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ARTICLE · 19 JANUARY 2012

Energy Board Jumps In The tub

Stikeman Elliott LLP
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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 teachers".

CanadaEnergy and Natural Resources
Glenn Zacher
Glenn Zacher
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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 teachers". 

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.

The OEB directed this novel arrangement last month in the Canadian Distributed Antenna Systems Coalition case and last week, permanently codified it in amendments to the Board's Rules of Practice and Procedure. The amendments stipulate, among other things, that the Board may require two or more experts to:

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