Former Supreme Court of Canada Justice Ian Binnie once remarked
on the role of expert witnesses that "the courtroom ... is a
poor school house and dueling experts may make bad
The Ontario Energy Board (OEB) apparently sympathizes, having
become one of the first administrative tribunals in Canada to
introduce rules for expert witness
"hot-tubbing". Hot-tubbing (less colloquially,
termed "concurrent evidence") entails competing expert
witnesses testifying together and being jointly questioned by the
judge/tribunal, counsel and sometimes each other.
confer with each other in advance of the hearing for the
purposes of narrowing issues, identifying points on which their
views differ/agree and preparing joint written statements to be
admissible as evidence at the hearing; and
appear together at the hearing as a concurrent expert panel for
the purposes of answering questions from the Board and others and
commenting on each other's views.
The practice of hot-tubbing originated in Australia and has
incrementally spread to other jurisdictions – notably, it
was recently incorporated into Canada's Federal Court
Proponents of the practice say it increases efficiency by
allowing adjudicators to more easily distil complex technical
matters and pin down areas where experts differ. Perhaps, most
importantly, proponents argue that it discourages experts from
acting as advocates and overstating their opinions –
Justice Binnie observed that "experts testifying in the
presence of one another are likely to be more measured and complete
in their pronouncements, knowing that exaggerations or errors will
be pounced upon instantly by a learned colleague".
Conversely, detractors argue that having competing experts
testify together can devolve into a free for all and, far from
reducing expert partisanship and advocacy, it may actually promote
it by attaching less importance to expertise and placing a premium
on experts' ability to out-debate their colleagues.
The OEB rule amendments are broad and will give OEB panels
significant latitude in deciding how to employ this
practice. Certainly, it will be of great interest to the
sector – and other administrative tribunals in general -
to see how this unfolds.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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