PRACTICE |
Judgments and Orders |
Reversal or Variation |
Kirbi AG v. Ritvik Holdings Inc.
T-2799-96
2001 FCT 850, Hugessen J.
1/8/01
5 pp.
Motion by plaintiffs seeking leave to call up to 10 expert witnesses at trial of action--At pre-trial conference, order directing each party had leave to call between 3 and 5 expert witnesses at trial--Present motion in effect seeking to vary that order (drafted by plaintiffs' counsel and approved by defendants' counsel, signed by Motions Judge)--Motion dismissed with costs--Any order of Court to be varied by exercise of powers contained in r. 399--But, threshold for varying scheduling order much lower if order not determinative of rights, and classically that would be purely procedural order--At issue here integrity of pre-trial conference process itself--Court's system of fixed trial dates very important both to Court and to counsel--Counterpart of that, when counsel come to pre-trial conference, must be prepared to tell Court that number of witnesses they propose to call number of witnesses who will in fact be called--For Court to be persuaded to vary order of kind here at issue, change of circumstances must be demonstrated to Court--No such material herein--Affidavit stating plaintiffs intend to call 10 experts instead of 5 not sufficient--Affidavit not enough to justify changing pre-trial conference order upon which parties have now advanced far in their preparation for trial--Too late at this stage for plaintiffs to make requested change--Federal Court Rules, 1998, SOR/98-106, r. 399.