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Civil Litigation - Evidence at Trial [R53]. Donna Pelrine, by her Estate Trustee James Pelrine et al. v. Chung et al.
In Donna Pelrine, by her Estate Trustee James Pelrine et al. v. Chung et al. (Div Ct, 2026) the Divisional Court allowed an appeal of a partially dismissed motion which requested "leave to file three late served reports pursuant to rule 53.08 [SS: 'Evidence Admissible only with Leave'] of the Rules of Civil Procedure":[6] In brief, the motion judge erred by applying the test under rule 53.08 as a strict conjunctive test and failing to properly consider the interests of justice throughout. Specifically, he failed to consider the lack of prejudice and importance of providing the trier of fact with all the necessary evidence to adjudicate the case on its merits, in determining what can constitute a reasonable explanation for the delay. In doing so, the motion judge applied rule 53.08 in a way that goes beyond its intended purpose and created a disproportionate outcome.
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[9] In the recent Divisional Court decision of Harris v. Grand River Hospital, 2026 ONSC 240, 180 O.R. (3d) 273 (Div. Ct.) [Harris], the court at para. 8 provides guidance regarding the applicable standard of review when dealing with the discretionary decision to grant leave to admit a late expert report under rule 53.08 of the Rules. The Court states:The decision whether to grant leave to admit a late expert report is discretionary and is owed deference. A discretionary decision will be reversible where the court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, at para. 27. However, the reviewing court is not to reweigh the relevant considerations; it may only intervene where it is satisfied that the trial judge’s exercise of discretion was unreasonable. Fresco v. Canadian Imperial Bank of Commerce, 2024 ONCA 628, at paras. 31-33. [10] Here, the question is whether the motion judge misdirected himself as to the correct interpretation and application of rule 53.08. The motion judge’s exercise of discretion in applying the facts of the situation to this rule is owed considerable deference, but the interpretation of the rule itself that underpins the exercise of that discretion must be correct.
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Amended Rule 53.08
[15] Rule 53.08 was amended on March 31, 2022, to read as follows:53.08(1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,(a) there is a reasonable explanation for the failure; and
(b) granting leave would not,
(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or
(ii) cause undue delay in the conduct of the trial. [16] Subrule 53.08(2) provides that the test in subrule (1) applies to subrule 53.03(3) regarding the timelines to serve experts reports. Rule 53.03(4)(a)-(c) provides that the time for service of expert reports under rule 53.03 may be extended or abridged: at the pre-trial conference or any conference; by the court on motion; or on the consent of the parties unless the extension would affect the scheduled trial date.
[17] Previously rule 53.08(1) provided that “leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.”
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Guiding Principles to the Interpretation and Application of Rule 53.08
[44] While the amended version of rule 53.08 is intended to limit the situations in which late filed expert reports will be permitted, the test must be applied with an emphasis on the interests of justice throughout. The strict conjunctive test applied by the motion judge failed to properly balance the relevant considerations as required by this court in Harris.
[45] The change in wording from the mandatory language of “shall be granted” to the permissive language of “may be granted” as well as the additional requirement that the delay be reasonable was clearly intended to create a stricter framework for the late admission of expert reports. This was necessary to address a culture of delay and the chronic problem of counsel submitting late served expert reports as a matter of course, in many cases for strategic reasons. The shift from the mandatory language (shall) to permissive language (may) demonstrates that the application of the rule is a discretionary exercise with the intended purpose of reducing wasted and unproductive pretrial conferences and avoiding unnecessary and last-minute trial adjournments.
[46] Rule 53.08 is to be interpreted and applied in a manor consistent with the overall objective the rule change was meant to achieve. In applying the rule care must be taken to avoid disproportionate outcomes. A formalistic approach to the interpretation and application of the rule devoid of or lacking in interest of justice considerations in accordance with rule 1.04 is to be avoided. A contextual and balanced approach is to be taken in the exercise of discretion when making the determination under the rule.
[47] While the plain reading of the new test under rule 53.08 is conjunctive and requires both a reasonable explanation and lack of prejudice, the rule as a whole is to be read and applied with regard to the interests of justice. Notwithstanding that the question of whether prejudice would result from late service of the expert reports is a separate factor under rule 53.08(1)(b), the question of prejudice is inherent to the impact of the decision on the interests of justice. Rule 1.04 is to be applied throughout the entire application of the rule, and not just to subrule 53.08(1)(b).
[48] Implicit in the interest of justice framework is the principle that proceedings be fairly heard and decided on the merits by ensuring, where possible and appropriate in the circumstances, that the trier of fact have the necessary evidence before them. The rule change was not intended to impede the fair and just determination of the issues on their merits.
[49] It is for this reason that in determining whether the explanation for the delay is a reasonable one, the explanation should not be considered in a vacuum. The explanation must be considered in light of all the surrounding circumstances and a determination made regarding whether the explanation is reasonable in the context of those circumstances and interest of justice considerations. The rule requires a reasonable explanation, not a perfect explanation and is to be determined within the context of the overall purpose of the new rule and the concerns it was meant to address.
[50] In Harris the Divisional Court states at para. 29 as follows:While the new rule permits a judge to refuse leave even if there is no prejudice to the opposing party, this does not mean the absence of prejudice is irrelevant. In deciding whether to grant leave for an abridgement of time, it is always important to consider the overall interest of justice. Pursuant to r. 1.04, the rules are to be liberally construed “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” As Sharpe J.A. reminds us in 1196158 Ontario Inc. v. 6274013 Canada Ltd; 2012 ONCA 544, at para. 19, “procedural rules are the servants of justice not its master.” He goes on to say:We should strive to avoid a purely formalistic and mechanical application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. As Laskin J.A. stated in Finlay v. Van Paassen (2010), 101 O.R. (3d) 390, [2010] O.J. No. 1097, 2010 ONCA 204, at para. 14, “the Rules and procedural orders are construed in a way that advances the interests of justice and ordinarily permits the parties to get to the real merits of their dispute”. [51] It is important to note that the motion judge did not have the benefit and guidance of the Divisional Court’s decision in Harris, which overturned the lower court’s decision, a decision upon which the motion judge relied when deciding the motion before him.
[52] This approach to the interpretation of rule 53.08 is reinforced by the reasoning in the recent Court of Appeal decisions in Urban Electrical Contractors. In these appeals the court reconsidered the framework governing the disclosure of partial settlement agreements in multi-party civil litigation and the continued validity of the rule articulated in Handley Estate.
[53] While Urban Electrical Contractors deals with a different issue under a different rule focussing on the doctrine of abuse of process, it provides helpful guidance and is instructive to the issues to be determined in this appeal. In Urban Electrical Contractors the court overturned a previous decision to allow for a more contextual and discretionary approach to determining whether an abuse of process has occurred and if so what remedy to apply: Urban Electrical Contractors, at paras. 164-166.
[54] In Urban Electrical Contractors, in order to prevent unjust outcomes, the court moved away from a strict, rigid framework in which cases were not being adjudicated on their merits because of a technical breach: paras. 66-70. In their reasoning the court specifically rejects categorical considerations and obligatory remedies in favor of a discretionary, less formulaic fact-based analysis that focuses on the resulting prejudice and impact on the justice system: Urban Electrical Contractors, at paras. 15-17. As the court states at para. 17: “A doctrine designed to serve the ends of justice, applied mechanically, acts contrary to its own animating objective.”
[55] The reasoning in Urban Electrical Contractors underpins the approach to the interpretation of the Rules of Civil Procedure generally. These principles are further demonstrated by rules 1.04 and 2.03, and rule 53.08 is to be interpreted based on the same framework. Applying that reasoning , rule 53.08 is to be applied “in a manner that is attentive to context, guided by proportionality, and directed toward the fair and orderly administration of justice”: Urban Electrical Contractors, at para. 170.
[56] This approach to the interpretation and application of rule 53.08 is consistent with the modern approach to statutory interpretation as set forth in Trebell v. Canadian Life Assurance Company 2026 ONCA 481, at para. 31, where the court states “[t]he modern approach to statutory interpretation requires the meaning of a statutory provision to be determined by reference to its text, context and purpose: Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, 502 D.L.R. (4th) 59, at para. 30.” Here, the context and purpose of the rule inform the interpretation of the test and demonstrate the necessity of considering the interests of justice throughout.
[57] The motion judge at para. 48 of his decision relied on the underlying decision in Harris in holding that:[Rule] 53.08, does not involve a balancing of reasonable explanation, prejudice and undue delay. The court only engages in the balancing of relative prejudice and undue delay if the non-compliant party has established a reasonable explanation for missing the deadlines imposed by rr.53.03(1)-(3) (see Harris v. Grand River Hospital, 2025 ONSC 282 at para. 16; Mohamud v. Juskey, 2023 ONSC 4414, at paras. 60-61. This is precisely the reasoning that was overturned by the Divisional Court in Harris.
[58] The motion judge at para. 94 of his decision expresses the concern that if he was to accept [that inattentiveness to a file, can constitute a reasonable explanation for delay because of counsel’s practice demands], then r. 53.08(1) would effectively revert back to being an “escape clause”. This echoes the concerns of the motion judge in Harris, at para. 17 where she states in part “[t]o grant the order abridging the time for service of the expert report in all these circumstances would render the relevant Rule entirely toothless.”
[59] This concern was also rejected by the Divisional Court in Harris, at paras. 26-28 where they conclude that the motion judge in that case erred by not considering the overall interests of justice when applying rule 53.08. All the surrounding circumstances, which include the relevant timeline of events, along with the broader interest of justice considerations are to be considered with respect to the application of the entire rule.
[60] Such an approach does not remove or soften the intended purpose of the rule change or remove the requirement that there be a reasonable explanation. Rather it ensures that the court undertakes a more thorough analysis that fully accounts for the interests of justice in making the final determination.
[61] Rule 53.08 was amended to create a stricter framework for the extension of time to deliver expert reports. The old version of the rule was too permissive and led to the automatic admission of expert reports regardless of the reason why they were late. This created a culture where the timelines prescribed under rule 53 to serve these reports were treated as no more than suggestions that could be ignored for any reason.
[62] Reports that are delivered late for nefarious or tactical reasons were certainly intended to be captured by the new rule, as were situations where there has been a deliberate disregard for the rule with out any reasonable explanation or justification at all. In such circumstances the denial for leave is appropriate. However, the explanation for the delay in and of itself should not overwhelm the other elements of the analysis or overtake the court’s primary function of adjudicating cases on the merits. It is within this framework that rule 53.08 is to be interpreted and applied. In this analysis, mistakes, errors in judgement, and even a deliberate decision to deliver an expert report late that is grounded in a reasonable belief it is necessary in the circumstances, may amount to a reasonable explanation depending on the extent of the resulting prejudice or delay, and any other surrounding circumstances which include the timeline of events and interest of justice considerations.
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[68] Respectfully, I find that the learned motion judge misdirected himself by failing to correctly apply and give sufficient weight to the applicable principles in determining whether leave should be granted pursuant to rule 53.08. The motion judge himself found that had he had the discretion to take a more holistic approach, balancing prejudice to both parties with the question of reasonable explanation, his decision would have been different. The Divisional Court’s decision in Harris makes it clear that he did have that discretion. While he did not have the benefit of the Divisional Court’s reasoning at the time, the motion judge fell into error by failing to apply the applicable interest of justice considerations and balancing approach to the entirety of the rule 53.08 analysis. . J. Jenkins and Son Landscape Contractors Limited v. Iron Trio Inc.
In J. Jenkins and Son Landscape Contractors Limited v. Iron Trio Inc. (Ont Divisional Ct, 2025) the Divisional Court considered an appeal, here in a fact issue about the volume of a product delivered.
Here the court considers the evidence duties under RCP R53.03 ['Expert Witnesses'] and R53.08 ['Evidence Admissible only with Leave']:Failing to Exercise the Court’s Discretion to Admit Expert Witnesses Tendered by the Appellant
[55] The appellant tendered three potential expert witnesses at trial. Each of these witnesses had completed an Acknowledgment of Expert’s Duty in Form 53. However, none of them had provided experts’ reports containing the information required by Rule 53.03(2.1).
[56] The trial judge declined to receive their opinion evidence.
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[63] None of the trial judge’s rulings on these potential experts made express reference to Rule 53.08, which sets out that leave to admit evidence, despite a failure to comply with Rule 53.03(3), may be granted if the party responsible for the failure satisfies the judge that: (a) there is a reasonable explanation for the failure; and (b) granting leave would not cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or would not cause undue delay in the conduct of the trial.
[64] In my view, it was not necessary for the trial judge to carry out a point-by-point analysis of the factors set out in Rule 53.08(1). The trial judge was aware that the proposed witnesses’ non- compliance with Rule 53, would not necessarily be fatal. Yet a review of the transcript discloses that no explanation, let alone a reasonable one, was offered for the failure to deliver compliant expert reports.
[65] The provisions of Rule 53.08(1) are conjunctive. There needs to be a reasonable explanation for the failure and the court must be satisfied that granting leave would not cause prejudice or undue delay. The absence of an explanation for the failure to deliver compliant reports was fatal to the appellant’s request for the trial judge to exercise his discretion to allow the witnesses to testify. . Soave v. Stahle Construction Inc.
In Soave v. Stahle Construction Inc. (Ont CA, 2023) the Court of Appeal considered an issue involving R30.08(1) ['Failure to Disclose or Produce Document'] and R53.08(1) ['Evidence Admissible only with Leave']:[13] Rule 30.08(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that, where a party fails to disclose a document in its affidavit of documents and the document is favourable to that party, the document can only be introduced at trial with leave of the court. Rule 53.08(1) sets out the test for granting leave in such circumstances, and it requires that the court be satisfied that (a) there is a reasonable explanation for the delay and (b) the admission of the document (i) will not cause prejudice that cannot be compensated by costs or an adjournment and that (ii) it will not cause undue delay of the trial.
[14] This court owes significant deference to the trial judge’s exercise of her discretion in deciding whether to admit the Great West Life policy: 1162740 Ontario Limited v. Pingue, 2017 ONCA 583, at para. 13.
[15] While the trial judge did not explicitly refer to the test under r. 53.08(1) of the Rules of Civil Procedure, it is evident that she considered the relevant factors and that her ruling was supported by the record before her. Specifically, she considered the issue of prejudice when she referred to trial fairness and Stahle’s failure to disclose that it intended to rely on the Great West Life policy up to the time of Mr. Soave’s cross-examination. . Rosehaven Homes Limited v. Aluko
In Rosehaven Homes Limited v. Aluko (Ont CA, 2022) the Court of Appeal drew a distinction between the requirements of admitting an expert report in a summary judgment motion, and admitting one at trial (under R53.03):[8] First, the appellants argue that the motion judge erred in admitting and relying on Rosehaven’s rule 53.03 litigation expert report (“Rosehaven’s expert report”) concerning the value of the Property. Rosehaven’s expert report assessed the Property’s value at $1,510,000.00 as of April 13, 2017 and at $1,050,000.00 as of June 4, 2019 (the date of the agreement of purchase and sale under which the Property was resold). In his reasons, the motion judge observed that the appellants did not provide a litigation expert report. Rather, Mr. Aluko attached as an exhibit to his affidavit filed on the summary judgment motion a draft report obtained by one of the appellants’ prospective lenders (the “Draft Report”), which was clearly marked “Draft Copy – Not To Be Relied Upon”.
[9] Beginning with the admissibility issue, the appellants argue that rule 53.03 governs the exchange of expert reports prepared for trial. Relying on Karami v. Kovari, 2019 ONSC 637, at para. 29, they say the motion judge erred in admitting Rosehaven’s expert report on a summary judgment motion. In addition, the appellants point out that the author of Rosehaven’s expert report failed to sign a Form 53 Acknowledgment of Expert’s Duty and failed to enumerate the instructions received from Rosehaven concerning preparation of the report. The appellants say these are mandatory requirements prescribed by rule 53.03(2.1) to support the admissibility of a litigation expert’s report.
[10] We are not persuaded that the motion judge erred in admitting Rosehaven’s expert report as evidence on the summary judgment motion. Rosehaven’s expert report was appended as an exhibit to an affidavit sworn by one of its co-authors. The deponent stated: “I confirm that I adopt and agree with the contents of the Reports[2] as drafted.”
[11] The fact that rule 53.03 sets out rules for the exchange of expert reports for the purposes of a trial does not undermine the ability of a party to introduce expert evidence on a motion, provided that the rules relating to the admissibility of evidence, in general, and expert evidence, in particular, are respected. This case is distinguishable from Karami, because, in that case, the expert’s report was not verified by an affidavit from the expert. Moreover, the motion judge in Karami was not satisfied that the expert had been properly qualified: Karami, at paras. 27 and 29. . McDonald v. Toronto-Dominion Bank
In McDonald v. Toronto-Dominion Bank (Ont CA, 2022) the Court of Appeal considers application of R53.07 ['Calling Adverse Party as Witness']:Issue #3: Did the trial judge err in interpreting and applying r. 53.07 of the Rules of Civil Procedure, resulting in trial unfairness?
[125] The Joint Liquidators take issue with a procedural ruling made at the close of the Joint Liquidators’ case (“the second ruling”). The trial judge permitted TD Bank to recall a number of witnesses to testify, despite the fact that they had already been cross-examined by the Joint Liquidators under r. 53.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which addresses calling adverse parties as witnesses. The Joint Liquidators say that the trial judge’s second ruling contradicted her earlier ruling under r. 53.07 (the “first ruling”) and that her second ruling was based on an incorrect interpretation of r. 53.07. The result, they say, was to permit an unfair trial process.
[126] TD Bank submits that the second ruling was correct and caused no prejudice to the Joint Liquidators.
[127] As I will explain, I do not accept that the trial judge’s second ruling was incorrect or that it resulted in trial unfairness.
(a) Background
[128] To understand the Joint Liquidators’ objection to the second ruling, it is necessary to understand the scope of the first ruling.
The First Ruling
[129] Before any witnesses were called at trial, the Joint Liquidators sought an undertaking from TD Bank to call ten of its current and former employees. TD Bank would not provide the undertaking, and so the Joint Liquidators sought to summon and cross-examine those witnesses pursuant to r. 53.07.
[130] Where a witness is summoned under r. 53.07, they may be (1) cross-examined by the party who called them or by any other party who is adverse in interest (r. 53.07(5)), and (2) re-examined by any other party who is not entitled to cross-examine under r. 53.07(5) (r. 53.07(6)).
[131] TD Bank was opposed to the Joint Liquidators cross-examining any former employees. It argued that r. 53.07 only applies to current employees and so if the Joint Liquidators wished to examine former employees as witnesses at trial, they were required to summon and examine those witnesses in chief.
[132] The trial judge rejected TD Bank’s position. She found that the rule applied to former employees. She concluded that it was in the interests of justice to permit the Joint Liquidators to cross-examine the witnesses pursuant to r. 53.07 and to allow TD Bank to re-examine them.
[133] The trial judge also rejected TD Bank’s secondary argument that if the witnesses were subject to cross-examination pursuant to r. 53.07, the bank should be permitted to conduct additional examination of them, not limited to re-examination. In rejecting that argument, the trial judge made the following comment, which the Joint Liquidators rely upon to argue that the second procedural ruling was inconsistent with the first:If TD Bank had wanted to control the presentation of evidence from those witnesses, it could have undertaken to call them as TD Bank witnesses, but it chose not to do so. TD Bank may, therefore, conduct re-examination of the witnesses only. The Second Ruling
[134] Once the Joint Liquidators closed their case, TD Bank sought to recall three of the witnesses who had already testified pursuant to the first procedural ruling. I refer to these witnesses as the “recall witnesses.”
[135] The Joint Liquidators opposed TD Bank’s request to have the recall witnesses testify. They maintained that the trial judge’s first procedural ruling precluded this approach and that permitting the recall witnesses to testify again would “eviscerate the effect of Rule 53.07” and “result in irreparable prejudice” to the Joint Liquidators. In addition, the Joint Liquidators said that once TD Bank decided not to undertake to call any of its employees, it “relinquished the ability to examine them in-chief and control the presentation of their evidence to the Court.”
[136] In response, TD Bank argued that r. 53.07 did not preclude them from recalling the witnesses. And, the failure to permit them to testify further would leave a distorted factual picture for the trial judge, since two of the recall witnesses were examined for less than 30 minutes each and only on minor points, and the third recall witness had not been taken to key documents.
[137] The trial judge concluded that there is “nothing” in r. 53.07 that “states that an adverse party who does not give an undertaking to call a witness forfeits the right to call that witness” after that witness’ initial testimony. The trial judge went on:According to the operation of the rule, the consequences of not giving the undertaking are that the opposing party may summons the witness and may cross-examine the witness, a right that the opposing party would not otherwise have for its own witness. The rule does not state that the adverse party must give the undertaking or lose the right to subsequently call the witness… If the rule had the consequence of also prohibiting the adverse party from calling the witness, it would have stated so explicitly. [138] Ultimately, the trial judge decided that she would not resolve “all theoretical abuses of the rule” and tailored her ruling to provide a just outcome in this case. That outcome was to allow the recall of the witnesses while at the same time directing TD Bank not to duplicate evidence that the recall witnesses had previously given. This arrangement, she concluded, would mitigate any prejudice arising from the recall and allow the court to have a complete evidentiary record.
(b) Discussion
[139] The Joint Liquidators submit that the trial judge’s second ruling “eviscerated both her first procedural ruling… on which the Joint Liquidators’ trial strategy was based, and rule 53.07.” In particular, they point to the following errors:▪ She gave r. 53.07 a “novel and legally incorrect interpretation”, one that led to prejudice to the Joint Liquidators, which could not be mitigated by cross-examination or otherwise.
▪ She unfairly reversed her first ruling, where she had said that TD Bank could have “undertaken to call [the witnesses] … but it chose not to do so” and therefore, TD Bank was confined to “re-examination of the witnesses only”. [140] In the Joint Liquidators’ submission, the testimony resulting from the second ruling was inadmissible, as were parts of the opinion evidence proffered by Ms. Joyce. Accordingly, the trial judge erred in relying on such testimony in dismissing the Joint Liquidators’ claims.
[141] I reject this ground of appeal for several reasons.
[142] First, there is nothing in the wording of r. 53.07 that precludes a party from recalling a witness after refusing to undertake to call that witness in the first place. And, notably, r. 53.01(3) provides that “[t]he trial judge may at any time direct that a witness be recalled for further examination.” That is what happened in this case.
[143] Second, pursuant to r. 1.04(1), r. 53.07 is to be construed liberally in order to secure “the just, most expeditious and least expensive determination” of every proceeding based on its merits. To adopt the Joint Liquidators’ interpretation would, as illustrated by this case, be at odds with r. 1.04(1), as it would undermine the truth-seeking function of the trial. As the trial judge noted, the recall witnesses were “key witnesses”: their evidence was “critical” to the factual findings she had to make. It was “important to receive their oral evidence… to make a just determination.”
[144] Third, contrary to the Joint Liquidators’ submission, the second ruling does not render r. 53.07 “effectively meaningless”. Their submission ignores the purpose of the rule: it permits a plaintiff to call as a witness a person opposed in interest but whose evidence is critical to the plaintiff’s case without being limited to direct examination, which is unlikely to be an effective way to prove a party’s case in the circumstances: Peter Sankoff, Law of Witnesses and Evidence in Canada, at para 11:31; see also Granitile Inc. v. Canada (1998), 41 C.L.R. (2d) 115 (Ont. Gen. Div.), at para. 23. Here, the rule fulfilled its clear purpose: it allowed the Joint Liquidators to elicit evidence through cross-examination from adverse witnesses in building their case.
[145] Fourth, the trial judge’s interpretation prevents strategic behaviour that could deprive the finder of fact of relevant evidence. For instance, if the Joint Liquidators were correct in their interpretation of r. 53.07, then there would be nothing to stop a plaintiff from strategically summoning a witness, asking a single question, and then having that witness placed on, as the trial judge put it, “ice”. Given the rules of re-examination, tied as they are to what is elicited during examination in chief, this interpretation would not only prevent the witness from giving their evidence, but it would deprive the finder of fact of that evidence.
[146] Fifth, contrary to the Joint Liquidators’ submission, the trial judge’s two procedural rulings are reconcilable. While the trial judge initially refused to allow TD Bank to “conduct additional examination of [the adverse] witnesses not limited to re-examination”, that was a ruling that was applicable to the Joint Liquidators’ case in chief. That ruling did not preclude TD Bank from seeking permission to recall those same witnesses when it turned out that the evidence elicited from them during the case in chief did not touch on areas necessary to the defence and to provide the trier of fact with critical facts.
[147] In the end, the trial judge navigated a carefully balanced path. She tailored her ruling to limit the examination of the recall witnesses to areas not previously covered in their testimony. She also provided the Joint Liquidators with the right to exercise full cross-examination and to call reply evidence should they choose to do so. They exercised the first right and chose not to exercise the second. There was nothing unfair or prejudicial about this procedure.
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