Reply Report as Last Word? Not A Viable Strategy, Says Federal Court

1. Evidence which is simply confirmatory of evidence already before the court is not be allowed.
2. Evidence which is directed to a matter raised for the first time in cross examination and which ought to have been part of the plaintiff's case in chief is not be allowed. Any other new matter relevant to a matter in issue, and not simply for the purpose of contradicting a defence witness, may be allowed.
3. Evidence which is simply a rebuttal of evidence led as part of the defence case and which could have been led in chief is not to be admitted.
4. Evidence which is excluded because it should have been led as part of the plaintiffs' case in chief will be examined to determine if it should be admitted in the exercise of the court’s discretion.

The FC noted these principles have been referred to in a number of recent FC cases (Swist v Meg Energy Corp, 2020 FC 759 [“Swist”], Bauer Hockey Ltd. v Sport Maska Inc., 2020 FC 212 [“Bauer”], and Janssen Inc. v Teva Canada Limited, 2019 FC 1309 [“Janssen”]).

The Court also noted that Janssen served to further clarify what could properly be submitted as reply evidence and what was better addressed in arguments or cross-examination. Mere correction of statements adduced in a responding report is not admissible in reply.

In contrast, Amgen Canada Inc. v Apotex Inc., 2016 FCA 121 [“Amgen”] advocates asking whether permitting the evidence would be in the interests of justice and puts forward three factors to assist in determining whether reply evidence ought to be admitted. In some cases, such as Bauer, the FC has used these factors to admit reply reports as exceptions to the rules of reply evidence. However, the FC found Amgen and its progeny to be of limited utility in the case at hand.

The Report Added Nothing New

Instead, the FC relied on the aspects of Janssen, Bauer and Swist that focused on the importance of avoiding unnecessary motions, mere rebuttals, and exploration of shortcomings that could be explored during cross-examination or highlighted in argument.

The FC found that Angelcare’s reply report read largely as an opportunity seized by the expert to re-assert the views expressed before. Though a few clerical corrections were allowed, the rest of the report was denied. The FC noted that it would remain open to the trial judge to reconsider some specific aspects of the reply evidence offered by the Plaintiffs at the trial proper, in case they had applied an overly-broad brush in their consideration of the Reply Report, noting that the Court may rely on rule 280(1.1) of the Rules of the Federal Court.

Authors: Meghan King and Emma Baumann, 2020/2021 Articling Student-at-law