During the Trial of this matter, the Plaintiffs objected to the admission of two expert opinions from the Defendants’ expert witnesses. First, the Plaintiffs objected to an expert opinion from an expert qualified as a cardiologist in relation to a theory of causation not initially contained in his expert report or rebuttal report. Second, the Plaintiffs objected to evidence regarding turn-around time of a report ordered by a nephrologist.

The Plaintiffs relied on Rules 5.34, 5.35, and 5.38, which expressly deal with requirements in relation to experts’ reports, namely, service of experts’ reports, sequence of exchange of experts’ reports, and the continuing obligation on experts.

The Plaintiffs argued that the cardiologist’s theory on causation did not comply with Rule 5.38, which requires that changes in an expert’s opinion must be disclosed in writing and immediately served on the other parties. Justice Shelley agreed with the Plaintiffs’ interpretation of Rule 5.38: the cardiologist had 12 years to think about the issue of causation, and therefore his development of a new theory on the eve of Trial required more than a vague email sent five days before the Trial commenced. At a minimum, the email ought to have advised that the reason for the change in opinion was that the expert was going to advance a new theory of causation contrary to his prior written opinions. Justice Shelley concluded that permitting this evidence would be prejudicial to the Plaintiffs.

The Plaintiffs similarly objected to the evidence regarding turn-around time of a report on the basis that the expert’s rebuttal report did not comment on the issue and that the evidence was unnecessary since other experts already commented on the issue. Justice Shelley held that introducing this evidence would not prejudice the Plaintiffs for two reasons: (i) the issue regarding the turn-around time of the report was a live issue and the Plaintiffs’ experts had provided their opinion on it, and (ii) the question objected to was in relation to the expert’s personal experience of the turn-around time for receiving such reports while practising as a nephrologist in Alberta in 2000. Therefore, he was not providing a late expert opinion but rather was giving fact evidence. Justice Shelley found that this evidence was factual and not opinion evidence, and concluded that the evidence was admissible.