COURT OF APPEAL FOR ONTARIO

Page: 27
[47] As these passages reflect, the trial judge is a trier of fact who participates in the
dynamic of a trial, sees witnesses testify, follows the trial narrative, asks questions when
in doubt as to the substance of the evidence, monitors the cut and thrust of the
adversaries, and hears the evidence in the words of the witnesses. As expressed by the
majority in Housen, at para. 25, the trial judge is in a “privileged position”. The trial
judge‟s role as a participant in the unfolding of the evidence at trial provides a greater
assurance of fairness in the process for resolving the dispute. The nature of the process is
such that it is unlikely that the judge will overlook evidence as it is adduced into the
record in his or her presence.
[48] The trial dynamic also affords the parties the opportunity to present their case in
the manner of their choice. Advocates acknowledge that the order in which witnesses are
called, the manner in which they are examined and cross-examined, and how the
introduction of documents is interspersed with and explained by the oral evidence, is of
significance. This “trial narrative” may have an impact on the outcome. Indeed, entire
books have been written on this topic, including the classic by Frederic John Wrottesley,
The Examination of Witnesses in Court (London: Sweet and Maxwell, 1915). As the
author instructs counsel, at p. 63:
It is, perhaps, almost an impertinence to tell you that you are
by no means bound to call the witnesses in the order in which
they are placed in the brief.
It will be your task, when reading and noting up your case, to
marshall your witnesses in the order in which they will best