In our August 29, 2014, blog, we outlined a favourable outcome in a case in which we were environmental experts. In the end, our client was awarded over $4.5 million. In this case, the environmental expert for the opposing side lacked a disciplined approach to understanding the environmental contaminants.
In an environmental case and subsequent ruling in British Columbia (BC), lacking a disciplined approach was the least of the problems.
Environmental Appeals Board Ruling
The ruling came last September (2014), and the attention it received was not so much because of the environmental contaminants involved, but what happened during the court proceedings.
First, some background from the BC Environmental Appeals Board (EAB) ruling:
The Vancouver Fraser Port Authority (the “Port”), Fibreco Export Inc. and 602534 BC Ltd. (collectively “Fibreco”), and the Director, Environmental Management Act (the “Director”), each applied to the Board for an order for costs against the Appellant, Seaspan ULC (“Seaspan”). The costs applications relate to Seaspan’s appeals of two decisions issued by the Director in relation to a contaminated site.
One of Seaspan’s appeals concerned a remediation order (the “Order”) that identified Seaspan and Domtar Inc. as “responsible persons” under the Act, with respect to five contaminated parcels of land (the “Site”). The parcels of land are located on or near the Burrard Inlet, and are referred to in the decision as parcels A, B, C, D, and E.Seaspan appealed the Order on multiple grounds, which changed and were modified over the course of the appeal process. One of these grounds stated that Seaspan was not a “responsible person” with respect to some or all of parcels B, D, and E, referred to collectively in the decision as the “Western Front”. In support of this position, Seaspan relied on an expert report.
“Fatally Flawed” Environmental Report
This is where it becomes interesting because, according to the EAB, when Seaspan’s expert was cross-examined, the expert “made concessions, admitted errors, and changed his evidence such that his report was shown to be fatally flawed.”
This was probably not exactly what Seaspan’s legal counsel had anticipated from their expert. After the second day of the hearing, Seaspan elected not to re-examine its expert and largely abandoned its appeals.
Fibreco and the Director (the applicants), not pleased that they had spent time and money preparing for the hearing that was quickly abandoned, filed cost applications with the board. According to the official record, “The Applicants sought costs on the grounds that the Seaspan’s appeals were manifestly deficient and without merit. They asserted that the meritless appeals, combined with the issues arising from the evidence of Seaspan’s expert, warranted an order of costs under section 95(2)(a) of the Act.”
In considering whether Seaspan would be required to pay the costs, the Board stated the “flaws in Seaspan’s expert evidence reflected more than a mere error or ‘a bad day’ on the witness stand.” The expert’s report was found to be “deceptive and fundamentally and irredeemably flawed” (emphasis added). The Board concluded that Seaspan’s case was more than doubtful; it was “hopeless,” and the hearing should never have been pursued.
Seaspan, not surprisingly, was ordered to pay for the costs associated with the case.
Evaluating Environmental Experts
As this case points out, finding and retaining an expert for a case isn’t about finding a firm that “provides” expert services. Rather, it’s about finding a firm whose “operating philosophy” is founded on a basis on which they can provide expert services. It’s one of the reasons we are so adamant about every detail of an environmental investigation, from the field work to the final report – because you never know when an investigation will end up in the courts.
Finally, to avoid your own Seaspan surprise, as you vet the individual testifying expert, don’t limit your review to a cursory review of their resume. Interview the references they provide as if you were hiring them for a job… because you are.
If you have a question about an environmental matter, including expert services, contact Chris Paré, P.Geo (cpare@dragun.com) at 519-979-7300.