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Lessons From the Toothbrush Case: Setting Aside An Adverse Party Notice

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.


Last year I discussed the practice of calling a Defendant during the course of a Plaintiff’s case in chief using the adverse party provisions of the BC Supreme Court Rules.  Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, in the highly publicized ‘broken toothbrush’ trial, addressing these and the circumstances where the Court can set aside an Adverse Party Notice.
In the recent case (Alnoor v. Colgate-Palmolive Canada Inc.) the Plaintiff alleged she was injured while brushing her teeth with a toothbrush manufactured by the Defendant.  She alleged that the toothbrush was negligently designed and sued for “substantial damages“.
In the course of the lawsuit the Plaintiff attempted to examine the President of Colgate-Palmolive Canada for discovery.   These attempts were dismissed with the Court finding that the President was not an appropriate witness to be examined in the circumstances of the case.
As trial neared the Plaintiff served an Adverse Party Notice on the Defendant requiring the president to testify at trial.   Madam Justice Wedge exercised her discretion under Rule 12-5(23) to set aside this Notice finding again that this was an inappropriate witness to be compelled at trial.  In doing so the Court provided the following reasons:

29] The recent decision of Mr. Justice Butler in Dawson v. Tolko Industries Ltd., 2010 BCSC 1384, examines the meaning and effect of these provisions in detail. He observed at para. 18 that the Court is granted only limited jurisdiction to set aside an adverse witness notice. It is only where the evidence of the person is “unnecessary” that the Court can set aside the notice.

[30] Further, as the Court noted at para. 19, it is only in a clear case that a judge should exercise his or her discretion to set aside a subpoena on the ground that the evidence is unnecessary. That is because the Court should be very cautious about second guessing the litigants concerning the benefits they may derive from calling a particular witness.

[31] I agree with those comments. However, the Court is also granted discretion under subrule (24) which provides that where an application is made to strike an adverse witness notice, the Court may make any order it considers will further the objects of the rules.

[32] As I noted earlier, Ms. Alnoor first attempted over two years ago to issue an appointment to examine Mr. Jeffery for discovery. However, the Court ruled that Mr. Jeffery was not the appropriate representative on the basis that his position in the company is strictly managerial. He has no knowledge pertaining to any of the issues arising in the litigation. Ms. Alnoor has been clear that she wants to call Mr. Jeffery, not because he has any knowledge of the issues in the lawsuit, but because he is the person within the corporation who is ultimately responsible for the corporation’s actions, its consumer safety policies, and its recall policies. She points to the various mission statements on the defendant’s website, published over Mr. Jeffery’s signature.

[33] Ms. Alnoor wishes to question Mr. Jeffery about his statement that the defendant is committed to consumer safety, about his responsibility for product safety, and its recall policies. She wants to ask Mr. Jeffery why the company did not recall the toothbrush model in question before she purchased one. Because Mr. Jeffery is the president, submits the plaintiff, he must be the one ultimately responsible to recall products and warn consumers, and she wants to question him about those responsibilities.

[34] The difficulty with Ms. Alnoor’s argument is that the evidence she seeks to elicit from Mr. Jeffery is not relevant to the proof of her claim. She has brought a negligence action against the defendant. She must establish that the defendant was negligent in the manufacture, design, and/or testing of the toothbrush such that it was defective, and that the defect caused the harm the plaintiff alleges she suffered when using it. Any acknowledgment by Mr. Jeffery that he is the person ultimately responsible for the defendant’s actions, including its recall policies, will not advance the plaintiff’s claim in any way.

[35] The identity of the person ultimately responsible and any acknowledgment by that person that he is ultimately responsible by virtue of his management position within the company is simply irrelevant to the negligence factors the plaintiff must prove in order to succeed in her claim.

[36] In the event that Ms. Alnoor does establish her claim, the corporation, not Mr. Jeffery or any other senior management person, will be held liable for the damages flowing from the corporation’s negligence. That is so whether or not Mr. Jeffery acknowledges the various responsibilities he has as the corporation president. The company will be liable whether or not Mr. Jeffery had any idea that his company was manufacturing a defective product.

[37] In short, the evidence Ms. Alnoor intends to elicit from Mr. Jeffery is not relevant to the issues in the lawsuit. Irrelevant evidence is not admissible. It is unnecessary evidence within the meaning of the Rule.

More Judicial Critisism of Delayed Plaintiff Testimony in Injury Litigation

Written by admin on . Posted in Civil Procedure, ICBC Fibromyalgia Cases, Uncategorized. 55 Comments on More Judicial Critisism of Delayed Plaintiff Testimony in Injury Litigation

Earlier this year I highlighted judicial comments criticising the practice of not having a Plaintiff testify as the first witness in their personal injury claim.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, echoing these comments.
In this week’s case (Charles v. Dudley) the Plaintiff was injured in a 2008 collision.  She advanced a case alleging chronic pain and fibromyalgia.  The Court found that these claims were not proven on a balance of probabilities and ultimately awarded damages for soft tissue injuries which the Court found “resolved within a few months of the accident“.  In criticizing the Plaintiff’s delayed testimony Mr. Justice McEwan provided the following reasons:

[2] The trial proceeded in a fashion I would have described as unorthodox until recently, with the medical evidence called before the plaintiff testified. Counsel advised that they understand this to be the preferred way to run a personal injury case. I do not know where they get this idea. If persuasion of the trier of fact is the objective, the practice of leading medical opinion unattached to any factual foundation is the most awkward way to go about it. I have observed elsewhere that doctors do not subject their patients to a forensic examination. They generally assume that what the patient tells them is true and attempt to treat their symptoms. Their observations are of assistance to the trier of fact to the degree to which they reasonably conform to the facts that have been established after the plaintiff’s assertions have been tested. It is very difficult to assimilate medical evidence provisionally, that is, with no means of sorting what matters from what does not. A trier of fact obliged to hear a trial this way must go back over such evidence to put it in context. This Court is not alone in making this point. In Yeung v. Dowbiggin, 2012 BCSC 206, Humphries J. said:

[27]     Since the plaintiff was one of the last witnesses called and was in the courtroom very rarely prior to her testimony, it was difficult to assess the evidence about the effects of the accidents as I listened to the various witnesses. I had no idea who the plaintiff was, had no sense of her, and had heard no evidence about the accidents as I listened to all these witnesses. I do not know if this was a tactical decision or whether it was necessitated by schedules, but it meant the evidence I heard was all without context.

[3] In any event, owing to gaps in the scheduling of the opinion witnesses, I persuaded counsel to call the plaintiff after the first medical witness had testified to fill out the court day. The case then proceeded with interruptions of the plaintiff’s evidence to accommodate the scheduled witnesses. While occasional scheduling issues may dictate such a course, plaintiffs in personal injury cases should generally be called first, if the point is to put across a coherent case.

"What's This Lawsuit All About?" Examination For Discovery Caselaw Update

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure.


In my ongoing efforts to archive BC caselaw addressing examinations for discovery, reasons for judgement were released this week by the BC supreme Court, Prince George Registry, discussing the scope of permissible questions.
In this week’s case (Manojlovic v. Currie) the parties were involved in litigation with respect to a purchase and sale agreement relating to lakeshore property.   In the course of the lawsuit the Defendant was examined for discovery during which time he was asked to “tell me in your own words what this lawsuit is all about“.
The Defendant objected arguing this question was inappropriate.  Mr. Justice Tindale disagreed and concluded this question was fair game.  In doing so the Court provided the following reasons:

13] The tone of the examination for discovery was set by Mr. Hall, counsel for the defendants William Richard Currie and Patsy Arlene Currie, at the beginning of the examination.  Mr. Dungate asked the defendant William Richard Currie the following:

9 Q      One of the things I want to accomplish today, Dr. Currie, is I’d like to better understand this lawsuit from your perspective and your wife’s, so perhaps you can tell me in your own words what the lawsuit is about.

Mr. Hall:           Stop. That’s not the process, Mr. Dungate. You ask questions; he answers them.

10 Q    Mr. Dungate: This is my examination for discovery. I’m asking the questions. I just asked Dr. Currie to explain to me what the lawsuit is about. So, what’s the lawsuit about, Dr. Currie?

[14] The plaintiff wishes to ask questions relating to the pleadings in these proceedings. These types of questions were objected to during the examination for discovery. However, Mr. Wright, who was Mr. Hall’s agent for this application, is not opposed to these types of questions but rather argues that they should not relate to questions of law, or questions that had already been asked and answered at examination for discovery.

[15] In my view, the questions asked by Mr. Dungate relating to the pleadings were appropriate. I also agree with Mr. Wright that these types of questions should not relate to questions of law…

[21] An examination for discovery is similar to cross-examination at trial. The plaintiff, in this case, should have been given a wide latitude to explore the relevant issues in the time allotted by the Rules. The Plaintiff was not able to do this on many of the issues that he was trying to explore.

[22] I order that the defendant William Richard Currie shall attend and submit to a further examination for discovery which will have a maximum duration of four hours. This examination for discovery shall be set in consultation with counsel for the plaintiff and counsel for the defendant William Richard Currie.

[23] I order that the plaintiff will be at liberty to ask questions relating to the “pleadings” and the letter marked as “Exhibit 29” at the examination for discovery held on March 9, 2012.

Practice Direction 36 – Trial Management Conferences Allowed to Be Waived by Consent

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure.

(UPDATE – August 31, 2012 – PD 36 has been repealed and replaced with PD 37)
Addressing concerns that mandatory Trial Management Conferences add unnecessary time and expense to litigation, Practice Direction 36 comes into force on September 4 which will allow parties to BC Supreme Court Civil and Family matters to apply to waive TMC’s.
The waiver of TMC’s is limited to Vancouver Registry trials 9 days or less in duration with no self-represented litigants involved.  Hopefully this directive will be expanded Province wide.

Rule 11-6(8) Interpreted to Limit Scope of Expert Witness File Disclosure

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure. 1 Comment on Rule 11-6(8) Interpreted to Limit Scope of Expert Witness File Disclosure


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the scope of expert witness file disclosure requirements under Rule 11-6(8).  In short the court held documents created after the preparation of the expert opinion need not be disclosed.
In today’s case (First Majestic Silver Corp. v. Davila) the Plaintiff made a mid-trial application requesting “notes made by the Defendants’ experts during the course of the trial when the Plaintiffs experts were testifying“.  The Defendant opposed arguing the new rules of court did not require production of such records.   Mr. Justice Myers agreed and provided the following comments:

[8]      While the plaintiffs referred to Rule 11-6(8) at the outset of their argument, the main thrust of their submission was based on the common law prior to the new rules.  I will elaborate that after I summarise the defendants’ position.

[9]      The defendants argued that the Rule replaced the common law.  They submitted that the rule limits production to what was clearly stated in the rule, namely the “contents of the expert’s file relating to the preparation of the opinion” [emphasis added].  Since their experts had already delivered their reports and therefore formulated their opinions (beyond which they were not entitled to go when giving evidence) the notes made during trial could not relate to that.

[10]    In reply, the plaintiffs argued that the only thing the rule does is to push back the time at which the expert’s file must be disclosed.  Under the prior case law, this was when (and only if) the expert takes the stand, and then the whole file need be disclosed.  They argue that the rule requires the same disclosure to be made, but in advance.  Relying on Lax Kw’alaams, they submit that there is no distinction between the different capacities of an expert when generating the file materials.  Rather, the whole file relates to an expert’s credibility once he or she takes the stand and must be produced.

[11]    On the plain wording of the rule, I do not agree that it only modified the timing for the disclosure.  The words “relating to the preparation of the opinion” must be given some meaning.  In effect the rule settles the gray area dealt with in the decisions cited above.  I therefore decline to order the notes made during the course of the trial.

Litigation Privilege Claim Fails Due to the 'Two Hats' of ICBC

Written by admin on . Posted in Civil Procedure, ICBC No-Fault (Part 7) Benefits, Uncategorized. 45 Comments on Litigation Privilege Claim Fails Due to the 'Two Hats' of ICBC

(Update February 12, 2015 – the below decision was overturned in reasons for judgement released today by the BC Court of Appeal)
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I previously discussed the Two Hats of ICBC and suggested fixing the conflict of interest this creates.  Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, demonstrating this conflict of interest in action in the context of a litigation privilege claim.
In the recent case (Raj v. Khosravi) the Plaintiff was involved in a motor vehicle collision.  He was insured with ICBC and met with an adjuster to advance his claim.  After the initial meeting the ICBC adjuster commissioned the services of a private investigator who produced a report.
In the course of his lawsuit the Plaintiff requested a copy of this report but ICBC refused to provide it arguing it was subject to litigation privilege.  The plaintiff argued that the report was commissioned in the ‘investigative stage’ following the collision and further that even if the report was in part prepared for the purpose of defending subsequent litigation, it was also commissioned in the context of his claim for Part 7 benefits.  Mr. Justice Groves agreed and ordered the report to be disclosed.  The Court provided the following reasons:
[29] It is clear there were two distinct purposes for this investigative report.  That is conceded by the Defendant.  The question then becomes, was the dominant purpose litigation?  And has the defendant met the onus of satisfying the court that in fact the dominant purpose was litigation?…
[49]  I am also of the view that the defendant’s claim for privilege must fail, in regards to a dominant purpose analysis.  Again, assuming that we’ve gotten over the litigation privilege hurdle, here this investigation, by the adjuster’s own admission, had more than one purpose.  As such, the onus of claiming and eliminating the competing purpose rests on the defendant.
[50]  I agree with the submission of the plaintiff that, during the entirety of the evidence of the adjuster, both in affidavit and during his cross-examination on his affidavit, there is a strong suggestion, a clear suggestion, that the purpsoe of this investigative report was a true dual purpose report.
[51]  Again, the information obtained by the adjuster, at his interview with the plaintiff on November 14, 2006 was information necessary to potentially adjudicate a tort claim, and potentially adjudicate a Part 7 claim.  In discovery, the adjuster confirmed that he had retained the investigator during the meeting with the plaintiff, that “the intention is to get information that is going to contradict what I was told in the initial appointment”.
[52]  What he was told in his initial appointment related to both Part 7 claims as well as tort claims.  The adjuster seemed to draw no distinction in the investigation, as to which of those two claims is to be covered or emphasized.  As such, the onus of showing that the dominant purpose of the report was litigation cannot be met, on the evidence.
[53]  Based on what I have said, I will allow the appeal of the master in regards to the report of the investigator, dated December 15, 2006 and order that it be disclosed.
To my understanding this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

Limitation Periods Not Determinative When Adding Parties to Existing Litigation

Written by admin on . Posted in BCSC Civil Rule 6, Civil Procedure, Uncategorized. 60 Comments on Limitation Periods Not Determinative When Adding Parties to Existing Litigation

One of the exceptions to the strict application of limitation periods relates to adding parties to existing litigation.  In these circumstances an expired limitation period is not, in and of itself, a barrier to add a party to a lawsuit in the BC Supreme Court.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Haworth v. Haworth) the Plaintiff was injured while riding as a passenger in a vehicle driven by her husband in 2007.  The vehicle lost control in icy conditions.  She sued him for damages.  In the course of the lawsuit ICBC plead the “inevitable accident” defence and eventually added the appropriate road maintenance company as a Third Party.  The Plaintiff then sought to add this party as a  Defendant.  The Road Maintenance company objected arguing, among other matters, that the limitation period to sue them has expired.  Master Keighley found this unpersuasive and granted the Plaintiff’s application.  In doing so the Court provided the following reasons:
[39] There is, as previously confirmed, a presumption of prejudice if a proposed defendant will be deprived of a limitation defence by his addition as a party. Also, as previously indicated, the relevant period during which prejudice is to be assessed is that which follows the expiration, in this case, of the three year period following the date upon which the cause of action arose. The plaintiff will certainly suffer prejudice if her application is dismissed. She will lose a possible claim against a party or parties with potential liability. This issue, Wilson J. indicates in Walsh v. Blair, Vancouver Registry, Action No. M015646, BCSC, said as follows:

[22]      There is prejudice to the plaintiff in that if the application is not allowed, she will lose a right to claim against a party with potential liability. As noted in Takenaka v. Stanley (2000), 91 B.C.L.R. (3d) 179 (S.C. Master), that will usually outweigh the loss of a potential limitation defence to a potential defendant. Generally, the courts are reluctant to deprive a plaintiff of his or her day in court, so that the trend in the cases appears to be that it will take more than theoretical prejudice to outweigh the loss of that potential claim.

[40] The plaintiff’s potential peril becomes more significant when one considers that, should the application be dismissed, and should the present defendant succeed on the issue of unavoidable accident, she will be left without remedy although blameless with respect to the circumstances of the accident.

[41] Neither Her Majesty the Queen or Argo Thompson allege, as is often the case in such applications, that they have been prejudiced by an inability to investigate the claims against them. HMTQ has, of course, been aware of the potential claim since May 12, 2011 when the application to add the Third Parties was brought. There was no evidence of any investigation conducted by HMTQ after that date to the present. While it seems likely the government representatives would have discussed the potential claim with representatives of Argo Thompson at an early date, there is no evidence of that and I can make no such assumption. With respect to itsinvestigation, Argo Thompson says as follows (and this appears in Affidavit No. 2 of Yvonne Van Vliet, a paralegal in the employ of Argo Thompson’s counsel):

14.       Attached as Exhibit “J” to this affidavit is a true copy of the timecard signed by plough operator Chris Jones on November 12, 2007. Mr. Jones’ timecard indicates that he commenced his shift at 5:00 p.m., on November 12, 2007 and worked until 4:25 a.m., on November 13, 2007. On his timecard he recorded applying 41 cubic meters of winter abrasive (activity 310B) to the Coquihalla Highway during his shift.

15.       On May 22, 2012 I was informed by Tom Bone, General Manager for Argo, during a teleconference, that Chris Jones has not been employed with Argo since 2008, nor has Argo been in contact with him since 2008. Furthermore, Mr. Bone informed me that Argo is not aware of Chris Jones’ current address or contact information.

[42] There is no indication that Mr. Jones cannot be found, what reasonable steps have been taken to locate him, or even whether his evidence, beyond that contained in the records, is required for the defence of these claims. With respect to records, there is no evidence to suggest that any are missing or have been destroyed.

[43] In the circumstances, I find that there is no prejudice to these proposed defendants in making the order sought, whereas the potential prejudice to the plaintiff, should she be deprived of potential claims, is overwhelming. An order will go in the terms of the application. Costs will be in the cause.

Party Substitution Orders and ICBC Unidentified Motorist Claims

Written by admin on . Posted in Civil Procedure, Uncategorized.


As previously discussed, when injured by the fault of an unidentified motorist in BC, a Plaintiff can sue ICBC directly for damages in place of the unknown motorist provided section 24 of the Insurance (Vehicle) Act is complied with.
After a lawsuit starts, if the unknown motorist becomes known then the Plaintiff can substitute the appropriate party.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an application and, interestingly, denying it alleging the Plaintiff failed to identify the appropriate party in a timely fashion.
In this week’s case (Turnbull v. ICBC) the Plaintiff was allegedly injured when struck by a customer at his store.  The Plaintiff failed to properly record the licence plate information of the motorist.  The Plaintiff sued ICBC and as the litigation progressed the Plaintiff believed he was able to identify the offending motorist through employment records identifying the correct licence plate of the vehicle alleged to be involved.
The Plaintiff brought an application to substitute this person into the lawsuit.  The application was denied with Master Caldwell providing the following reasons:

[22] In the present case, the plaintiff knew of the existence of documentation which would have identified potential defendants at the time of and at all times following the alleged incident.  The plaintiff retained counsel shortly after the incident.  The plaintiff and his counsel were aware well before the expiry of the limitation period that identification of the vehicle and driver was a central and important issue in the claim.  No application was made during the limitation period, or even during the year following the expiry of the limitation period, to pursue the documents which the plaintiff knew existed and knew might well identify the vehicle and the driver.

[23] In short the plaintiff, and the plaintiff alone, bears the responsibility for the failure to identify potential defendants in a timely fashion and certainly within two years of the incident plus one year to serve.  In such circumstances, if limitation periods are to have any meaning and effect in our system, the interests of justice and the potential prejudice to the intended defendant outweigh the interests of the plaintiff.

I question the correctness of this decision given section 24(6) of the Insurance (Vehicle) Act which provides as follows:

(6) If the identity of the unknown owner or driver is ascertained before judgment is granted in an action against the insurer as nominal defendant, then, despite the limitation period in the Motor Vehicle Act, that owner or driver must be added as a defendant in the action in substitution for the corporation, subject to the conditions the court may specify.

This lack of duty when seeking to substitute parties under s. 24(6) should not be confused with a Plaintiff’s duty to continue to make all reasonable efforts to ascertain the identity of the unknown motorist to maintain a section 24 action against ICBC through to trial.
I understand that the above decision is under appeal and if further reasons are issued addressing this I will provide an appropriate update to this post.

Court Orders Particulars of Special Damages to Be Disclosed at Case Planning Conference

Written by admin on . Posted in BCSC Civil Rule 5, Civil Procedure, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to provide particulars of claimed special damages.
In this week’s case (Amezcua v. Norlander) the Plaintiff was injured in two collisions.  The Defendants applied, at a Case Planning Conference, that the Plaintiff produce particulars of special damages.  In agreeing that this was an appropriate order Master Baker provided the following reasons:

[5] …In particular leading authorities on pleading confirm that it is appropriate to expect a party to plead details of special damages and, if they are not given, to demand particulars.  The author of Odgers On High Court Pleading and Practice cites, as an illustration, Hayward v. Pullinger & Partners Ltd.:

But when any special damage is claimed, without sufficient detail, particulars will be ordered of the alleged damage…

More recently and locally the authors of Conduct of Civil Litigation in British Columbia comment:

Special damages must explicitly be claimed and proved.

And further, in relation to past wage loss:

…but the weight of the authority treats these as special damages which therefore must be specifically pleaded; the defendant is also entitled to particulars.

I cite this latter quote not in respect of wage losses per se, but for the implicit assumption that a defendant is entitled to particulars of special damages.

[6] I cannot see, then, why a party should not be required to particularize his or her special damages to date.  The same, of course, cannot be said for general damages, but the defence is not asking for that.  The plaintiff will therefore give particulars of her special damages to date.

Diminished Earning Capacity – Expert Fact vs Opinion

Written by admin on . Posted in Civil Procedure, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the admission of evidence relating to diminished earning capacity in which the Court highlights the ability of lost opportunities being proven through factual, as opposed to opinion, evidence.
In this week’s case (Fabretti v. Singh) Plaintiff was employed as a Regional Vice President at an independent financial services organization.  The Plaintiff was injured in a collision and advanced a claim for diminished earning capacity.
In the course of the claim the Plaintiff obtained a report from his employer’s National Sales Director who provided evidence with respect to the Plaintiff’s employment opportunities.  The Defendant objected to the admissibility of this report for a number of reasons.  Mr. Justice Savage ultimately held that the report was not admissible as it was not written by a ‘properly qualified expert‘.
The Court noted, however, that much of the evidence could likely be admitted simply as a matter of fact (as opposed to opinion).  In doing so the Court provided the following reasons:

[19] In this case, the subject matter of Mr. Andruschak’s Report is the plaintiff’s future earning capacity. However, Mr. Andruschak’s experience is properly viewed as concerning the earning possibilities for RVPs at Primerica generally; his experience is not in preparing objective reports on how such earning possibilities might manifest themselves in specific individual into the future.

[20] Thus, while having firsthand knowledge and experience in RVPs’ earning potential at Primerica, based on their actual earnings, which is information that may be useful to the Court, Mr. Andruschak does not offer particular expertise in the subject matter of the Report, purporting to prepare an objective estimate of future income and thus income loss for a specific person. As such, on the basis that Mr. Andruschak does not qualify as an expert, the Report cannot be admitted on that basis.

[21] Given my findings regarding Mr. Andruschak’s qualifications as an expert, it is unnecessary for me to canvass the defendant’s arguments regarding the Report’s formal compliance with the Rules. As I have said, however, much of the information in the report is potentially relevant and germane. I will leave it to counsel to review and discuss that matter amongst themselves. If required I will make further rulings on the proposed evidence. It may be that Mr. Andruschak’s evidence would be better presented simply viva voce with the assistance of a few graphs or charts.