The Environmental Review Tribunal has granted a request to have
expert witnesses testify via telephone conference call when the
appellants argued that it would be too costly to have them attend
in person, and that videoconferencing was also costly, as well as
prone to technological failure.
In Pitt v. Director, Ministry of the
Environment, 2014 CarswellOnt 3093 (which was ultimately
dismissed) the appellants in an anti-wind appeal sought to have
two experts on skydiving testify via telephone conference call
because they resided in Great Britain and the U.S. The appellants
also argued that due to the technical nature of the evidence to be
given by these witnesses, assessing their demeanour (one of the
main justifications for normally requiring witnesses to testify in
person) would also be less important.
The Tribunal agreed:
 The Tribunal finds that the goal of facilitating and
enhancing access and public participation favours granting the
appellants' request in this case. In this regard, the Tribunal
notes that none of the parties disagreed that video-conferencing
presented technical challenges, thereby raising questions whether
this electronic method of hearing would be sufficiently reliable to
ensure that there would be no disruptions in hearing the testimony
of these witnesses. The witnesses all reside outside Canada at
considerable distances. Although the Tribunal has considered the
Director's concerns regarding the adequacy of the witness
statements, the Director also indicated that counsel for the
appellants was in the process of providing additional information
to address these concerns. Moreover, the concerns addressed appear
to relate more to the sufficiency of the information provided,
rather than credibility concerns that would require the Tribunal to
judge the demeanor of the witness.
In deciding the issue, the Tribunal balanced the following
There is a significant distance the witnesses must travel to
testify in person;
There is consensus, in this case, that video-conferencing is
not a reliable solution; and
The witnesses will provide primarily technical and opinion
evidence where the content of the opinions is more probative of
witness credibility than their demeanor.
In addition, although the approval holder objected to the
request, it was not able to establish that it would suffer
prejudice if the request were to be granted.
To what extent the Tribunal may allow such requests in the
future, however, is not clear. In arriving at its conclusion, the
Tribunal warned that "not every case will warrant proceeding
by TCC only. The Tribunal accepts that a witness should not be
excused from attending at a hearing to testify, simply because the
witness finds it inconvenient to do so."
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