DOW CHEMICAL CANADA ULC v NOVA CHEMICALS CORPORATION, 2023 ABKB 156
5.34: Service of expert’s report
5.35: Sequence of exchange of experts’ reports
The Court considered several issues arising from a damages hearing, the resolution of which may give rise to the necessity of further evidence or help guide the progression of the hearing.
One of the issues the Court considered was whether evidence given by the Plaintiffs’ expert witness on cross-examination justified a new report from the Defendant’s expert witness. The Court held that cross-examination cannot be used as a foundation for supposedly “responsive expert evidence” on subjects not covered by a responding expert in their report. As such, Romaine J. rejected the Defendant’s submission that its cross-examination of the Plaintiff’s expert on an issue opened the door to new evidence from the defence expert on that issue.
Romaine J. noted that Rules 5.34 and 5.35 require the disclosure of expert reports so that an expert may not testify with respect to an issue, except with leave, unless the substance of their testimony is set out in a report served under the Rules. The purpose of disclosure is to avoid Trial by ambush.
Romaine J. cited Drapaka v Patel, 2013 ABQB 247 and Wade v Baxter, 2001 ABQB 812 for the principle that even if the expert has served a report in compliance with the Rules, the Trial Judge has discretion to ensure a Party is not unfairly taken by surprise by expert evidence on a point that would not have been anticipated from a reading of the report.
Romaine J. held that while there are circumstances in which it may be appropriate for a defence expert to respond to the evidence of a Plaintiff’s expert where the defence expert had not included that information in their report, it would not be appropriate to do so in this case.
In this case, most of the defence expert’s new evidence could not have been anticipated from a reasonable reading of his report. The defence expert testified that some of his evidence was additional analysis related to the testimony of the Plaintiff’s expert. However, the issue arose after the Plaintiff’s expert had issued his report, and therefore he did not specifically refer to the issue in his report. Romaine J. commented that while the right to cross-examine goes beyond the contents of an expert’s report, that does not necessarily allow the Defendant to later examine their own experts in chief on that issue.
Romaine J. further held that the Plaintiff would have been taken by surprise by the contents of the defence expert’s new evidence. While the Plaintiff was aware of the Defendant’s position on the issue and had the opportunity to review the defence expert’s second opinion to the extent that he addressed the issue, the Plaintiff could not have been aware of the new report, with its extensive new opinions.View CanLII Details