EVIDENCE |
Halford v. Seed Hawk Inc.
T-2406-93
2003 FCT 141, Pelletier J.
10/2/03
13 pp.
Plaintiffs seeking to put in additional expert evidence-- Defendants oppose introduction of new evidence on grounds amounts to plaintiffs splitting their case, and evidence sought to be tendered not admissible in reply--Question of reply evidence dealt with in Federal Court Rules, 1998, rr. 274(1), 299(3)--R. 281 not dealing with trial procedure but with pre-trial disclosure, one of primary functions of exchange of experts' affidavits--R. 281 not authorizing party to prepare rebuttal affidavit which goes to element of case-in-chief, and to tender that evidence in reply--If affidavit deals with issue arising in case-in-chief, then evidence should be tendered in chief--Portions of plaintiffs' experts' affidavits dealing with infringement ought to have been put into envidence-in-chief--Whether what sought to be tendered properly reply evidence--Scope of reply evidence--Evidence simply confirming or repeating evidence given in chief not to be allowed as reply evidence--Must add something new--But since plaintiff not allowed to split case, that something new must be evidence not part of case-in-chief--Principles governing admissibility of reply evidence: (1) evidence simply confirmatory of evidence already before Court not allowed; (2) evidence directed to matter raised for first time in cross-examination and which ought to have been part of plaintiff's case-in-chief not allowed (although any other new matter relevant to matter in issue, and not simply for purpose of contradicting defence witness, may be allowed); (3) evidence which is simply rebuttal of evidence led as part of defence case and could have been led in chief not admitted; (4) evidence excluded because should have been led as part of plaintiffs' case-in-chief will be examined to determine whether admissible in exercise of discretion--Evidence on infringement not proper reply evidence because simply shows why witnesses disagree with evidence--No paragraphs dealing with new matters arising out of cross-examination-- Review of evidence disclosing portion of it should have gone in during plaintiff's case-in-chief--If admitted, defendants must have chance to respond--Further delay to be avoided-- Court exercising discretion to allow plaintiff to lead evidence within four corners of earlier order--Federal Court Rules, 1998, SOR/98-106, rr. 274(1), 281, 299(3).