In the context of Trial, Justice Sidnell considered the admissibility of expert evidence. Initially, Justice Sidnell noted the obligations of counsel when tendering expert evidence. Specifically, Justice Sidnell recognized that, under Rule 5.38, it is the responsibility of counsel to ensure that the expert understands that if the expert changes their opinion after issuing their report, the expert has an obligation to disclose that change of opinion.

Further, when considering the admissibility of expert evidence, Justice Sidnell identified the analytical steps the Court must consider in order to ensure that the expert opinion enhances the fact-finding process. Justice Sidnell recognized that expert evidence is presumptively inadmissible; however, if relevant factors are satisfied, the expert evidence may be admitted. While considering a factor referred to as the exclusionary rule which requires that the expert evidence not be subject any exclusionary rule, Justice Sidnell noted that an exclusionary rule could also refer to a procedural rule. Specifically, Justice Sidnell recognized that the Defendant objected to certain expert evidence as being duplicative, and therefore was prohibited by Rule 8.16.

When considering whether Rule 8.16 prohibited the expert evidence in question, Justice Sidnell noted the timing of the Defendant’s objection to the inclusion of the expert evidence. Specifically, Justice Sidnell recognized that the Defendant did not object to the inclusion of the expert evidence until Justice Sidnell requested submissions on the law relating to expert evidence, which occurred after the completion of the expert’s testimony, the submission of closing Briefs, and oral arguments. Justice Sidnell stated that pursuant to Rule 5.36, the challenge of the expert evidence should have been raised within a reasonable timeframe. Ultimately, considering the lateness of the objection, Justice Sidnell declined to consider the Defendant’s challenge of the expert evidence on the basis that the duplication of expert evidence violated Rule 8.16.