1.2: Purpose and intention of these rules
5.36: Objection to expert’s report
5.37: Questioning experts before trial
5.38: Continuing obligation on expert
5.39: Use of expert’s report at trial without expert
13.6: Pleadings: general requirements

Case Summary

The Action was under Case Management by Justice Miller. In 2017, His Lordship had considered an Application by the Plaintiff for a Jury Trial and declined to make a definitive ruling. While the case at that time was too complex to proceed by way of Jury Trial, Justice Miller noted that “‘complex litigation’ can be streamlined and thereby make complex trials amenable for a jury.” Specifically, Rules 5.36 to 5.39 respecting experts and their reports were identified to assist with simplifying the expert evidence.

At the time of the subject Application, Justice Miller was asked to reconsider the Plaintiff’s request for a Jury Trial. The Plaintiff had not attempted to simplify expert evidence through resort to Rules 5.36 to 5.39, but instead brought a request for a procedural Order directing a conference among competing expert witnesses so as to narrow and clarify the issues in dispute. Such an Order was purportedly available under the Federal Rules of Court, and, it was argued, could be invoked through the discretion inherent in the Foundational Rules. The Court declined to order the conference of experts, and given the failure to simplify the case as previously suggested by the Court, the Application for a Jury Trial was also dismissed.

The Plaintiff also sought leave to allow substantial changes to the Amended Amended Statement of Claim. The Defendants had raised several arguments against amendment, the most general of which alleged a failure to adhere to Rules 1.2 and 13.6(1)(a) requiring succinctness in pleadings. The Court found sufficient succinctness and dismissed this argument.

The Defendants further argued that the amendments were either hopeless or seriously prejudicial, and therefore were established exceptions to the otherwise low threshold for permitting amendments. The Court did not agree that the amendments were hopeless, and held that any prejudice was compensable in Costs. However, the Court did exercise its general discretion to disallow inappropriate amendments. Specifically, the Court disallowed certain portions of the proposed amendments as either inflammatory, statements of expert opinion, legal argument, prejudicial, or improper references to a settlement that had been reached on a Pierringer basis.

Lastly, the Defendants argued that removal of the offensive amendments would leave a nonsensical pleading, and that it would be inappropriate for the Court to redraft the document so as to save it. The Court did not find merit in this concern, as Justice Miller did not propose to redraft the pleadings, but rather provided general guidelines for the Plaintiff to make corrections. Justice Miller therefore allowed some of the amendments to the Plaintiff’s Amended Amended Statement of Claim.

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