Date: 20010801
Docket: T-2799-96
Neutral citation: 2001 FCT 850
BETWEEN:
KIRKBI AG and
LEGO CANADA INC.
Plaintiffs
- and -
RITVIK HOLDINGS INC./GESTIONS RITVIK INC.,
and RITVIK TOYS INC./JOUETS RITVIK INC.
Defendants
(Delivered from the Bench at Ottawa
on Wednesday, August 1st, 2001)
[1] This is a motion brought by the plaintiffs seeking leave to call up to 10 expert witnesses at the trial of this matter.
[2] At a pre-trial conference held in the presence of counsel on November 30, 2000, the case was set down for trial and it is presently on the list for a period of 20 trial days commencing in mid-January 2002. At that same pre-trial conference a number of orders were made with respect to the preparation of documents, the filing of read ins and the exchange of expert reports with dates being set for the completion of those various steps.
[3] There was also an order made at that pre-trial conference directing that each party had leave to call more than 3 but not more than 5 expert witnesses at the trial of the action. A word of explanation about that order is perhaps appropriate. There had been some discussions at the pre-trial conference as to whether it was the rule in section 7 of the Canada Evidence Act or the equivalent rule in the Ontario Evidence Act which applied and there was also, as I recall it, although counsel are not certain, some discussion of the fact that in an earlier confidentiality order made by Prothonotary Lafrenière there had been mention of three expert witnesses on each side and that that order, at least inferentially, limited the parties to that number of expert witnesses.
[4] At all events, it is quite clear that the order that was given was that each party could call no more than 5 expert witnesses at the trial. Plaintiffs now seek leave to call more.
[5] I wish to emphasize at the outset that as I conceive it, this motion is not brought under the terms of section 7 of the Canada Evidence Act[1]. That section, I believe, grants a discretion to a judge to allow a party to call more than 5 expert witnesses but as I understand it, what happened at the pre-trial conference was the exercise by me of that discretion, following discussion with counsel. Plaintiffs point out that there was no motion at the pre-trial conference but there did not need to be a motion. A pre-trial conference is held for the very purpose of dealing with issues of this sort, numbers of witnesses, numbers of experts, timing and so forth.
[6] The result is that this motion is in effect one seeking to have me vary the order which I made at that pre-trial conference. I should add parenthetically that while the order was in fact made at the pre-trial conference, at the end of November 2000, it was not formally entered until some two weeks later. The order as signed by me was drafted by plaintiffs' counsel and approved by defendants' counsel and forwarded to the Court.
[7] The rule with respect to varying an order of the Court is set out in Rule 399[2]. It is suggested by plaintiffs' counsel that Rule 399 does not apply to a scheduling order or a case management order and that these are varied all the time. I do not entirely agree with that proposition. It is certainly the case that case management orders and scheduling orders and perhaps pre-trial orders as well are subject to variation but I think that any order of the Court, if it is to be varied, is to be varied by the exercise of the powers contained in Rule 399. I do agree with plaintiffs' counsel, however, that the threshold for accepting a variance of a scheduling order is much lower if the order is not one that is determinative of rights and classically that would be a purely procedural order or something of that sort. There are other orders which may be varied depending on changes and circumstances and the Court does not need a very high degree of persuasion to demonstrate that it is appropriate to vary something which it previously decided in the light of the record as it stood at that time.
[8] That, however, does not in my view, resolve the matter in plaintiffs' favour. What is really at issue here, I suggest, is the integrity of the pre-trial conference process itself. Counsel are expected to arrive at pre-trial conferences prepared for trial. They are expected to arrive at pre-trial conferences knowing their cases, knowing the witnesses they are going to call and in particular knowing the amount of time they are required to take. This Court has a system of fixed trial dates and that is very important both to the Court and to counsel. But the counter part of that is that when counsel come to a pre-trial conference, they must be prepared to tell the Court that the number of witnesses they propose to call is the number of witnesses who will in fact be called.
[9] Now, of course, it is possible that circumstances may change and it is always possible to vary an order of the kind that was made here to increase the number of expert witnesses who may be called (and thereby to lengthen the trial, because I would have great difficulty accepting that 5 expert witnesses would not require very much less time for examinations and cross-examinations than the 10 expert witnesses whom the plaintiffs now propose to call). But, for the Court to be persuaded to vary an order of the kind here at issue, it must have material before it which demonstrates to it that there has been a change in circumstances. There is no such material in this file. All I am told by the affidavit that has been filed is that plaintiffs now intend to call 10 experts in the place of the 5 that they originally informed me they intended to call. That in my view is not enough. It is certainly not enough to justify my changing the order which was made and upon which the parties have now advanced far in their preparation for trial. The plaintiffs' expert reports are due to be served in a little over 6 weeks time, defendants are supposed to reply to those reports a scant month after that and rebuttal reports from plaintiffs will be due a further month after that. It is too late at this stage for plaintiffs to say that they want to call 10 experts in lieu of the 5 they have originally informed the Court they intended to call.
[10] Accordingly, I shall dismissed the motion with costs.
Judge
Ottawa, Ontario
August 1st, 2001
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7. Where, in any trial or other proceeding, criminal or civil, it is intended by the prosecution or the defence, or by any party, to examine as witnesses professional or other experts entitled according to the law or practice to give opinion evidence, not more than five of such witnesses may be called on either side without the leave of the court or judge or person presiding. |
7. Lorsque, dans un procès ou autre procédure pénale ou civile, le poursuivant ou la défense, ou toute autre partie, se propose d'interroger comme témoins des experts professionnels ou autres autorisés par la loi ou la pratique à rendre des témoignages d'opinion, il ne peut être appelé plus de cinq de ces témoins de chaque côté sans la permission du tribunal, du juge ou de la personne qui préside. |
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399. (2) On motion, the Court may set aside or vary an order (a) by reason of a matter that arose or was discovered subsequent to the making of the order; or (b) where the order was obtained by fraud. |
399. (2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas suivants: a) des faits nouveaux sont survenus ou ont été découverts après que l'ordonnance a été rendue; b) l'ordonnance a été obtenue par fraude. |