Plaintiffs Need Not Reply: Motion Striking Reply Expert Report As Violating The Rule Against Case-Splitting Granted

A motion to strike a plaintiff's reply expert report on a motion for leave under Part XXIII.1 of the Securities Act (Ontario) has been granted on the basis that the rule against case-splitting prevents a party from offering new evidence outside of the matters already raised since it risks setting a "litigation trap."

Key Takeaways

• Only proper reply is permitted. Reply evidence is only permitted when a responding party has raised a new matter that could not reasonably be anticipated by the plaintiff or where it is in response to an existing issue expanded upon in a manner that could not have been reasonably foreseen.
• Whether reply evidence amounts to case-splitting must be determined on a case-by-case basis. Courts will look to the individual circumstances and exigencies of each case to determine whether it is appropriate to allow reply evidence, paying particular attention to whether each party has a fair opportunity to present its case and respond to the