Experts at Environmental Review Tribunal
15-‐04-‐01 Experts at the ERT Using Experts Successfully at Environmental Tribunal Hearings April 2, 2015 Dianne Saxe, Ph.D. in Law Saxe Law Office envirolaw.com • Experts in the ERT Rules • ERT Practice Direction for Technical and Opinion Evidence • Particular challenges • Timing • Evidence filed directly • Not bound by evidence law Saxe Law Office Overview 2 1 Saxe Law Office 15-‐04-‐01 Rules of Practice and Practice Directions of The Environmental Review Tribunal h6p://www.ert.gov.on.ca/english/guides/index.htm EXPERTS IN THE ERT RULES 3 • Preliminary hearing (R. 132, 141, 152) may include: • Dates for exchange expert report. • Often simultaneous • ERT may order exchange of expert reports (R. 163). • ERT may appoint its own expert (R. 197). Saxe Law Office Experts in the ERT Rules 4 2 15-‐04-‐01 Experts in the ERT Rules • Did party seeking award share experts where possible? • Seaspan ULC v. Director, EMA (BC EAB) – costs award against appellant that unexpectedly abandoned appeal after expert witness completely discredited Saxe Law Office • Costs consideration (R. 224): • Compressed timetable for REA appeals (Appendix A). • Exchange expert reports 5.5 weeks after appeal expiry date. 5 • Summons to witness (R. 191). • Involuntary expert can be summonsed, witness statement not strictly required. • Make “reasonable efforts to secure the witness’s co-‐‑operation in voluntarily providing a complete witness statement.” • No witness statement? Describe anticipated evidence to the other parties as well as possible. • Failure to do so may result in exclusion of statement. • Gillespie v. Director, MOE, 2014 CarswellOnt 18121 Saxe Law Office Experts in the ERT Rules 6 3 15-‐04-‐01 7 Saxe Law Office Opinion evidence that is: • Fair, objective, non-‐‑partisan • Within expertise • In accordance with ERT practice direction • …And provide such additional assistance as ERT may require. Saxe Law Office Acknowledgment of Expert’s Duty (Appendix F - Form 5) Practice Direction for Technical and Opinion Evidence h6p://www.ert.gov.on.ca/english/guides/index.htm ERT PRACTICE DIRECTION RE EXPERTS 8 4 15-‐04-‐01 Technical witnesses Expert or Opinion Witness -‐‑ Evidence of scientific and technical observations, tests, measurements, and estimates -‐‑ May include government employees -‐‑ Specialized education, training, or experience that qualify her to: -‐‑ A) reliably interpret scientific or technical info or -‐‑ B) express opinions about mafers for which untrained or inexperienced persons cannot provide reliable opinions. Saxe Law Office Fact vs. Opinion Witness -‐‑ No interpretation of meaning or -‐‑ Must be based on accurate facts, significance of the evidence. reliable estimates, and accepted or tested techniques or methods -‐‑ Unbiased -‐‑ Not an advocate 9 • “[R]eflects the law of evidence that, in order to provide opinion evidence, a witness must have special or peculiar knowledge or experience that is beyond the knowledge of the common person. So long as the witness satisfies this requirement, the way in which a person has acquired the knowledge is immaterial.” • Required to ensure that expert opinions meet “a basic threshold of reliability.” • Bovaird v. Director, MOE Saxe Law Office Expert’s Duty per ERT 10 5 15-‐04-‐01 • Non-‐‑practicing doctor could not provide diagnoses. • Her proposed evidence was diagnostic opinions. • ERT: insufficient reliability – • “contradictory circumstances where diagnostic opinion is being proffered by the witness, while, at the same time, the witness stipulates that she cannot provide such diagnostic opinion.“ 11 Saxe Law Office • Permifed to provide evidence as fact witness. Saxe Law Office Bovaird v. Director, MOE Timing Reports filed directly Not bound by Rules of Evidence PARTICULAR CHALLENGES 12 6 15-‐04-‐01 • Simultaneous exchange of reports is common • Haste! Tight timelines, esp. for • REA Appeal • Leave motion Saxe Law Office Timing 13 • No opportunity for voir – dire • Foundation Facts? • Remedy? • Motion to strike? • Argument about weight? Saxe Law Office Reports filed directly 14 7 15-‐04-‐01 • ERT may receive evidence, whether or not given under oath or affirmation or admissible in a court Saxe Law Office Not bound by evidence law • R. 183 15 Excluded only if Court (Evidence Act) • What is inadmissible? Inadmissible under statute Not reasonably reliable Privileged Privileged Not relevant to the subject-‐‑mafer of the proceeding Does not prove relevant facts More prejudicial than probative Inadmissible under the Rules of Evidence, ex. -‐‑ Hearsay -‐‑ Self-‐‑serving evidence -‐‑ Collateral fact rule -‐‑ Unsubstantiated expert opinion Saxe Law Office ERT (R. 183) 16 8 15-‐04-‐01 • E.g.: • Reports to Minister or employees of Ministry -‐‑ Improving Customer Service for Road Users Act, s. 10(2) • Report prepared by Independent Police Review Director, Police Services Act, s. 26.1 (11) • Contract of marine insurance, unless embodied in a marine policy, Marine Insurance Act, s. 23 • Report of assessment, child abuse register, Child and Family Services Act, s. 54(8), s. 75(14), Record of hearing re registered person, s. 76(12) • Report by Crown aforneys and police officers, optometrist, Highway Traffic Act, s. 203(3), 204(3) Saxe Law Office Inadmissible by statute? 17 • Essential gatekeeper role to keep out unreliable expert evidence, at risk of miscarriages of justice • Goudge Inquiry • Daubert Saxe Law Office Where is the gatekeeper? 18 9 15-‐04-‐01 • Generally, question of independence goes to weight, not admissibility, unless so tainted as to render of minimal or no assistance • ERT has cited Carmen Alfano Family Trust v. Piersanti, [2012] O.J. No. 2042 (Ont. C.A.)) Saxe Law Office Expert independence? 19 Alleged bias ERT holding Acted as advocate -‐‑ Initially referred to as representative in correspondence -‐‑ Sat beside party -‐‑ Filed Form 5, provided witness statement, qualified without objection at hearing -‐‑ Actions at hearing not those of advocate Failed to present own evidence. Expert witness, once qualified, is entitled to give opinion evidence based on info the witness considers relevant. Saxe Law Office Kingsmill v. Niagara Escarpment Commission Not tainted by bias or partiality 20 10 15-‐04-‐01 Alleged bias ERT holding Involvement in wind issues as advocate Could be qualified as expert because: -‐‑ Alleged health impacts of wind turbines is emerging area with few experts -‐‑ Has engaged with more individuals alleging such health effects than anyone else in Canada -‐‑ Testified as expert in Erickson -‐‑ Demonstrated personal integrity Saxe Law Office Alliance to Protect PEC v. Director, MOE 21 Independence OMB holdings Engaging in advocacy Not a bar Member of advocacy group that is an appellant Cannot be qualified as expert witness Saxe Law Office Re: Citizen’s Coalition of Greater Fort Erie 22 11 15-‐04-‐01 • Not much gatekeeping • Most concerns “go to weight” • Consequences? • More accessible to lay participants? • Impact on cost? • Risk of miscarriage of justice? Saxe Law Office Conclusion 23 Questions? 720 Bathurst Street, Suite 204 Toronto, Ontario M5S 2R4 Tel: 416 962 5009 / 416 962 5882 Fax: 416 962 8817 [email protected] envirolaw.com Saxe Law Office Saxe Law Office 24 12
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