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
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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
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• 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
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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.
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• 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
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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.
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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
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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
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•  “[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
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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
Timing
Reports filed directly
Not bound by Rules of Evidence
PARTICULAR CHALLENGES
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6 15-­‐04-­‐01 • Simultaneous exchange of reports is common
• Haste! Tight timelines, esp. for
• REA Appeal • Leave motion
Saxe Law Office
Timing
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• No opportunity for voir – dire
• Foundation Facts?
• Remedy?
• Motion to strike?
• Argument about weight?
Saxe Law Office
Reports filed directly
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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
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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)
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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?
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• 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?
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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?
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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
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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
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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
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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
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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
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