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Fridays With Rogers Partners

At this morning’s muffin meeting, we discussed the test for admitting an expert’s reply report after the expert has already testified at trial. We also considered a decision which addressed whether the court had jurisdiction over an employee’s LTD claim against her insurer or whether the claim is subject to the grievance and arbitration procedures under the union’s collective agreement.

Reply Report of Experts

Micah Pirk O’Connell indicated that, in certain circumstances, a party may be permitted to serve a reply report of an expert witness after the expert has already testified at trial.

Justice Morgan went over the applicable test in Barker v. Barker, 2019 ONSC 7108.

The discretion to admit a reply report when the expert has already testified arises only where the defendant has raised some new matter or defence that the plaintiff had no opportunity to deal with and which the plaintiff could not reasonably have anticipated.

Further, the new evidence from the expert must be tendered in response to evidence that arose from the opposing side’s witness’ testimony in chief. It is not permissible to adduce new evidence in response to something that was only elicited from an opposing witness in cross-examination.

LTD Claim Dismissed for Lack of Jurisdiction

Matthew Umbrio discussed a decision in which the Court of Appeal agreed with a long-term disability (“LTD”) insurer that the court did not have jurisdiction over an employee’s LTD claim.

In Hutton v. Manulife, 2019 ONCA 975, an employee was a member of a union. The union contracted with Manulife to provide LTD benefits.

Following an automobile accident, the employee received LTD benefits for around 17 months before Manulife determined that she was no longer eligible.

The employee filed a grievance with her employer using the grievance procedure set out in the collective bargaining agreement. She eventually settled her grievance.

The employee also sued Manulife claiming breach of contract, entitlement to LTD benefits, and punitive damages.

The Court of Appeal agreed with Manulife that the action could not proceed. The collective agreement contained “strange” and “unique” provisions that employees are required to resolve their LTD disputes by grievance and arbitration with the employer, rather than by litigation against the insurer.

As a result, the Court of Appeal stated that the employee has no entitlement to resort to the court for additional compensation from Manulife.