Federal Court


Opinion evidence
Application for leave to introduce reply report was granted

Plaintiff First Nations introduced issue of honour of Crown in amended statement of claim. First Nations did not intend to call further evidence on issue of honour of Crown but both Canada and Ontario elected to produce expert reports on issue. First Nations applied for leave to introduce reply report, written in response to Ontario’s expert report regarding honour of Crown. Application granted. Full motion was not required to address application and it was appropriate to address leave in abbreviated motion. Delay in producing report was explained, and parties had adequate notice of application. Information available in expert reports and trial record was sufficient to assess usefulness of First Nations’ expert report without need for additional affidavit evidence, and any prejudice to Canada or Ontario could be addressed by mitigative measures. Report did not merely dispute factual evidence offered in Ontario’s expert report but it advanced alternate approach to assessing whether honour of Crown had been upheld. Report was in response rather than in reply and it must be considered part of First Nations’ main case. While First Nations initially took position they would not call evidence on issue, choice by Ontario to commission expert report on honour of Crown reopened door for First Nations to respond with expert report. Issues arising in connection with honour of Crown were important, must be addressed fully in evidence and court was assisted by receiving evidence from parties on issues. Approach adopted by First Nations entitled Ontario to reply to expert report. First Nations’ expert was to testify before Ontario’s expert and was not to repeat any evidence covered in prior testimony. 

Alderville Indian Band v. R. (June 29, 2016, F.C., Leonard S. Mandamin J., T-195-92) 268 A.C.W.S. (3d) 99.

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