Verville J

5.34: Service of expert’s report
5.35: Sequence of exchange of experts’ reports

Case Summary

The Plaintiff was the president and CEO of the Defendant corporation. He was terminated without cause and claimed payment in lieu of reasonable notice. The Defendant took the position that the Plaintiff had been paid all amounts to which he was entitled pursuant to the contractual terms applicable to his employment.

The Plaintiff advised the Defendant that he was objecting to the admission of certain experts’ reports claiming that they were primary expert reports and that the Defendant had not provided a Form 25, in compliance with Rule 5.34. The reports were received at Trial subject to the Court’s ultimate determination as to admissibility. The Plaintiff argued that the experts were presented by the Defendant as “fact witnesses” and no effort was made by the Defendant to qualify either one as an expert witness. Nevertheless, they purported to give opinion evidence in their reports and at Trial on the valuation issues before the Court. The Defendant took the position that these were not experts’ reports within the meaning of Rule 5.34; rather, they were prepared in the regular course of business as part of the valuation process required under the Defendant’s long term incentive plan (“LTIP”), and pre-dated the litigation.

After reviewing the circumstances, Justice Verville determined that the reports in question were obtained by the Defendant in the course of administering the LTIP for participants. They were admissible at a minimum to explain the basis upon which the Defendants arrived at the value per unit of the LTIP. The Court noted that the Plaintiff had not established any prejudice due to the manner and timing of notice and disclosure of these reports. As a result, the Court admitted the reports.

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