5.35: Sequence of exchange of experts’ reports

Case Summary

The Plaintiff, Signalta Resources Limited (“Signalta”), applied for direction in Case Management, including resolution of the objections of the Defendant, Canadian Natural Resources Limited (“CNRL”), to parts of Signalta’s surrebuttal reports of their experts.

CNRL alleged that it and Signalta had exchanged primary, rebuttal and surrebuttal reports simultaneously. CNRL objected to parts of Signalta’s surrebuttal reports, alleging that they provided new arguments which could and should have been included in Signalta’s primary or rebuttal reports. Signalta maintained that the surrebuttal reports only addressed new issues and theories addressed in the rebuttal report.

Eamon J. considered Rule 5.35(2), concerning the content of surrebuttal reports. His Lordship reviewed the history of Rule 5.35, including the fact that the new Rules deliberately contemplate that expert reports be exchanged sequentially rather than simultaneously. Justice Eamon found that Rule 5.35(2)(c) contemplates surrebuttal reports addressing new issues, and therefore is not limited to alternative theories advanced in a rebuttal report. The Rule must not be used to split disclosure of a case or reinforce prior expert evidence. Instead, Eamon J. maintained that the Rule is “meant to avoid surprise and encourage parties to ensure that their expert has provided adequate disclosure of the substance of his or her opinion in its primary report.” Further, Justice Eamon held that:

The Rule should not be applied so rigidly as to force a party tendering a primary report to speculate about what a rebuttal report might contain, or advance excessive commentary and information simply to avoid arguments that it is case splitting. There may be a fine line between matters which are merely confirmatory and those which genuinely arise from some alternative theory or new dimension raised in the opposition’s rebuttal report. It will often be helpful to inquire whether the point ought to have been anticipated by the party tendering the primary report and whether the surrebuttal is carefully focussed on providing only new evidence.

Having regard to the existence of two series of exchanges of expert reports in this case (that commencing with Signalta’s primary report, and that commencing with CNRL’s primary report), Justice Eamon decided to assess each of the series separately. Eamon J. provided two reasons for this. First, Signalta would go first at Trial and CNRL could seek non-suit or not call all of its evidence, meaning that Signalta might never reach the point of rebutting CNRL’s experts. Second, the parties did not express that there was an agreement or expectation that the content of surrebuttal reports would be limited by that which could have been or was addressed in a rebuttal report.

Eamon J. found that both surrebuttal expert reports were reasonably responding to new issues raised in CNRL’s rebuttal. Accordingly, Justice Eamon dismissed CNRL’s objections.

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