Canada: Expert Evidence At The Environmental Review Tribunal

Last Updated: April 17 2015
Article by Dianne Saxe

Dianne spoke last week at the Ontario Bar Association seminar on Using Environmental Experts Effectively at the Ontario Environmental Review Tribunal. Here is a copy of her presentation: Experts at Environmental Review Tribunal.

In theory, expert evidence at the Tribunal is governed by much the same rules as in the civil and criminal courts, and should be as accurate and reliable. In practice, the Tribunal is more relaxed than the courts about its "gatekeeper" function. It allows in a broader range of "expert" opinion, trusting that concerns about bias, accuracy and reliability can be effectively managed in the process of weighing the evidence.

A knowledgeable attendee praised the session and contributed helpful comments:

"I thought the presentations were excellent and I commend all of the presenters.

But it seems to me that the whole controversy over experts, science, law, regulation and the environment shows the law and science are like oil and water – they just don't mix.  The tragedy is that the law like gas and oil contaminates clean water!! We have at least fifty years (much more I suppose if you take the long view and consider the Scope Monkey Trial) of judges struggling to apply science to disputes that often can't be resolved by the courts.

There are some, like John Swaigen, who have suggested that environmental law is 95% science and 5% law.  I don't necessarily agree but he raises an important point which is this: perhaps the interface between law, experts and science is seriously flawed.

I would argue that we need to turn the paradigm on its head and develop the law-science-applied policy nexus through consensus processes.  The metapolicy underlying many laws doesn't allow for science to evolve and change as per Thomas Kuhn (Structure of Scientific Revolutions, 1962).  It also doesn't reflect the reality as Karl Popper explained that all science can do is disprove a hypothesis.  You can't prove anything in positive terms.

The common law has rules about expert evidence and perhaps eventually the courts could figure out how to promote "ethical and credible hot-tubbing".  Unfortunately most lawyers and judges haven't read Popper, Kant and Kuhn and they don't understand how science progresses.  Indeed, many scientists don't study the philosophy of science either.  So there is a fundamental disconnect.

In the 1980s we used consensus processes to develop durable laws (based on mirror legislation that recognized the interplay between federal and provincial jurisdictions) that continue to be workable and are constantly improved.  These include the TDGA (related to the Mississauga train disaster in 1979) and WHMIS.  The OHSA uses joint health and safety committees every day to apply science around industrial hygiene and accident prevention in an attempt to better protect workers from accidents and hazards.  (It should work better of course.)

The innovative Habitat Protection Policy under the Fisheries Act (1986) also was developed by scientists, policymakers and lawyers working together.  I urged the federal government to include mirror provisions and allow for cooperation and recognition of equivalency with the provinces in both SARA, 2002 and CEPA, 1999.  Science advisory panels like ACES, the Ont. Waste Reduction Advisory Committee (1990-93), and ORTEE all played an important role in filtering science and building a consensus amongst lawyers and scientists.  But of course the types of reports these expert bodies produce can be resented by civil servants and politicians with agendas.  That is why the NRTEE, etc. was decimated by Harper.

Interestingly enough these consensus building processes often are cheap to implement because scientists want to improve and share data and hypothesis.  I was a full member of SETAC between 1990 and 2010 and regularly presented at SETAC conferences. I don't think there were many other lawyers in Canada involved even though this is the largest international body dealing with science and life cycle analysis in the world with between 5 to 10 thousand people regularly attending their international annual conferences.

In other words, my experience is that scientists usually work together as a modus operandi because the emphasis on efficiency and helping to solve problems like contaminated drinking water and protecting watersheds and human health.  Lawyers seem to be interested in solving problems for their clients, and this may not include addressing environmental concerns at all.

Science evolves over decades.  When I was starting my BSc at Trent, mass spectrometry was extremely expensive. Sort of like searching the Quicklaw database in 1984 for $200 per hour.

Trial experts do applied science in many respects, often based on a snapshot of science available in a particular time period.  But science is evolving at a breakneck pace these days.

I would suggest that we can (and perhaps must) use consensus processes to develop durable and practical law reform that allows science to be applied in a systematic and ongoing fashion by credible experts.  The Ontario Building Code now provides flexibility on design to engineers by setting standards on building construction and structures and protection of health rather than dictating methods.  Under the older Code, revisions were constantly necessary as new materials with vastly improved tensile strengths were developed or problems were discovered with lead or even new plastic pipes used for water supplies.

Requiring experts to destroy reports is contrary to good science.  Data and ideas can be lost.  Sometimes ideas in draft reports inform breakthroughs in thinking 20 or even 100 years later.  We still are discovering insights in the notes of giants like Newton, Darwin, Wallace, Einstein,  etc.  I agree with the courts on this and support the Advocates Society policy.

When I worked at MOE on the 3Rs regulations (1991-1994) my managers urged me not to document certain calls or file emails, contrary to FIPPA, so as to prevent problems when hearings about the Interim Waste Authority siting processes and other controversial waste management master plans arose.  Or sleep to prevent the disclosure thru FIPPA of embarrassing policy development flops like the 2010-11 Gas Plant scandal in Ontario.

Drafts reports by senior MOE engineers regularly were shredded when I worked at the MOE in 1980 (sewage system inspector) and the early 1990s on the 3Rs regs.  Then as senior counsel at the ECO I found that the MOE would bury documents or only provide them years after they were requested.  Especially when Norm Sterling was Minister (1997-1999).

The book, A Civil Action by Jonathan Harr (1995), shows the health consequences that arose in Woburn, Mass. (a childhood leukemia cover up) when the US EPA hid its key background documents from Jan Schlictman, the lawyer for the parents.  Talk about a waste of legal resources and human lives.

The Royal Society of Canada should be commissioned to follow up on the book done at the U of Alberta in the last 15 years by Larry Reynolds and others on how to better integrate science, law, and environmental policy.

The solution just isn't about training judges, lawyers and experts.  I think that the OBA could play a valuable role if it convened a small group to start thinking about how to start this process."

David McRobert

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