Bulletin – Expert Witnesses – Qualification – Practice Advisory
The AUC released a bulletin advising of a procedural change concerning expert witnesses.
The AUC noted that section 20 of the Alberta Utilities Commission Act provides that the AUC is not bound by the rules of evidence, and that section 76 also allows the AUC to set its rules of practice for hearings and procedures. A historical practice of parties in AUC proceedings has been to qualify witnesses as “experts” in a particular subject matter.
The AUC noted however that it has typically allowed opinion evidence from witnesses regardless of qualification, preferring to leave the value ascribed to such opinion evidence as a question of weight.
The AUC noted that it has recently altered its practice of qualifying witnesses as experts in several oral hearings in the past year as a test, in order to reduce the number of disputes arising over expert designation, while still providing parties the opportunity to address the weight to be given to “expert” testimony, through cross-examination and argument.
The AUC considered that the objectives of regulatory efficiency and protecting procedural fairness allowed this test practice to be extended to all facility, rate and market related oral hearings, with the exception of enforcement proceedings.
The AUC announced therefore that it was changing its practice such that parties no longer needed to qualify witnesses as experts in such proceedings. However, the AUC noted that despite there being no requirement to qualify a witness, the AUC reiterated that parties presenting witnesses should continue to provide curriculum vitae for each witness, and to orally review the qualifications of each witness.
The AUC also noted that the procedural change would not affect the costs claims for experts, as the scale of costs for both experts and consultants are the same, and do not depend on whether a witness is accepted as an expert or not.
