Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 02, 2025

CASE NO(S).: OLT-23-001031

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Town of Oakville

Request for: Request for Dismissal Without a Hearing

Heard: March 5, 2025, in writing

APPEARANCES:

Parties	Counsel
Town of Oakville	Andrew Biggart
1463292 Ontario Inc. Taylor Rogers	Luke Johnston Michael Nemanic Giouzelin Mutlu

MEMORANDUM OF DECISION DELIVERED BY G.A. CROSER

Link to Order

INTRODUCTION

1On January 13, 2025, a 15-day hearing on the merits of appeals brought pursuant to subsections 22(7) and 34(11) of the Planning Act and subsections 34.1(1) and 33(9) of the Ontario Heritage Act (the “Hearing”) by 1463292 Ontario Inc. and Taylor Rogers (collectively the “Appellant”) commenced. The Appeals concerned the Appellant’s proposed redevelopment of 1020, 1024, 1028, 1032, and 1042 Sixth Line in the Town of Oakville (“Town”).

2During the second week of testimony, allegations of perjury were made by the Town against two expert witnesses retained by the Appellant. This resulted in the adjournment by the Tribunal of the Hearing and a Written Motion (“Motion”) was scheduled to consider what, if any, action should be taken by the Tribunal.

SUMMARY OF EVENTS

3Mr. Eldon Theodore (“Theodore”) was retained by the Appellant and was qualified by the Tribunal to provide expert opinion evidence in Urban Design. At the onset of his testimony, Theodore was taken through his signed Acknowledgement of Expert Duty (“Acknowledgement”). He then went on to provide his examination-in-chief, cross-examination, and redirect on January 13 and 14 respectively. During Theodore’s cross-examination, he was asked questions with respect to the issue of the throat length of a driveway in the proposed development. Theodore answered that he had not considered it and that this was a transportation issue. Mr. Andrew Biggart (“Biggart”), counsel for the Town, acknowledged this and stated that he would pose the questions to the Appellant’s Transportation engineering expert, Mr. Richard Pernicky (“Pernicky”). Pernicky was not present during Theodore’s testimony.

4Subsequently, Pernicky was qualified by the Tribunal on January 22 to provide expert opinion evidence in the area of Transportation Engineering; his Acknowledgement was reviewed prior to his examination-in-chief. During cross-examination, on the issue of the throat length of the driveway, Pernicky disclosed that he had recent email communications with Theodore on this matter. Biggart requested the email exchange, which was initially denied by counsel for the Appellant, who cited litigation privilege. After hearing submissions from both Parties, the Hearing stood down to allow counsel for the Appellant time to seek instructions from their client.

5The Appellant disclosed the three emails sent on January 14 (the “Email Exchange”) to the Tribunal and the Town. When the Hearing resumed, the Town argued that the Email Exchange undermined the integrity of Tribunal proceedings and that the Appeal should be dismissed. The Appellant disagreed, asserting that the inferences drawn by the Town, with respect to the emails, were speculative rather than factual, and that the Town was attempting to engineer a rationale to prematurely dismiss the Appeal.

EMAIL EXCHANGE

6On the evening of January 14, after completing redirect, Theodore emailed Pernicky. (“Email 1”). Pernicky responded to this email approximately one hour after it was sent (“Email 2”). Less than ten minutes after Email 2, Theodore replied to Pernicky’s email (“Email 3”). Counsel for the Appellant were not cc’d on these email communications (“Email Exchange”) and indeed were not aware of its existence until the matter arose during Pernicky’s cross examination on January 22.

7It is unnecessary to include the entire email exchange in this Decision. The following exerts were considered by the Tribunal as central to the issue of whether the exchange breached the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”).

Email 1: Theodore: “I just completed my Urban Design cross examination in this hearing and I advised the lawyer on the other side that we talked and conferred relative to your transportation study. I can’t recall if we did, but for continuity, if asked, you should say yes we did.”

Email 2: Pernicky responded “absolutely we did”

Email 3: Theodore commented on his own cross-examination: “He is going to come after you on visitor parking numbers which I think you know, and something I was not expecting, the appropriateness of the two visitor parking spaces (and possible townhouse driveways) relative to the driveway throat length standard in 3.2.10 of the Livable by Design Manual Part C. Extract below:

I advised that the site design have (sic) been reviewed and deemed appropriate from a transportation perspective, regardless of this standard, which is part of a guideline. Now, out of the box and having reflected on this more, I think it is more applicable to commercial parking lots with significant parking and not townhouse developments.

Anyway, just a friendly heads up.”

Theodore included an attachment from the Livable by Design Manual that included a section under the heading ‘Driveway Throat Length’

EXHIBITS

8The following exhibits were marked:

Exhibit 1: Motion Record of the Town of Oakville

Exhibit 2: Responding Motion Material of Appellant

Exhibit 3: Reply Record of the Town of Oakville

POSITION OF THE TOWN

9The Town’s view is that Theodore committed perjury by making a false statement during his cross-examination, in that Theodore said a meeting had occurred with Pernicky, when in Email 1 he states that he cannot recall if they did. As such, Theodore misled the Tribunal and the email to Pernicky was sent to ensure that Pernicky’s testimony perpetuated the perjury for continuity. With respect to Email 3, the Town’s position is that Theodore gave Pernicky advanced warning of areas upon which Pernicky would likely be cross-examined. Further, Theodore provided a possible answer to a question that differed from the one that he had provided under cross examination. To the Town, this was evidence that Theodore had explained to Pernicky that the Urban Design Guidelines related to the issue of a driveway throat length may not be applicable to the proposed development. Therefore, Theodore “coached” Pernicky as to how the answers that Theodore provided during his cross-examination might be “improved” in support of the Appellant’s case, and as such, Theodore was acting as an advocate for the benefit of his client.

10The Town took exception to the fact that Pernicky did not advise the Tribunal of the Email Exchange during his examination-in-chief, and that it was only during his cross-examination that Pernicky mentioned the email correspondence from Theodore referencing the Urban Design Guidelines. To the Town, it is unclear from Email 2 whether Pernicky was confirming that a meeting between himself and Theodore actually took place or whether his statement “absolutely we did” was to confirm that he was willing to support Theodore’s testimony, no matter what. The Town submits that Pernicky’s testimony is “tainted” as a result of the Email Exchange.

11It is the Town’s position that the consequence of the ‘improper conduct’ noted above is that the entire Hearing has been tainted and that the appeal should be dismissed. In the alternative, the testimony and witness statements of Theodore and Pernicky should be struck and deemed inadmissible by the Tribunal, without leave of the Appellant to call new experts. In the Town’s view, without the evidence of Theodore and Pernicky, the Appellant will be unable to satisfy that the statutory and policy tests necessary to obtain approval for this proposal or provide evidence necessary to address all the issues within the Procedural Order, and thus the appeal will have no reasonable prospect of success and should be dismissed.

POSITION OF THE APPELLANT

12The Appellant takes the position that the Tribunal does not have the jurisdiction to determine that an expert witness has committed the criminal offence of perjury and with no precedent of similar allegations ever being adjudicated by the Tribunal. The Appellant submits that the Town had not provided clear, convincing, and corroborated evidence that either Theodore or Pernicky committed the criminal offence of perjury, which is found at s.131(1) of the Criminal Code of Canada (“Criminal Code”). To the Appellant, the Town’s inference that a “quick, casual, and unfiltered” email exchange proved the commission of perjury, was speculative rather than factual and that there were several viable alternative interpretations of the Email Exchange.

13The Appellant pointed out that there is no prohibition on experts conferring during a Tribunal hearing, save and except for the limitations found in the Acknowledgement and Rule 7.5. Furthermore, the Hearing was not a ‘closed event’; experts and observers were free to log in and out at any time to view parts of the hearing. It is not contrary to any Tribunal Rules to give a ‘heads-up’ to an expert who has not yet testified on the type of questions they can expect to receive. The Appellant noted that in this instance, Biggart himself stated during Theodore’s testimony that he would be asking Pernicky questions with respect to driveway throat length.

14The Appellant requested that the Motion be dismissed. In the alternative, the Appellant requested that the Tribunal determine whether the evidence of Theodore or Pernicky should be excluded in full or on part, based on their capacity to act as expert witnesses as per the requirements stated in the 2015 Supreme Court Decision, White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 (“White v Abbott”), and the Tribunal’s general practices and procedures; or, alternatively, to strike the testimony of Theodore and Pernicky and provide the Appellant with leave to file new witness statements and receive testimony from other experts in the areas of urban design and transportation engineering.

ISSUES

15The following issues were considered by the Tribunal:

1. Can the Tribunal make a ruling on an accusation of perjury made during a hearing event?

2. Does the Email Exchange constitute improper conduct that impairs the independence and impartiality of the expert witnesses?

3. Does the Email Exchange breach Rule 7.5 of the Tribunal Rules?

Issue 1: Can the Tribunal make a ruling on an accusation of perjury made during a hearing event?

16The offence of perjury is found in Part IV of the Criminal Code which is entitled “Offences Against the Administration of Law and Justice”. In the definition section for Part IV, subsection 118(e) states that a ‘judicial proceeding’ includes “a tribunal by which a legal right or legal liability may be established.” Section 131 of the Criminal Code reads as follows:

Misleading Justice

Perjury

131(1) Subject to subsection (3), every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.

Idem

(2) Subsection (1) applies, whether or not a statement referred to in that subsection is made in a judicial proceeding.

17The Town listed the elements of perjury as follows:

a. The person made a false statement under oath or solemn declaration;

b. The person knew the statement was false when it was made; and

c. The person made the false statement intending to mislead the court.

18The Town’s argument was that Theodore made a false statement while under oath and then later admitted in writing that the statement was false. In the Email Exchange, Theodore counselled Pernicky to perpetuate the perjury.

19The Appellant argued that as a ‘statutory creature’, the Tribunal’s area of jurisdiction is established through its enacting legislation. Consequently, the Tribunal lacks the authority or jurisdiction to make findings on perjury which, as the Appellant emphasized, is an indictable offence and liable to imprisonment of up to 14 years. In support of its position that the Tribunal has no jurisdiction with respect to perjury claims, the Appellant referenced a Case Management Conference Decision of the Tribunal. In Burdett v Niagara Falls (City), 2022 CanLII 56268, Member Chipman noted that the grounds of the motion presented, which included an allegation of perjury, were “outside the jurisdiction of the Tribunal”.

20While the Appellant’s Factum was replete with the fact that perjury is an offence found in the Criminal Code, the Town’s Factum made little reference to this point or how the offence could be managed within an administrative tribunal setting. Even the Town’s Reply made no attempt to directly counter the Appellant’s argument that a finding of perjury was beyond the Tribunal’s jurisdiction.

21The Town argued that the Tribunal has the jurisdiction to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by the Ontario Land Tribunal Act (“OLTA”) or any other Act as found at section 8(1) and 8(2) of the OLTA. As such, the Tribunal has the authority to determine whether a witness qualifies as an expert witness and whether the Tribunal is prepared to permit the evidence of that witness.

Tribunal Findings and Analysis

22The Tribunal acknowledges the Appellant’s point that perjury is a serious accusation but disagrees that experts appearing before an administrative tribunal are incapable of such an offence. As noted by the Town, section 8 of the OLT sets out the Tribunal’s jurisdiction and powers, s.8(2) reads as follows:

The Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act.

23This Member is of the view that there is an important distinction between an administrative tribunal finding that perjury has occurred and a prosecution for perjury. In support of this interpretation, as noted in paragraph [16], ‘judicial proceedings’ where the offence of perjury may occur includes an administrative tribunal setting. However, the Tribunal is not the appropriate vehicle to direct a criminal prosecution; that must be pursued through the Superior Court of Justice.

24The Tribunal accepts Theodore’s Affidavit evidence that during cross examination he answered truthfully as to his prior communication with Pernicky about the transportation study. The Tribunal accepts that it was only after his testimony was finished and he considered his answers, that he second-guessed himself and reached out to Pernicky. As such, the Tribunal finds that the Town’s claim of perjury against Theodore for his answer during cross-examination has not been met and that Theodore intended to provide a truthful statement that was intended to inform, rather than mislead, the Tribunal.

25The Town’s Notice of Motion states at paragraph 30 that there “is no evidence of Mr. Pernicky committing perjury”, the Tribunal agrees.

26The Tribunal is of the view that Pernicky answered his questions both in examination-in-chief and cross-examination in a forthright manner. Although the Town questions why Pernicky did not immediately bring up the fact that he had email correspondence with Theodore at the onset of his examination-in-chief, the Tribunal sees no attempt to mislead it. When the question was put to him, Pernicky admitted that he had received email correspondence from Theodore referencing the Urban Design Guidelines. The Tribunal accepts Pernicky’s Affidavit evidence that his statement in Email 2 of “absolutely we did” with respect to meeting with Theodore, was a confirmation that a meeting had, in fact, taken place.

27When read with sections 131, 21, and 22 of the Criminal Code, it collectively provides that it is an offence for a witness to suborn or ‘persuade’ another witness to commit perjury. The Tribunal is troubled that Theodore, an experienced expert who mentors Ontario Professional Planners Institute pre-candidates, would direct Pernicky in Email 1 “for the sake of continuity” to state, if asked, during his oral testimony, that a discussion had taken place between the two, even if it had not. While the Appellant argues that there are several ways it could be interpreted, the phrasing appears inconsistent with the explanation that Theodore was merely seeking confirmation or clarification. However, as pointed out by the Appellant, the criminal standard of proven beyond a reasonable doubt is the only relevant threshold for perjury. Although the Tribunal decides motions and hearings on the balance of probabilities, there is no civil standard for perjury. While the Tribunal is of the view that Theodore’s phrasing was inappropriate, it does not meet the standard required for perjury or suborning of perjury.

Issue 2: Does the Email Exchange constitute improper conduct that impairs the independence and impartiality of the expert witnesses?

28In the Town’s Reply to the Appellant’s Responding Motion Record, the Town argued that the Tribunal need not make a finding that Theodore committed perjury to exclude his testimony. The Town submitted that the obligations of expert witnesses with respect to integrity and impartiality go beyond the simple requirement of telling the truth while under oath. It was the Town submission that Theodore wrote to Pernicky “for one reason: to tell Pernicky to perpetuate the lie” that Theodore told. As such, the Town states that Theodore did not act as an independent, objective, and unbiased witness. He acted as an advocate and, as such, his evidence should be excluded. The Town’s Factum goes on to argue that Pernicky’s evidence “was tainted through his correspondence with” Theodore and that as such, his evidence “cannot be seen to be an independent product uninfluenced by the exigencies of litigation”. The Town asserts that the Email Exchange “clearly prejudices the Town’s ability to cross-examine Mr. Pernicky due to his lack of impartiality and the interference with his formation of an independent opinion”.

29The Town also referenced a 2022 Tribunal Decision of Member Taylor, where the Member excluded an expert witness from testifying due to a finding that their witness statement described their public perception as an advocate and not as an independent, objective, and impartial expert witness (Community Voices of Fort Erie v Fort Erie (Town), (“Community Voices of Fort Erie”), 2022 CanLII 48577). The Town called on the Tribunal to exercise its ‘gatekeeper’ function as, in its view, “the probative value of any evidence offered by Mr. Theodore is overborne by its prejudicial effect”, owing to Theodore’s attempt to collude with Pernicky to tailor evidence.

30The Appellant submits that the exclusion of expert evidence in its entirety is a rare and exceptional relief that is reserved for the most serious of cases. It was noted that both Theodore and Pernicky clarified in their Affidavits that there was nothing in the Email Exchange that affected independence or their expert opinions as it relates to urban design and transportation engineering opinion evidence, respectively.

31The Appellant asserts that the Town has adopted a “self-serving interpretation of the email correspondence” between Theodore and Pernicky, and that the Town has provided no evidence to substantiate its claim that Theodore was acting as an advocate or that he somehow lacks independence. In support of this position, the Appellant cited The Law of Evidence in Canada (6th ed) and Capocci v York Catholic District School Board, 2009 HRTO 1959 (also cited by the Town) to state that the exclusion of witnesses is not done to preserve their independence; instead, it is a practice adopted by the Courts in accordance with their relevant rules of practice and procedure to improve the potential effectiveness of cross-examination, providing additional ‘fairness’ to the opposing party. Lastly, the Appellant made the point that the admission of Theodore and Pernicky’s evidence imposes no prejudice upon the Town, and that the admission of their respective evidence will allow the Tribunal to make the most fair, expeditious, cost-effective, and just decision of this Hearing, on its merits.

Tribunal Findings and Analysis

32In White v Abbott, a decision cited by both Parties, the Supreme Court did not exclude the expert evidence of an expert witness that had relied upon the work of other professionals to reach their own conclusion. Justice Cromwell (“Cromwell”), who wrote the Decision, held that an expert must be fair, objective, and impartial, and the threshold for admissibility flows from this duty. Cromwell also noted that an expert’s lack of independence and impartiality went to the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted. With the result that should a portion of an expert’s evidence be tainted by a lack of independence or impartiality, then it should be excluded. Cromwell also noted an additional “gatekeeper” function that the court possesses:

“…in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect…At this second gatekeeping step… the judge balances the potential risks and benefits of admitting evidence in order to decide whether the potential benefits justify the risks.”

33To the Appellant, the facts of White v Abbott are analogous to this Motion, where it was alleged that a communication between experts constitutes a breach of an expert’s duty. As noted by the Appellant, the Hearing was open to the public; experts and observers were free to log in and out at any time to view parts of the Hearing, which they did. Pernicky could have learned about Biggart’s questioning of Theodore on driveway throat length from anyone that attended the Hearing on January 14. The fact that Theodore highlighted an area of questioning that Pernicky should expect on cross-examination should not surprise the Town, given the fact that Biggart signalled his intention to do so during Theodore’s cross-examination. The Tribunal disagrees with the Town’s position that the Email Exchange prejudiced the Town’s ability to cross-examine Pernicky. If prejudice exists, then it is incredibly minor given that, as stated in Theodore and Pernicky’s Affidavits, Pernicky was already aware that standard throat length considerations would be in issue at the Hearing. The Tribunal does not find that Pernicky’s independent expert opinion on the issue of driveway throat length was impacted by Theodore’s commentary. Nor does the Tribunal agree that Theodore’s emails interfered with Pernicky’s ability to form an independent opinion.

34The Town framed Email 3 as Theodore “coaching Mr. Pernicky to provide an answer that differed from Mr. Theodore’s own evidence while under cross-examination”. However, the Tribunal accepts Pernicky’s Affidavit evidence that he did not interpret the Email Exchange as a direction to give any specific evidence, nor did it have an impact upon his expert opinion regarding the two visitor parking spaces encroaching into the clear throat or his opinion on throat length transportation engineering standards. There is no evidence that Pernicky colluded with Theodore to mislead the Tribunal.

35The Tribunal finds that it would necessitate a very strained interpretation of the Email Exchange to paint Theodore’s actions as that of an advocate or impacting his ability to provide independent evidence. The Tribunal accepts the Appellant’s submission that there is no basis in law or fact for the Tribunal to determine that Theodore lacks the requisite independence and impartiality to be a properly qualified witness. Given the fact that the experts were not prohibited from communicating on the evening of January 14, the Tribunal disagrees with the Town’s characterization of Theodore’s commentary on driveway throat length as advocacy.

36The Tribunal finds that the Email Exchange does not alter Theodore and Pernicky’s status as independent and impartial witnesses.

Issue 3: Does the email exchange breach Rule 7.5 of the Tribunal Rules?

37The Town’s view is that experts are supposed to behave as experts, meaning that they are not generally subject to an exclusion order during a Hearing as they are trusted to provide independent assistance to the Tribunal by way of objective unbiased opinion evidence. The Town argues that Theodore and Pernicky failed to abide by their duties under Rule 7.5 of the Tribunal Rules which address the obligations and duties of expert witnesses. It is the position of the Town that the emailing by Theodore to Pernicky of the extract of the Urban Design Guidelines and his unsolicited commentary to Pernicky was “coaching and that action is a violation of his duty as an expert before the Tribunal”.

38The Appellant states that the Town incorrectly states as a fact that Theodore was attempting to improperly give Pernicky a new and different answer to a question posed to Theodore during his cross-examination. It was argued by the Appellant that there was “no air of reality to this strained inference”. The same is true, the Appellant notes, for the Town’s allegations of “impropriety” given that, at the time of the Email Exchange, Theodore had concluded his cross-examination and Pernicky had not yet begun. Thus, Theodore’s evidence should remain as part of the Hearing record as there is no evidence that his opinion evidence was not fair, objective and non-partisan. The Appellant highlighted the fact that there was no exclusion order preventing expert witnesses from observing the testimony of others at the Hearing, and that communications between experts during a hearing is commonplace. Further, the Appellant pointed to the Affidavit of Pernicky, which stated that his expert opinion evidence was not swayed or altered by Theodore’s emails, nor did he interpret the content of same as directing him to do so.

Tribunal Findings and Analysis

39As noted above, Theodore and Pernicky were both taken through the Acknowledgement at the commencement of their respective testimonies. This is not a ‘checkbox activity’ and should not be treated as such. An expert’s affirmation of the Acknowledgement at a hearing event, which is open to the public, highlights that while it may be an adversarial proceeding, the expert’s duty is owed to the Tribunal and not the Party who retained the expert. Rule 7.5 sets out the duty of an expert witness:

It is the duty of every expert engaged by or on behalf of a party who is to provide opinion evidence at a proceeding under these Rules to acknowledge, either prior to (by signing the acknowledgment form attached to the Rules) or at the proceeding, that they are to:

a. provide opinion evidence that is fair, objective and non-partisan;

b. provide opinion evidence that is related only to the matters that are within the expert’s area of expertise;

c. provide such additional assistance as the Tribunal may reasonably require to determine a matter in issue;

d. not to seek or receive assistance or communication from any third party, except technical support, while giving oral evidence in examination in chief, while under cross-examination, or while in reply; and

e. acknowledge that these duties prevail over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.

40Point (a) provides a succinct statement of the expert’s duty to the Tribunal, and the last sentence of the Acknowledgement makes it explicit that the expert’s duty to the Tribunal supersedes that of the retainer with the client. In its submissions, the Town referenced Community Voices of Fort Erie, noting that the Tribunal has recognized that an expert who assumes the role of advocate clearly demonstrates their unwillingness to carry out the primary duty to the court, that being to provide evidence that is fair, objective, and non-partisan. In Community Voices of Fort Erie, an expert, who was acting pro bono, self-identified in their witness statement as an advocate to protect wetlands and wildlife. Member Taylor noted that the expert’s advocacy did not have the hallmark of objectivity and that the expert did not attempt to dispute or qualify this in their witness statement. When considering whether the evidence should be excluded or allow it to go to weight, Member Taylor found that he was not satisfied that the witness could provide opinion evidence that met Tribunal requirements and so the expert opinion evidence was excluded.

41The Tribunal has already found that Theodore’s email communications did not reach the standard of advocacy. Unlike the expert in Community Voices of Fort Erie, a self-described advocate of the environmental matters, Theodore was adamant in his Affidavit evidence that his testimony and subsequent actions did not fall short of Rule 7.5. While the Town submits that Theodore lied while testifying to make him appear as if he had conducted his due diligence and to help his client succeed in its appeal, the Tribunal finds no factual basis for this accusation. The Town alternatively described Theodore’s actions as “coaching” Pernicky, and that this violated his oath to remain non-partisan. While Theodore’s comment about “continuity” in Email 1 may have been self-serving, there is no evidence of actual prejudice. It did not impact Theodore’s previously given testimony and did not taint Pernicky’s subsequent oral evidence. Although the Town questions the credibility of these two experts, the Tribunal is bereft of supporting evidence other than the Town’s own interpretation of events.

42With respect to whether the Email Exchange impacts fairness vis-à-vis the Town, the Tribunal finds that the Town’s ability to continue its cross-examination of Pernicky has not been prejudiced by the Email Exchange, given the fact that Theodore was released from the Acknowledgement when he emailed Pernicky, and that Pernicky could have learned about a line of questioning on the issue of driveway throat length from anyone who observed the hearing on January 14. The Tribunal notes that driveway throat length was not an area of Theodore’s expertise in this Hearing and he did not opine on this matter to the Tribunal. The Tribunal finds that Theodore’s oral testimony was given honestly and reflected his objective assessment of the questions posed to him by counsel for the Appellant and Biggart. The Tribunal finds that Theodore’s unsolicited commentary on this issue in Email 3 was not designed or intended to sway or alter Pernicky’s expert opinion or constituted a breach of Rule 7.5.

43It was not Theodore’s place to suggest to Pernicky that there should be continuity with respect to whether or not the two experts met and discussed the issue in question. It was for counsel to address and test in oral evidence, and for the Tribunal to determine what, if any, significance or weight should be attached to any disconnect between the experts’ testimony. With that said, the Tribunal does not agree with the Town that Theodore’s remark created a level of prejudice to the Town that should result in the dismissal of the appeal or that the evidence of the two experts should be struck.

44The Tribunal finds that the Email Exchange did not influence Pernicky’s assessment of the driveway throat length issue. The Tribunal accepts that Pernicky’s expert opinion on this matter was uninfluenced by Theodore or the Appellant, and that as an experienced expert, his views were unbiased in that they did not favour one party over the other.

45Tribunal finds that the Email Exchange between Theodore and Pernicky did not result in either breaching their respective Acknowledgements.

CONCLUSION

46The Tribunal has the authority to make determinations on all aspects of appeals that fall within its jurisdiction. Rules 1.4 and 1.6 of the Tribunal Rules frame the Tribunal’s mandate, which is to ensure the fair, effective, and efficient resolution of the matters brought before it. The Tribunal’s accountability mechanism for addressing findings of inappropriate conduct in a hearing are framed by these Rules that are applicable to all aspects of all appeals. While the Appellant rightly points out that prosecuting for perjury is beyond the Tribunal’s jurisdiction, acting on improper conduct during a hearing event is firmly within the Tribunal’s purview.

47The Tribunal requires expert witnesses to provide opinion evidence that is fair, objective and nonpartisan. This is set out in Rule 7.5 and re-iterated in the Acknowledgement that all Experts must review and sign before providing testimony at a hearing event. While this may seem at odds with the often-adversarial nature of proceedings, expert testimony plays a central role in the Tribunal’s decision-making process. While retained by a Party to a proceeding, the Tribunal relies on the expert’s knowledge and independent analysis in assisting its decision-making process.

48The exclusion of expert evidence is an exceptional remedy that is employed in the most severe circumstances. In this matter, the Tribunal has considered whether the actions of the two experts in question have created a prejudice to the Town that cannot be addressed or remedied. It was not Theodore’s role to suggest to Pernicky that there should be continuity with respect to whether or not the two experts met and discussed the issue in question, that was for counsel to address and test in oral evidence, and the Tribunal to determine what, if any, significance or weight should be attached to any disconnect between the experts’ testimony. An expert must not advocate for their client, nor must they attempt to shore up their own testimony while the hearing is ongoing.

49In this instance, the Tribunal finds that there were no breaches of Rule 7.5, and no discernable prejudice to the Town by resuming the hearing. The Tribunal is experienced in considering and weighing expert evidence. The admission of Theodore and Pernicky’s evidence will not waste time or distract the Tribunal from deciding the real matters at issue. To the contrary, the admission of their expert evidence will assist the Tribunal in reaching the most fair, expeditious, cost-effective, and just decision of this hearing on its merits.

50Theodore’s witness statement and oral testimony to-date will remain as part of the Hearing record and Theodore is not excluded from providing any Reply evidence, if required by the Appellant. Pernicky’s witness statement and oral testimony to-date will remain as part of the Hearing record, and he is expected to resume his cross-examination by the Town when the Hearing resumes.

COSTS

51While the Appellant has been successful in this Motion, the Tribunal will not be awarding costs. This was a novel matter, and the Tribunal disagrees with the Appellant’s characterization of the Town’s Motion as frivolous and vexatious. Theodore’s comment with respect to “continuity” was ill-advised, and although nothing of substance turned on that point, an expert must be cognizant of their duties owed to the Tribunal and the requirement that they remain non-partisan.

ORDER

52THE TRIBUNAL ORDERS THAT the motion to dismiss the Appeals of 1463292 Ontario Inc. and Taylor Rogers is denied.

53The Parties are ordered to schedule the remainder of the Hearing dates.

54The Member is seized.

“G.A. Croser”

G.A. CROSER Member Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.