By Barbara E. Cotton and Bill McNally

Counsel sometimes find themselves in a situation where they seek to admit an expert report, but Rule 218.1 of the Alberta Rules of Court will not have been complied with. This article will review the case law regarding late admission of expert reports, and how can it be argued that there is no prejudice.

The leading case in this regard is Wade v. Baxter, and this case holds that, assuming that non-compliance with Rule 218.1 does not amount to an abuse of process, and the evidence is relevant and material, there should be a presumption in favour of having all of the evidence before the trier of fact.

In Wade v. Baxter the expert report was sought to be admitted late because of lawyer’s error, and it was admitted.

Wade v. Baxter also holds that a report should be admitted if the prejudice caused to the other party can be neutralized by an adjournment or costs.

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