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167 This principle is applicable to the petition before me because
under the impugned Rule, the court would be asked to play an investigatory
function by appointing expert witnesses, in contrast to its usual
impartial, adjudicative role.
. . . .
172 Instead, the impugned Rule places the court in a role that it should
not be placed in. Transferring the responsibility of ensuring that there is
relevant evidence upon which to decide the issues in a personal injury
case from the parties to the court does, in my view, intrude upon what
has, to date, been the core function of the court: to decide a case fairly
upon the evidence adduced by the parties.
173 The Attorney General’s submission that more reliance ought to be
placed on court-appointed experts misconstrues the role and the ability
of the court.
174 The use of court-appointed expert witnesses is inconsistent with
the traditional means of litigating legal disputes in Canada. In R. v. Mian,
2014 SCC 54, with reference to a criminal prosecution, Mr. Justice Rothstein
wrote at para. 38:
Our adversarial system of determining legal disputes is a procedural
system “involving active and unhindered parties contesting
with each other to put forth a case before an independent decision
maker” (Black’s Law Dictionary (9th ed. 2009), sub verbo
“adversary system”). An important component of this system is
the principle of party presentation, under which courts “rely on
the parties to frame the issues for decision and assign to courts the
role of neutral arbiter of matters the parties present” (Greenlaw v.
United States, 554 U.S. 237 (2008), at p. 243, per Ginsburg J.).
175 Unless and until the evidence that the parties have chosen to lead
has been adduced, the court has no way of determining what further evidence
might be needed, and no way of obtaining that evidence if it is
thought to be required.
176 If it is thought that the court would engage in a planning exercise
with counsel prior to trial in order to determine what evidence is needed,
it would require judges to depart from their traditional non-adversarial
role, and consider how a case might be best presented, contrary to the
principle of party presentation.
Hinkson C.J.S.C. referenced the Supreme Court of Canada’s seminal
2014 decision in Trial Lawyers Association of British Columbia v. British
Columbia (Attorney General).13 As (Alyn) James Johnson notes in “Imperial
Tobacco and Trial Lawyers: An Unstable and Unsuccessful Retreat”,14 there
has been for some time a struggle in constitutional litigation between a “textual
approach”, according to which constitutional terms must be sourced in
express terms of the text of the Constitution before they can form the basis
of an argument to overrule legislation (which found its high water mark in
British Columbia v. Imperial Tobacco Canada Ltd.15), and the “architectural
model”, which uses a collection of organizing principles engaging both writ-