence and explore any other scenario which in his view would be relevant to the understanding of liability. In so doing, the Order usurps the role of the trier of fact and the parties right to present the case as they see fit.


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