Must They Be Required to Testify? Arbitrators in Court - Chapter 23 - AAA Handbook on Commercial Arbitration - 2nd Edition
Norman M. Fera is a partner in the national law firm of Lang Michener LLP in Ottawa, Ontario, Canada, and is the editor of the firm's flagship publication, In Brief. He is also on the roster of court-connected mediators in the Ontario Superior Court of Justice at Ottawa. Fera holds a B.A. (Hons.) and M.A. from Carleton University and an LL.B. fromthe University of Ottawa. He has written numerous articles on alternative dispute resolution and other legal topics, and is the co-author of three legal textbooks, including The Annotated Ontario and Federal Arbitration Acts.
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It seems inconceivable that a judge of first instance should or would be called as a witness in an appeal or review of his or her own decision. From a practical point of view, the judicial system, already slow and cumbersome, would in short order become gridlocked. Apart, however, from such mundane considerations, there must be sound public policy reasons for refusing to countenance such a practice. If so, then why do arbitrators1 not enjoy the same deference?
II. Case Study
A case3 in which I was involved as counsel in an application to have the award of the arbitrator judicially reviewed4 has caused me to seriously reflect on whether it is ever5 appropriate to require an arbitrator to give testimony after an appeal or review has been commenced in the very matter that is the subject of judicial supervision. In the circumstances of this case, not only did the process leave an aura of impropriety in its wake, it may even be seen to have shaken the foundation of impartiality and neutrality so fundamental to any adjudicative process whether in the private or public sector.
The case concerned a domestic arbitration. The parties agreed to arbitration and signed an agreement which specifically set out a single, identifiable area to be arbitrated. Accordingly, it was patent, and not in dispute, that upon entering the arbitration room, the parties expected and had agreed to have a single matter arbitrated on that date. The arbitration award, however, dealt with other matters.