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Federal Court Reiterates High Standard for Excluding Expert Evidence at Preliminary Motions

February 28, 2024


The Federal Court’s recent decision in McCain Foods Limited v J.R. Simplot Company, 2023 FC 1480 provides further clarity on rule 52.5 of the Federal Court Rules (the “Rules”). Rule 52.5 (1) provides that parties must raise disqualifying objections regarding expert witnesses as early as possible:

52.5 (1) A party to a proceeding shall, as early as possible in the proceeding, raise any objection to an opposing party’s proposed expert witness that could disqualify the witness from testifying.

The action underlying this decision is a patent infringement action where McCain Foods Limited (“McCain”) asserts that J.R. Simplot Company (“Simplot”) infringed their patent directed to a process for treating fruits and vegetables before cooking. In June 2023, Simplot served the expert reports of Dr. Vorobiev and Dr. Sastry. Under rule 52.5, McCain objected to the expert report of Dr. Vorobiev.

Subsequently, McCain brought a motion to strike Dr. Vorobiev’s report and sought the determination on the merits of their objections to Dr. Voroviev’s evidence. The Court was asked to determine if rule 52.5 of the Rules requires prompt resolution on the merits of whether an expert witness's evidence is admissible.

The Court dismissed McCain’s motion. The Court held that the Rules do not require a motion to be brought as early as possible to determine the merits of any objections to expert evidence or the admissibility of an expert’s report. Instead, the notice requirement in rule 52.5 serves to ensure that no party is taken by surprise.

The Court acknowledged that a case management judge does possess the authority to strike expert evidence during a pre-trial motion. However, the Court warned that a case management judge should exercise such authority sparingly and only when the moving party lands a “knockout punch”.


Authors: Josh Sloan and Yaseen Manan


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