PRACTICE |
Witnesses |
Halford v. Seed Hawk Inc.
T-2406-93
2001 FCT 1162, Pelletier J.
25/10/01
6 pp.
Application to add paragraphs in plaintiffs' witness' second affidavit, filed in response to affidavits filed by defendants' experts, relating to issue of infringement and capable of standing on own, to case-in-chief, as opposed to waiting until defendant's experts have testified--Rules stating expert evidence not admissible in-chief if not contained in affidavit setting out in full proposed evidence--Responding party then prepares affidavit containing evidence-in-chief, rebuttal--If application allowed, defendants denied opportunity to see whole of plaintiff's case at once, and to respond to it and advance its case at one time--But if not allowed, objection will be raised to it going in later, on ground plaintiff cannot split case, and only rebuttal evidence to be heard--All of affidavits filed with leave of Court--Unfair to put parties in position of following directions of Court and then arguing have not complied with rules--Federal Court Rules, 1998, rr. 279, 281 incorporate principle that party must put in entire case at once, subject to Court ordering otherwise--All of plaintiffs' evidence as to infringement ought to go in at once, regardless of where in series of affidavits evidence first arose, subject to caveat that evidence which is purely rebuttal to defendants' affidavits should only go in after defendant's evidence in--Prejudice to defendants' that of loss of ability to respond to plaintiffs' evidence in defendants' affidavits-in-chief--But Court can allow defendants' to respond to plaintiffs' case even though evidence to be given not reduced to affidavit--Although possibility of surprise, doubtful any surprises left--Plaintiffs to be allowed to put in all of witness' evidence as to infringement regardless of when introduced in affidavit form--Defendants' experts who are called to contradict plaintiffs' witness to be allowed to give oral evidence as to matters not contained in affidavits, but limited to rebuttal of evidence allowed in under this ruling, and must provide written summary of proposed evidence not appearing in affidavit provided--Same procedure to apply if plaintiffs' calling expert witness to give rebuttal evidence--Earlier ruling prohibiting admission of evidence of field trials conducted in 1999 because defendants given neither notice nor opportunity to attend--Same order now sought with respect to field trials conducted in 2000 after case management conference where these matters appear to have been raised--Both parties believed acting under judicial direction when conducted such tests--No order having been made at case management conference consistent with understanding plaintiffs' representatives would not attend--Parties likely structured cases around results of those trials--If inadmissible, likely to deprive parties of opportunity of putting in best cases--Preferable to admit test results, subject experts to cross-examination on their tests, and to have results go to weight given to evidence--Evidence with respect to 2000 field trials admissible--Federal Court Rules, 1998, SOR/98-106, rr. 279, 281.