The Applicant/Defendant by counterclaim, applied to adjourn a two week Trial after the Respondent/Plaintiff by counterclaim filed a surrebuttal expert report two and a half years after the rebuttal expert report had been served, and ten weeks prior to the start of Trial. The surrebuttal expert report was filed after the Defendant/Plaintiff by counterclaim had filed both a Form 37 and Form 39, attesting to their readiness for Trial. The Applicant argued that the late filing of the surrebuttal expert report was contrary to Rule 1.2(2)(d), which it contended obligated the parties to communicate honestly, openly and in a timely way. The Respondent/Plaintiff by counterclaim argued that the Rules only require the expert report and rebuttal expert report to be served within certain timeframes, and that pursuant to Rule 5.35(2)(c), a surrebuttal expert report is optional.

Dario J. held that the surrebuttal report should be struck from the Court record, but that this would not limit the expert’s ability to provide some of the evidence contained in the report at Trial during testimony. Justice Dario noted that Rule 5.38 imposes the obligation on the parties to provide some of that information in any event, including clarifications around the methodology used in response to comments in the rebuttal expert report.

Dario J. noted that Rule 8.4(3)(c), which is referred to in Rule 8.5(1)(c), requires the parties requesting a Trial date through a Form 37 to certify that any expert reports have been exchanged. While the surrebuttal expert report is optional, Justice Dario held that it was included in the requirement in Rule 8.4(3)(c). Dario J. also held that the lateness of the surrebuttal expert report negated the purposes of the timeline set out in the Rules, which should not be encouraged. In all of the circumstances, Dario J. held that striking the surrebuttal expert report and denying the adjournment Application was the most expedient and fair result in the circumstances.

The Application was dismissed with Costs to be addressed at Trial.