ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-50314

DATE: 2015/07/30

BETWEEN:

417 Infiniti Nissan Limited
Plaintiff

– and –

Nissan Canada Inc.
Defendant

Rocco Dipucchio, Shaun Laubman and Matthew Law, for the Plaintiff

William G. Scott and Ryann Atkins,
for the defendant

HEARD: by written submission

REASONS for decision on:

a) Should Mr. Dimond be permitted to testify about the opinions expressed in his second supplemental expert report that was served on May 8, 2015?and

b) Should a series of maps and charts prepared by John Frith from the 2005 Market Study data be introduced?

r. smith j.

[1] On May 8, 2015, during a break in the trial, Nissan Canada Inc. (“Nissan”) served a second supplemental expert report from Mr. Dimond. Nissan seeks permission to allow Mr. Dimond to testify about the opinions expressed in his second supplemental expert report. On May 15, 2015, Nissan also served a number of maps and documents created by John Frith, which I understood were from the 2005 Market Study Data he recently discovered.

[2] On May 19, 2015, I ruled that Mr. Dimond could testify about matters in his second supplemental expert report and that Mr. Frith could testify about the factual data recently discovered by him which was used for the 2005 Market Study as well as the charts and maps he had produced from this data.

[3] Later in the week of May 19, 2015, the plaintiff requested written reasons for my decision. I requested written submissions from the parties on the issues, a copy of Mr. Dimond’s second supplemental expert report and the charts and maps created by Mr. Frith, and I reserved the right to change my initial ruling after review of the material and after considering submissions.

ISSUE #1 – Should Mr. Dimond be permitted to testify about the opinions expressed in his second supplemental expert report that was served on May 8, 2015?

[4] 417 Infinity Nissan Limited (“417”) objects to allowing Mr. Dimond to testify about his second supplemental expert report served on May 8, 2015 for the following reasons:

(a) It would be unfair and would cause it prejudice to allow Mr. Dimond to testify about opinions expressed in this second supplemental report after the trial has commenced and after many of the plaintiff’s witnesses have testified;

(b) Nissan has repeatedly ignored its production and disclosure obligations under the Rules, which threatens to unduly prolong the trial;

(c) The second supplemental report of Mr. Dimond responds to the issue of whether certain census tracts to the west were properly added to 417’s PMA in 2011. 417 submits that its position on this issue was known by Nissan by October 2014 and Mr. Dimond already responded to this issue in his supplemental report of November 28, 2014;

(d) Nissan has violated the schedule for filing expert reports ordered by Master Roger by serving a further expert report in the middle of the trial after the plaintiff as called many of its witnesses; which results in a trial by ambush;

[5] Nissan argues that it would be fair and reasonable to allow Mr. Dimond to testify about the opinions he expressed in his second supplemental expert report because:

(a) it was produced in response to Mr. Arifuzzaman’s (417’s Market Study expert) supplemental report served on April 22, 2015, which contained new opinions and it should be given an opportunity to respond;

(b) 417 brought a motion at the commencement of trial to amend its pleadings to allege negligence by Nissan in the preparation of the 2007 Market Study. The plaintiff’s motion to amend was granted; however, the expert witnesses were permitted to file supplemental expert reports by April 17, 2015 (extended to April 22, 2015 on consent) in response to the new allegations of negligence as well as to the data recently discovered by Mr. Frith used in the 2005 Market Study.

Analysis

[6] I find that allowing Mr. Dimond to testify about the opinions expressed in his second supplemental expert report served on May 8, 2015, would not be unfair or amount to an ambush for the following reasons:

(a) 417 was allowed to amend their pleadings at the beginning of this trial to allege negligence with regards to the preparation of Nissan’s 2007 Market Study, in addition to negligent representation by Nissan. I also ruled that the recently discovered data by Mr. Frith, used in the 2005 Market Study, could be introduced. As a result of the pleadings amendment and the recently discovered 2005 Market Study data, both parties were permitted to file supplemental reports from their Market Study experts. Both parties had an opportunity to respond to the new allegation of negligence by Nissan in preparing the 2007 Market Study and to the newly discovered evidence by Mr. Frith so that neither party would be taken by surprise or ambushed;

(b) Mr. Dimond had previously replied to the plaintiff’s expert report on the issue of the appropriateness of allocating certain census tracts to 417 located to the west of its PMA. However, in his supplemental report on April 22, 2015, Mr. Arifuzzaman offered an additional opinion on the above issue after considering the Frith data. Both parties’ experts have been able to evaluate the data discovered by Mr. Frith and file supplemental reports based on this new data. Both parties’ market Study experts were also aware that the appropriateness of awarding census tracts to the west of 417’s PMA in 2011, was an issue for trial. Both parties were aware that this issue formed part of the allegations of negligence and bad faith conduct made against Nissan.

(c) 417’s market study expert, Mr. Arifuzzaman, had the opportunity to review Mr. Dimond’s second supplemental expert report and has had sufficient time to prepare and testify about the contents of this supplemental report. Allowing Mr. Dimond to serve a further supplemental report replying to Mr. Arifuzzaman’s supplemental report does not give Nissan an undue advantage as both expert witnesses were allowed to testify about each other’s expert opinions. I find that this approach is procedurally fair and has not caused any prejudice to 417.

(d) My previous ruling did not prohibit the delivery of a reply by Mr. Dimond, and if the right of reply had been requested it would probably have been granted.

(e) I am not able to make any findings about Nissan’s alleged failure to make disclosure in accordance with the Rules. Allowing Mr. Dimond to give evidence about his second supplemental expert report does not prejudice 417 or unduly prolong this trial because this issue was already raised in both experts’ previous reports, and neither is taken by surprise.

Disposition of Issue #1

[7] For the above reasons Mr. Dimond shall be permitted to testify about the opinions expressed in his Second Supplemental report served on May 8, 2015.

c) ISSUE #2 – Should a series of maps and charts prepared by John Frith from the 2005 Market Study data be introduced?

[8] I previously ruled that Mr. Frith could testify as a fact witness about the data he recently discovered, that was used by Nissan to prepare the 2005 Market Study. I did not rule on whether Mr. Frith would be qualified or permitted to testify as an expert witness and left this issue to be determined later.

[9] On April 17, 2015, Mr. Frith provided a report setting out the data that he had recently discovered in February of 2015. This data was referred to in his affidavit filed in response to 417’s motion to amend its pleadings to allege negligence by Nissan in its preparation of the 2007 Market Study.

[10] On April 22, 2015, Mr. Arifuzzaman, 417’s Martket Study expert witness, filed a supplemental report considering the data recently discovered Mr. Frith.

[11] On May 8, 2015, Nissan served 417 with Mr. Dimond’s Second Supplemental report in response to Mr. Arifuzzaman’s April 22 report.

[12] On May 11, 2014, Nissan served a further report from Mr. Frith including maps and charts that he had created from the data. This report was generated at defence counsel’s request to respond to Mr. Arifuzzaman’s supplemental expert report served on April 22, 2015. Nissan had already obtained a further report from Mr. Dimond to reply to Mr. Arifuzzaman’s April 22, 2015 report.

[13] My previous rulings did not allow Nissan to file a new expert report from anyone other than the existing Market Study expert witnesses to comment on the Frith data. The intent of my previous rulings was to allow the data recently discovered by Mr. Frith to be introduced into evidence and to allow each party’s Market Study experts to provide supplemental reports taking this data into account.

[14] Mr. Frith had not provided an expert’s report in accordance with the order of Master Roger respecting expert reports. Mr Frith was not authorized by the Court to file a fresh expert report to respond to the supplemental expert report of Mr. Arifuzzaman dated April 22, 2015. Mr. Dimond was allowed to provide a supplemental expert report to deal with Mr. Frith’s recently discovered data, and as I have ruled, to reply to Mr. Arifuzzaman’s supplemental expert report setting out opinions based on the Frith data.

[15] In my previous ruling, I intended that that maps and charts generated from Mr. Frith’s data used in the 2005 Market Study would be admissible to help explain and understand 2005 Frith data.

[16] Mr. Frith’s report dated May 28, 2015, attached at Tab N to 417’s submissions contains 22 maps and charts along with opinions expressed by Mr. Frith. This report was prepared to respond to Mr. Arifuzzaman’s supplemental report. In the first paragraph of his letter dated May 20, 2015, Mr. Frith stated: “These exhibits were prepared in response to the Report dated April, 2015.”

[17] At paragraph 2, Mr. Frith stated that he had provided a map of the census tracts added in 2011 with the 2007 Planning Volumes data as requested by counsel. The evidence of the census tracts that were added to the west of 417’s PMA has already been referred to in evidence. Mr. Dimond will provide expert opinion evidence for the defence on this issue at trial. Mr. Frith’s May 28, 2015 report does not appear to be data in the form of maps and charts used by Nissan in preparing its 2005 Market Study as it refers to 2011 allocations of census tracts.

[18] I find that 417 would not be prejudiced by allowing any charts or maps generated by Mr. Frith from the data he recently discovered that was used in the 2005 Market Study. My previous oral ruling did not allow either party to file any fresh expert reports during the trial.

Disposition of Issue #2

[19] To the extent that the charts and maps presented by Mr. Frith in his report of May 28, 2015 relate to the data used in the 2005 Market Study, they may be introduced at trial. Any charts or maps generated from this data would help me to understand the data that was discovered by Mr. Frith. The data, maps and charts have been reviewed by the Market Study expert witnesses of both parties and they have, been permitted to provide supplemental reports and to testify about this data. Mr. Frith has not been authorized to provide a new expert report to further respond to Mr. Arifuzzaman’s supplemental expert report.

Costs

[20] If the parties are unable to agree on costs, submissions may be made within 10 days.

R. Smith J.

Released: July 30, 2015