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:
[27] 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 factors:
- 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.”