During a trial of an issue on damages arising from an application, the applicant objected to numerous pieces of viva voce evidence introduced by the respondents.
The court had previously directed that the damages trial proceed on the closed record as it existed when the application was initially argued.
The court applied a bright-line test, ruling that any evidence not actually found in the underlying application record was inadmissible to prevent trial by ambush.
The court sustained the majority of the applicant's objections, rejecting the respondents' arguments that the new evidence was merely a permissible amplification of the existing record or a necessary response to the applicant's expert.
