ENMAX POWER CORPORATION v REMINGTON DEVELOPMENT CORPORATION, 2026 ABKB 596

The Applicant sought various relief related to document production obligations and the contents of several expert reports served by the Respondent. The Applicant argued that the Respondent served a Supplemental Affidavit of Records outside of the timelines prescribed by the Court, and that those records were relied upon in preparation of an expert witness report.

The parties were subject to a complex litigation plan that set out a deadline (February 13, 2023) to serve the Respondent’s Supplemental Affidavit of Records. Notwithstanding this deadline, the Respondent served a sixth, seventh, eighth, and ninth Supplemental Affidavit of Records on July 24, 2025, well after the deadline contained in the litigation plan. The Applicant took the position that in serving their Supplemental Affidavits of Records after the deadline, the Respondents failed to comply with Rules 5.10 and 5.16, and as such the Respondents should not be permitted to rely upon those records.

The Court noted that the intention of Rules 5.10 and 5.16 is to avoid trial by ambush and the unfairness that arises from that; and that there was no risk of that occurring in the present case. The Court was satisfied that the Respondent swore their Supplemental Affidavits of Records as soon as they became aware that the documents contained therein were relevant to the Action. Additionally, given the status of the Action, the Applicant had ample opportunity to question on the newly disclosed records, which dispelled the risk of a trial by ambush while also avoiding a situation with undisclosed records being produced at the trial of the Action. The Court ultimately held that the Respondent was permitted to rely upon the records in their Supplemental Affidavits of Records.

The Applicant also argued that the Respondent’s expert reports ought to be struck as inadmissible. In particular, the Applicants took the position that one report, the Kolesar Report, was inadmissible for lack of necessity. The Kolesar Report provided interpretation of judicial decisions, legislation, and decisions from the Alberta Utilities Commission. The Applicants argued that this interpretation was unnecessary as it was squarely within the capability of the Court to undertake on its own. Although the Respondent argued that the Kolesar Report did more than simply interpret the decisions, Justice Dilts agreed with the Applicant’s position and found that the Kolesar Report was neither necessary nor relevant. 

Pursuant to Rule 4.14(g)(ii), a Case Management Juge or, if the circumstances require, any other Judge, could make Procedural Orders regarding issues pertaining to expert witnesses. The Court canvassed relevant case law and noted that on a pre-trial application, a Judge should restrict its considerations to whether an expert report meets the baseline preconditions for admissibility and only exclude all or portions of that report if it fails to meet those preconditions. With respect to the Kolesar Report, Justice Dilts ultimately decided that it was a clear case where pre-trial determination of admissibility was appropriate, and found that the report was inadmissible.