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
• 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
1 Saxe Law Office
15-­‐04-­‐01 Rules of Practice and Practice Directions of The Environmental Review Tribunal
• 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).
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Experts in the ERT Rules
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
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• Costs consideration (R. 224):
• Compressed timetable for REA appeals (Appendix A).
•  Exchange expert reports 5.5 weeks after appeal expiry date.
• 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
3 15-­‐04-­‐01 7
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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.
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Acknowledgment of Expert’s
Duty (Appendix F - Form 5)
Practice Direction for Technical and Opinion Evidence
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.
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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
•  “[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
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Expert’s Duty per ERT
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.“
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• Permifed to provide evidence as fact witness.
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Bovaird v. Director, MOE
Reports filed directly
Not bound by Rules of Evidence
6 15-­‐04-­‐01 • Simultaneous exchange of reports is common
• Haste! Tight timelines, esp. for
• REA Appeal • Leave motion
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• No opportunity for voir – dire
• Foundation Facts?
• Remedy?
• Motion to strike?
• Argument about weight?
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Reports filed directly
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
Excluded only if
Court (Evidence Act)
• What is inadmissible?
Inadmissible under statute
Not reasonably reliable
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
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ERT (R. 183)
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)
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Inadmissible by statute?
• Essential gatekeeper role to keep out unreliable expert evidence, at risk of miscarriages of justice
• Goudge Inquiry
• Daubert
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Where is the gatekeeper?
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.))
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Expert independence?
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.
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Kingsmill v. Niagara
Escarpment Commission
Not tainted by bias or partiality
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
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Alliance to Protect PEC v.
Director, MOE
OMB holdings
Engaging in advocacy
Not a bar
Member of advocacy group that is an appellant
Cannot be qualified as expert witness
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Re: Citizen’s Coalition of
Greater Fort Erie
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
720 Bathurst Street, Suite 204
Toronto, Ontario M5S 2R4
Tel: 416 962 5009 / 416 962 5882
Fax: 416 962 8817
[email protected]
Saxe Law Office
Saxe Law Office