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LEGAL REPORT/LITIGATION National Energy Board and the Alberta Energy and Utilities Board, we deal with multiple experts all the time. There can be as many as 20 if the application calls for it," explains Lewis Manning of Lawson Lundell LLP in Calgary. "It has to work that way. These are complicated applications with many components. You can't expect one expert to know everything." Manning sees no reason why this prac- tice could not transfer to a court setting. "All you're doing is providing expert testimony at the same time with a view to assisting the decision-making entity." However, he does see that tribunals have some advantages that assist the practice. "In virtually all of the energy tribunals, the rules of evidence do not apply. That very important distinc- tion means that we get a lot of discussion. Also, the utilities framework isn't so much STAY UP TO DATE WITH THE LATEST PENSION LEGISLATION NEW EDITION FEDERAL & ONTARIO PENSION LEGISLATION 2011-2012 CONSULTING EDITOR: SUSAN G. SELLER Get fast, convenient access to: Federal legislation • Pension Benefits Standards Act, 1985 and regulations • Pension Benefits Division Act • Pension Fund Societies Act • Canada Pension Plan Investment Board Act • Garnishment, Attachment and Pension Diversion Act • Applicable provisions of the Income Tax Act and regulations and Ontario pension legislation ORDER # 920588-60796 $129 Softcover approx. 1000 pages May 2011 1920-5880 Ontario legislation • Pension Benefits Act and regulations • Public Service Pension Act • Teachers' Pension Act • Ontario Public Service Employees' Union Pension Act, 1994 Selected forms and guidelines • Office of the Superintendent of Financial Institutions Canada (OSFI) • Canada Revenue Agency (CRA) • Financial Services Commission of Ontario (FSCO) AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.canadalawbook.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK® about determining the truth on the balance of probabilities. It's determining what's in the public interest." He points out that although judges often have the power to seek their own expert advice, it's very sel- dom used, whereas tribunal adjudicators make use of many options for informing themselves on the issues. Daniel Nugent of Webster Hudson & Coombe LLP in Vancouver has recently been involved in one of the first cases using joint experts under new civil rules pro- moting their use. He can see that a panel of experts would make sense in trying to reduce the cost of multiple experts and take the adversarial edge off litigation, the driving force behind the move to use joint experts. "The word everyone's using, which has a very loose definition, is proportional- ity. You can craft that word to advance any case you're presenting." At the Ontario Municipal Board, a meeting of experts takes place as part of procedural meetings before hearing from which they prepare an agreed statement of facts and remaining issues. Recent changes to Ontario's Rules of Civil Procedure also allow for pretrial meetings between oppos- ing sides' experts and Quebec courts allow for similar conferences. "It's a scoping exer- cise," notes Jeffrey Wilker of Thomson Rogers who appears regularly before the OMB. "Frankly as someone who represents municipalities and ratepayers, I would pre- fer to have my experts agree to certain issues before they take the stand. Generally when you put technical experts together, they narrow the issues very appropriately. This allows the trial to be focused and saves time and money." There are also meetings of experts in mediation prior to arbitration. Doug Tupper, a partner at McInnes Cooper in Halifax, describes this as a dog and pony show. "Your expert gives his view, then their expert gives their view, then there's an opportunity for a discussion, without formality." In Nova Scotia's courts, new formal requirements reduce the possibility of any discussions. Expert witnesses now have to prepare reports in a certain format, which includes a certification of indepen- dence. There is no pretrial discovery and the report stands as it is unless the other side chooses to cross-examine. Interaction 44 JULY 2011 www. CANADIAN Lawyermag.com ntitled-3 1 6/10/11 9:34:02 AM