Reply evidence allowed under reserve of objection in Louis Dreyfus Company and CN Railway dispute
In Justice Diner’s decision in Louis Dreyfus Company v CN Railway Company, LDC was granted permission to file its reply evidence. The Court returned to first principles when deciding whether to allow LDC’s motion for reply evidence. The decision was issued in the context of an action for damages under subsection 116(5) of the Canada Transportation Act.
In the motion before the Court, LDC sought to file a reply report from Mr. De Pape responding to a report from Mr. Das. The main expert report from Mr. Dae Pape, an industry expert, stated that LDC lost profits of more than $22 million due to CN’s failure to meet their obligations related to the supply of grain hopper railway cars. CN’s expert, Mr. Das, critiqued this report from his position as a forensic accountant. Mr. De Pape then provided a reply to the Das report which is the subject of this motion.
The Court reviewed the law regarding expert evidence admissibility and stated:
“Rule 279 of the Rules addresses expert evidence, including the fact that the expert must prepare and serve a report, and be available for cross-examination at trial. Expert evidence must meet the four criteria developed by the Supreme Court of Canada in R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9 at para 20: it must be: (a) relevant, (b) necessary; (c) not subject to any exclusionary rule; and (d) adduced by a properly qualified expert.”
The Court found that the conditions from Merck-Frosst Canada Ltd. v Canada (Health), 2009 FC 914 were met. Specifically, the evidence was determined to serve the interest of justice and assist the Court in making its determination. There will not be substantial or serious prejudice to CN if the reply evidence is allowed and the evidence could not have been anticipated before the Das report. The contents of the reply evidence, including recalculations, discussions of Mr. Das’ assumptions, and additional analysis on critiqued points, were considered properly responsive.
The Court refers to the experts’ differences in approaches and views, the participation of only two experts, and the significant damages sought as reasons that the reply evidence is “proportionate to the complexity and stakes of this action.”
The timing results in no prejudice to CN since the trial is scheduled for 5 months after this order, leaving ample time for CN to introduce sur-reply evidence. The Court also found that the reply expert evidence will aid the Court in serving the interests of justice.
A copy of Justice Diner’s Reasons for Order may be found here.
