Effective Date:  October 11th, 2017          

Number: 2

Practice Direction:  Default Format of Specific Motion Hearings

Direction:

Unless otherwise directed by TLAB, where a Party requests a date to file a Motion for a Written or Electronic Hearing (telephone or video conference) or the adjournment of a Hearing Date, or both, TLAB will treat and require the request to be conducted as a written Motion.  The Party will be provided with a date for a Written Hearing motion for service. In the case of a Hearing Date adjournment request, the TLAB shall supply alternative hearing dates and the parties shall indicate their availability for those dates, in the event that the Motion may be granted. The default form of Hearing for these two specific Motion requests will not be Oral, as specified in Rule 17.3. The timeline for Motion responses outlined in the Rules for Motions will apply.

Approved by the Toronto Local Appeal Body this 11TH day of October, 2017.

Ian James Lord

Chair

Effective Date:  October 11th, 2017                

Number:  4

Practice Direction:  Video Evidence

 Direction:

On the approval of the presiding Member, video material that has been disclosed and identified, and served in accordance with the Rules may be presented at a TLAB hearing, subject to relevance. Due to current technical constraints, video material cannot be made available to the public on the Application Information Centre website. Access to video material may be made available upon appointment to the TLAB office.

Persons tendering video material who do not bring their own equipment are responsible to ensure that the video material is stored and retrievable in standard media file format (eg. AVI, MP4, MKV).

Approved by the Toronto Local Appeal Body this 11th day of October, 2017.

Ian James Lord

Chair

Effective Date: October 11, 2017                            

Number: 5

Practice Direction:  Service of Physical Documents for People Who Cannot Communicate Electronically

Direction:

A physical copy of any submission must be served on all Parties who cannot communicate electronically.  Likewise, all Parties and Participants who cannot communicate electronically must serve physical copies of any submission on all Parties and TLAB.

The due dates as outlined in TLAB’s Rules of Practice and Procedure continue to apply.  As such, service to be on time has to respect delays inherent in service.  The Date of Service is deemed to be four (4) days after the date of mailing.

An Affidavit (Form 10) must be completed attesting to the method and timing of service.  This must be filed with TLAB in a timely fashion for public posting.

Service requirements under Section 3 of TLAB’s Rules of Practice and Procedure continue to apply for all those with an email address.

Approved by the Toronto Local Appeal Body this 11th day of October, 2017.

Ian James Lord

Chair

Effective Date: May 26, 2020                            

Number: 6

Practice Direction:  Expert Witnesses

Direction:

 

Who is an Expert?

An expert is a person who may, with approval of the presiding Member, give opinion evidence before the TLAB.

Generally, opinions are not proper evidence in a court or tribunal and thus an expert’s testimony is an exception to this general rule.

Experts do not need to have a particular degree or designation; they do not need to belong to a college or adhere to a formal Code of Conduct, in order to be an expert. An expert may be someone who has relevant:

•       Skill;

•       Knowledge;

•       Training;

•       Expertise;

•       Certification; and or

•       Education

with respect to a matter in issue before the TLAB. To determine whether an expert is needed, the TLAB Member hearing a matter may first consider whether an expert is needed at all. For example, an expert isn’t generally needed for things that would reasonably be expected to be within the knowledge and experience of an average person. If, however, the issue is one which might be outside of a person’s common range of knowledge or experience, and may assist the TLAB in resolving the matter before it, the Member may permit an expert to give his or her opinion to the TLAB.

 

Qualifying an Expert before the TLAB

Parties are permitted to ask questions of a proposed expert, and to make submissions, prior to an expert being qualified to give expert opinion evidence.  An opposing Party might, for instance, wish to ask questions regarding the proposed expert’s qualifications or experience, or make submissions with respect to whether the expert’s proposed testimony is needed at all, in order for the TLAB to justly determine the issues in dispute.

If a Party intends to challenge or raise issues with respect to the impartiality of a proposed expert, or to suggest potential biases, for example, it is good practice to consider providing an opposing Party with advance notice of the intention to do so. This can avoid potential delays and disruption to the process and to the Parties’ expected plan for that day’s appearance before the TLAB.

At the end of this qualification process the TLAB Member will make a decision as to whether to allow the proposed expert to give opinion evidence and will identify and define the expert’s area of expertise for the proceeding.

 

Expert’s Duties

Experts have certain duties when appearing before the TLAB. These are expressed in the TLAB’s Acknowledgement of Expert’s Duty Form, which must be signed and dated by each proposed expert, prior to appearing before the TLAB.

The duties of an expert include:

•       Providing evidence that is fair, objective and non-partisan;

•       Providing opinion evidence that is related only to the matters that are within his or her expertise; and,

•       Providing such additional assistance as the TLAB may reasonably require to determine a matter in issue.

And, when asked by a Member to provide additional information by way of undertaking, experts should fulfill such undertakings to the best of their abilities, forthwith.

An expert is not deployed to tell a TLAB Member how to rule on an issue. Rather, the expert is tendered by a Party in order to assist a Member in understanding technical or difficult matters outside of one’s expected breadth and depth of knowledge or experience. An expert is therefore expected to render his or her opinion in an unbiased, dispassionate, helpful, and assistive manner. They are not “hired guns”.

 

Local Knowledge Experts?

Before the TLAB certain persons have, from time to time, been recognized as “local knowledge experts”. This is not a traditional field of expertise like planning, or hydrogeology, for example. Persons with significant experience in a particular local area of the City of Toronto can, in appropriate circumstances, be qualified as an expert. For instance, a person may have significant knowledge of an area’s history, its people, or other facets of the community that are relevant to an issue before the TLAB.

Provided these persons can provide expert, non-partisan, dispassionate, helpful and relevant facts to the TLAB Member, they may be qualified as an expert.

 

How Much Weight is Given to Experts?

It is always up to the TLAB Member hearing from a qualified expert to decide how much weight he or she is going to accord the evidence. Factors that might impact the weight given to an expert’s testimony could be its usefulness or relevance to the issues in dispute, any detected bias, or the evidence’s quality, when compared to the evidence of other witnesses.

Experts are not necessarily accorded “extra” weight simply because they are experts; however, nor is an expert’s evidence simply to be discounted, either. Each Member must turn his or her mind to this issue, with respect to every witness – lay or expert.

 

Summonsing an Expert

There may be times when a Party wishes to summons (formally require) a potential expert witness to attend before the TLAB. In rare instances where it is not reasonable for the summonsing Party to obtain an Expert Witness Statement prior to that witness’ expected attendance (because, for example, the summonsed witness is adverse in interest to the summonsing Party) a Party may dispense with the requirement to serve and file an Expert Witness Statement.   A summonsing Party, however, must still comply with the Rules relating to summonsing, including the requirement to set out in a Request to Summons the issues and evidence the witness is expected to address, and explain the relevance of that evidence with respect to the issues in dispute.

 

Consider the Following

While not required, the following things are worth considering, when potentially hiring an Expert:

 

Share an Expert (i.e. Joint Expert(s))

Parties may wish to consider whether there is an opportunity to “share” an expert. There may be times where assistance on a technical or scientific matter, for instance, will be of equal importance to one or perhaps all Parties. Nothing prevents Parties from agreeing to jointly tender an expert, when doing so will assist the Parties, and assist the TLAB, in arriving at a just conclusion of the matters in dispute.

 

Narrow the Issues in Dispute

Parties may wish to consider whether having their proposed experts meet might result in a narrowing of the total number of issues in dispute. Alternatively, Parties may wish to have their experts discuss whether certain facts can be agreed upon, and discuss where their divergence in expert opinion occurs. Doing so can sometimes result in a shorter, more focused and efficient hearing.