Recalling expert witness to testify amounted to case-splitting

Federal court | Evidence

Examination of witnesses

Rebuttal

Recalling expert witness to testify amounted to case-splitting

Plaintiffs’ expert witness L supplied report and testimony on effect of use of lake as reservoir for hydroelectric generation and water control purposes on First Nation. Crown provided report from expert witness R. After R was qualified as expert, Crown sought to have additional documents entered as exhibits. Plaintiffs objected on grounds documents did not form part of R’s report. R was permitted to testify on additional documents. At conclusion of R’s testimony, plaintiffs renewed objection to additional documents and indicated wish to recall L to testify. Plaintiffs were directed to have L prepare supplementary report outlining evidence to be tendered. Plaintiffs brought motion for order permitting recall of L as witness. Motion dismissed. Recalling L to testify amounted to case-splitting. L’s proposed testimony addressed matters not currently in evidence or addressed matters L had every opportunity to address in initial reports or oral evidence. Alleged inaccuracies in data presented by R or in additional documents could be addressed by counsel. Certain proposed corrections were irrelevant and unnecessary. R’s report was delivered years ago and L previously responded to it.
Lac Seul Band of Indians v. Canada (2017), 2017 CarswellNat 213, 2017 FC 75, Russel W. Zinn J. (F.C.).

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