Blizzard Uranium Corp. v. Nathanson, Schachter & Thompson LLP

2024 BCSC 2197 Blizzard Uranium Corp. v. Nathanson, Schachter & Thompson LLP

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Blizzard Uranium Corp. v. Nathanson, Schachter & Thompson LLP, 2024 BCSC 2197 Date: 20241021 Docket: S186535 Registry: Vancouver Between: Blizzard Uranium Corp., Eros Resources Corp. and Blizzard Finance Corp. Plaintiffs And Nathanson, Schachter & Thompson LLP and Murray Clemens Defendants Corrected Judgment: The front cover page of the judgment was corrected on February 28, 2025 Before: The Honourable Justice Branch Oral Ruling re Expert Report of Craig Ferris, K.C. Counsel for the Plaintiffs: H. Poulus, K.C. J. Ensom T. Latowsky K. Graham N. Hasegawa, Articled Student Counsel for the Defendants: C. Dennis, K.C. E. Aitken M. Ferreira Place and Date of Trial: Vancouver, B.C. October 21, 2024 Place and Date of Judgment: Vancouver, B.C. October 21, 2024 Table of Contents I. INTRODUCTION.. 3 II. BACKGROUND.. 3 III. ANALYSIS. 9 A. Non-Compliance with Rule 11-6(1) 9 B. Challenge to the Answer to Question 2. 12 i. Regurgitation. 13 ii. Wrong Version of the Code. 13 iii. Does Assessing the Duty of Loyalty Require Expert Evidence?. 14 iv. Ultimate Issue Rule. 17 IV. CONCLUSION.. 17 I. INTRODUCTION [1] THE COURT: The defendants have objected to the admissibility of the report of Mr. Craig Ferris, K.C., proffered by the plaintiffs in support of their allegation of solicitor's negligence against the defendants. [2] There is no dispute

that Mr. Ferris has the expertise necessary to provide a report on the standard of care of commercial litigators in British Columbia. Rather, the defendants object to his report on the basis that the report: a) fails to accurately detail the documents relied upon; and b) the plaintiffs' second question for Mr. Ferris sought and obtained unnecessary or improper opinion on a lawyer's duty of loyalty to their client. [3] I have concluded that the report, marked as Exhibit F for identification, should be admitted, but with certain modifications and additional material. II. BACKGROUND [4] The debate regarding the admissibility of Mr. Ferris's report is the consequence of a series of unfortunate events. Each step taken by each party was understandable, if perhaps not meeting the standard of perfection. [5] Unsurprisingly, the plaintiffs wished to obtain the most persuasive opinion possible, given the magnitude of their claim. It is not difficult to see why engaging Mr. Ferris would have been attractive, given his experience as the former president of the Law Society. [6] It is often only possible to secure expert evidence from outside the province given that experts are often understandably reluctant to criticize their immediate colleagues. In fact, this concern did rear its head in relation to the proposed retainer of Mr. Ferris. Mr. Ferris knows the defendant Mr. Clemens well. He

was not initially at ease assuming the role proposed by the plaintiffs. [7] Unsurprisingly, Mr. Ferris indicated that he would not be comfortable opining on Mr. Clemens' conduct unless he could assess whether the allegations had an air of reality. In other words, he was not inclined to simply accept any assumed facts for the purposes of preparing his opinion without assuring himself that those facts had some support in the materials. [8] Unsurprisingly, in their instruction letter dated May 11, 2022, the plaintiffs sought to address Mr. Ferris's concerns by providing him with an extremely comprehensive list of assumed facts running to 190 paragraphs. These are found at Tab C of Mr. Ferris's report. To provide Mr. Ferris with additional comfort, the plaintiffs footnoted almost every fact with a specific document reference. Most importantly for present purposes, they also provided Mr. Ferris with the referenced documents themselves, as well as transcripts of certain examinations for discovery. The documents provided are detailed in Tab D of the initial version of Mr. Ferris's report, marked as Exhibit E for identification. [9] Unsurprisingly, given his concerns, Mr. Ferris did review the documents provided to him, save for the discovery transcripts. Technically speaking, he could have simply accepted the statement of facts provided by the plaintiffs, but he did not do so. [10]

Unsurprisingly, having reviewed the documents, Mr. Ferris felt he should acknowledge his review in the body of his initial report marked as Exhibit E. He stated: At Tab D, I attach a list of documents upon which I have relied both with respect to their authenticity and for the truth of their contents. [11] Later, in the first paragraph under the heading "Key Assumed Facts" on page 3 of his report, he stated: The totality of the Assumed Facts is set out in Tabs C and D. [12] Tab D was also attached to the report. [13] Unsurprisingly, having received a report critical of their clients, the defendants raised objections to the report in a notice of objection dated August 5, 2022. [14] Unsurprisingly, given the general practice in this province, the defendants' objections were outlined at a high level of generality. The notice of objection stated as follows: 1. The subject matter of the report is based upon an incomplete statement of facts and is irrelevant to the matters at issue in this action, including in particular the answers to Questions 2(a) and 2(b).

2. Mr. Ferris, Q.C. has given evidence on matters that are not properly the subject of the expert evidence or, further or alternatively, on which he is not qualified to give, including his opinions given in answer in Question 1(a) as to what information the client needed to be properly informed by Mr. Clemens.

3. Mr. Ferris, Q.C. has given argument in the guise of expert evidence. [15] Unsurprisingly, the parties felt it necessary to have more detailed discussions about the true nature of their respective objections once they were facing the present trial's commencement date of October 1, 2024. Mr. Ferris was not scheduled to testify until the second week of trial. The defendants provided further detail on October 4, 2024, as follows: We write further to our letter of August 5, 2022, and our discussions at trial to advise of the specific portions of Craig Ferris, K.C.'s report dated May 27, 2022, that we say are inadmissible. The objection concerns all of Question 2 and one sentence in Question 1(a). The following sentence, indicated by underlining, of Mr. Ferris's opinion in response to Question 1(a) is inadmissible because it purports to be a finding of fact at page 7, third paragraph: Having been provided with this information, Mr. Clemens had sufficient knowledge to be on an inquiry to be careful with respect to the B claims. In order to comply with his obligation to be skilful and careful, as well as to consult with his client on all areas of doubt, he had an obligation to clarify the issue of the ownership of the B claims with his client before filing the First Amended Notice of Civil Claim, page 7, third paragraph. Question 2(a) and (b). The entirety of Mr. Ferris's response

into Question 2(a) and (b) is inadmissible on the basis that it is not necessary to assist the trier of fact. Further, and in the alternative, Mr. Ferris's response to both sub‑questions is replete with improper factual and legal conclusions. [16] Unsurprisingly, given the usual mid-trial scramble, the defendants overlooked one point and felt it necessary to later supplement their objection. On Sunday, October 6, 2024, counsel wrote: I have to advise of one further basis for threshold inadmissibility. I apologize that it was not in the communication I sent to you on Friday afternoon. It is covered by the first point in our letter of objection dated August 5, 2022. Our position is that the entire report is inadmissible for failure to set out clearly the facts on which the opinions are based. Mr. Ferris says at page 3 that "the totality of the Assumed Facts is set out in Tabs C and D." Tab D comprises 125 documents on which Mr. Ferris says on page 2 that he has relied both with respect to their authenticity and for the truth of their contents. One then would need to review every fact stated in each of the 125 documents, all of which he says he has assumed to be true, and then reconcile contradictions among them or between them and the facts stated in Tab C to know what facts it is that Mr. Ferris bases his opinions on. That does not meet the requirements of Rule

11-6(1)(f)(i). [17] Unsurprisingly, the plaintiffs were somewhat taken aback by this new formulation of the objections since, on a fair reading of the earlier communications, it was not so particularized. I cannot see how complaining that Mr. Ferris's statement of facts was "incomplete" could reasonably have put the plaintiffs on notice that the true nature of the objection related to: a) Mr. Ferris's processing and explanation of his use of the Tab D documents provided; or b) how Mr. Ferris could rely on the Tab D documents for their truth when they contained inconsistencies. [18] Indeed, as the plaintiffs note, the defendants' particularization could be viewed as inconsistent with their original objection, as the original objection appeared to be that there were not enough identified facts, while the last formulation of the objection was that there were too many identified facts. [19] Unsurprisingly, the Court attempted to see whether the objection could be managed in a mutually agreeable way in order to avoid the loss of precious trial time. There was an exchange with counsel wherein the Court probed whether simply excising any reference to Tab D would address the defendants' objection, given that Mr. Ferris did not appear to expressly rely on Tab D anywhere in the body of his report. The defendants did not take up that option as a potential solution. [20] Unsurprisingly

however, the plaintiffs did raise this potential solution with Mr. Ferris. On reflection, Mr. Ferris expressed regret for how he had framed his use of the Tab D documents in his report. He agreed that his report should be corrected by removing the first sentence noted above. Later, when two consequential changes were also identified to him on October 10, 2024, he agreed that those changes should be made as well. Hence, the final version of the report proposed for entry excises all references to Tab D, and was marked for identification as Exhibit F. [21] Unsurprisingly, the defendants maintained their objection notwithstanding the changes, and suggested that the changes only increased their concerns. [22] My review of this history is meant to communicate that, unsurprisingly, I find that all players were acting in good faith over the course of the evolution of this issue. I would even go so far as to say that each player was acting reasonably, to the extent that this term incorporates and accepts the possibility of relatively minor glitches, delays, misunderstandings and mistakes. Specifically, I would put the following interactions into this category: 1. In their instruction letter, the plaintiffs probably should not have tied the assumed facts so tightly and expressly to the documents provided to Mr. Ferris. That approach seems to have been the genesis of the difficulties that

developed thereafter. Assumed facts should generally be just that - assumed. It is then up to the party submitting the report to attempt to ensure that the facts proven at trial match those assumed facts to the greatest extent possible. By tightly tying the facts to actual documents and proposed evidence, it effectively compelled Mr. Ferris to decide what to do with the documents provided, and how to manage them in his report.

2. Mr. Ferris should have been clearer as to the reasons for his review of the documents, and the basis upon which he reviewed the documents. More clarity was necessary, given how unusual it was for a proposed expert to be provided with, in essence, a full set of "hot documents", not all of which could be easily reconciled with each other. Fact-finding from documents is more the role of the trial judge at the end of the day, assisted by oral testimony, assessments of credibility, witness explanations and counsels' submissions.

3. The defendants' original objection letter should have been less opaque in terms of the nature of the objections, although defendants' counsel is far from alone in creating this problem. The level of generality here was, unfortunately, all too common, as counsel seemed to treat the initial objection letters as simply a placeholder for more detailed objections developed later.

4. The defendants' first statement of particulars should have included the more precise complaint about the inclusion of, and reference to, Tab D. By the time the additional detail was provided, it was so close to Mr. Ferris's testimony that it was difficult for the plaintiffs to react "on the fly" to the issue once it was fully understood.

5. The Court should perhaps have been less eager to suggest a potential solution, which may have in turn encouraged the plaintiffs to move too quickly toward that solution.

6. Finally, Mr. Ferris should potentially have taken some additional time to make absolutely sure that his report was still compliant with the requirements of the rules before advancing or accepting any proposed changes. III. ANALYSIS A. Non-Compliance with Rule 11-6(1) [23] The Court has a duty to review each expert opinion to: a) ensure that the evidence meets the four criteria set out in R. v. Mohan, [1994] 2 S.C.R. 9, 1994 CanLII 80: (1) relevance, (2) necessity, (3) absence of an exclusionary rule, and (4) a properly qualified expert; and b) weigh the potential risk against the benefits of admitting the evidence; R. v. Bingley, 2017 SCC 12 at paras. 14 and 16. [24] I find that subject to my comments below regarding: 1. the best means of managing the limited technical non-compliance with Rule 11-6(1); and 2. Mr. Ferris's conclusion in relation to the second question; his report marked Exhibit F generally meets the basic requirements. [25] In my view, the combination of 1. the good faith of all players in the piece throughout; and 2. the relatively controlled nature of the various failings; lead me to invoke the curative provisions of Rule 11-7(6) to manage any residual difficulties. This Rule provides as follows: (6) At trial, the court may allow an expert to provide evidence, on terms and conditions, if any, even though one or more requirements of this Part have not been

complied with, if (a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part, (b) the non-compliance is unlikely to cause prejudice (i) by reason of an inability to prepare for cross-examination, or (ii) by depriving the party against whom the evidence is tendered of a reasonable opportunity to tender evidence in response, or (c) the interests of justice require it. [26] I decline to reject the objection on notice grounds. Although the original objection was, arguably, under-particularized, I find that the basic purpose of the objection service rule requirement was satisfied, and it certainly (if unfortunately) met the standard adopted by counsel in this province. [27] I accept that Exhibit F is technically non-compliant with Rule 11-6(1)(f)(iii), in that it now fails to expressly list every document relied upon by the expert in forming the opinion. However, in my view, I should exercise my discretion to admit the report in any event. Any residual failing with the report falls squarely within the intended operation of the curative provisions in sub-paras. (b) and (c) of Rule 11-7(6). Specifically: 1. There is very little likelihood of prejudice to the defendants associated with the admission of

Exhibit F as a full exhibit in the trial. The defendants had the ability to cross-examine Mr. Ferris on the first, second and final versions of his report. They were able to test whether, and to what extent, the changes to the report cast doubt on the core opinions proffered. They were able to attempt to undercut the weight of the report by highlighting the need for Mr. Ferris to make said changes and offer his explanation for same. They had access to the full list of documents in Tab D, even if Tab D was not included in the final proposed version of the report. They had the ability to test Mr. Ferris on the extent to which there were irreconcilable differences between various documents within the Tab D document package. They had the ability to highlight where and when Mr. Ferris may have gone outside the four corners of either the assumed facts or the documents provided to him, all of which will be material to the court's assessment of the weight of the report. (I note that there was agreement that the full cross-examination would be treated as part of Mr. Ferris's evidence in the trial proper, even though the cross-examination technically occurred within the framework of a voir dire.) 2. The cross-examination evidence itself largely fulfilled the purpose of Rule 11-6 by having Mr. Ferris explain which documents he relied upon and why. It is true that that explanation came late, but that is at least in part due to the defendants not properly particularizing their objection until very late in the day.

3. Any disagreement between the final form of the proposed opinion and the strict rules in Rule 11-6 is minor, particularly given that Tab C, which remains in the final version of the opinion, references every document provided under the removed Tab D, save for two additional discovery transcripts that Mr. Ferris stated he did not, in fact, review. The defendants have access to every document noted in Tab C. As such, I find that in substance, if not in form, Mr. Ferris has satisfied the provision of Rule 11-6, given that the documents upon which he relied to come to his opinion are clear.

4. That said, I will require that Tab D from the original opinion, which is Exhibit E on the voir dire, be marked as a full numbered exhibit so that there is a clear record of the documents that Mr. Ferris relied upon. In my view, the combined effect of the admission into evidence of Exhibit F, Mr. Ferris's cross-examination, and Tab D of Exhibit E, is functionally equivalent to the technical requirements of Rule 11-6.

5. In the interests of justice, the good faith of all players and the fact that the difficult situation arose because of, arguably, minor stumbles by each player in the piece, all favour a solution that does not demand the complete exclusion of Mr. Ferris's report. Given the magnitude of the claim, the Court requires as much assistance as possible to ensure that a proper result is reached. [28] The defendants raised the concern that there is an inconsistency between the first version of the report and the final version of the report, given the removal of all references to Tab D. However, I agree with the plaintiffs that there is always going to be an element of inconsistency when an expert amends or corrects their report on their own initiative or in response to concerns raised by the parties. I find that this inconsistency is not fatal to the admission of the report, given the reasonable explanation that Mr. Ferris has provided for the change. While it is true that Mr. Ferris understood his obligations when he included this sentence initially, that does not mean that Mr. Ferris should be prevented from advising the Court at a later point that the report needs to be adjusted to reflect his true and accurate intention. B. Challenge to the Answer to Question 2 [29] The defendants raise a second more targeted set of concerns with respect to Mr. Ferris's response to the second

question posed by the plaintiffs relating to a lawyer's obligation after the discovery of an error or omission. [30] The defendants assert that: 1. Mr. Ferris's opinion on the second question is nothing more than a regurgitation of the Code of Professional Conduct [Code]; 2. Mr. Ferris relied upon the wrong version of the Code; 3. Mr. Ferris's opinion on the duty of loyalty cannot be received by the Court, as it should not raise issues regarding the duty of care; and 4. the penultimate paragraph of Mr. Ferris's opinion encroaches upon the ultimate issue the Court is to decide. i. Regurgitation [31] In Bryce v. Rala Investments Ltd., 2020 BCSC 51, Justice G.C. Weatherill held as follows: [17] It is not the function of an expert in court proceedings to simply regurgitate plain language he or she has read in text books, periodicals or, as in this case, in a statute and regulations and related bulletins, and them simply opine on the outcome of a case based upon those readings. Such postulations are neither necessary nor relevant. The court is fully capable of reading and understanding such passages. [32] Although Mr. Ferris's opinion relies quite heavily upon the Code, it offers more. Specifically, he speaks to the extent to which the Code is actually accepted as containing appropriate directions as to how counsel should conduct themselves. It is useful to have such assurance;

i.e., confirmation that the Code is used by litigators as real practical guidance, rather than being simply aspirational or "observed in the breach". Mr. Ferris states: In my experience, compliance with this chapter of the Code forms part of the standard of care expected of a commercial litigation lawyer in British Columbia. In my experience, there are no modifications or glosses on this chapter of the Code. ii. Wrong Version of the Code [33] In cross-examination, Mr. Ferris confirmed that he relied on the 2013 version of the Code, which came into force on January 1 of that year. Prior to that time, the relevant document was the Professional Conduct Handbook. The defendants say that this alleged error drains the report of its usefulness, given that the core issues in this case arose prior to January 1, 2013. [34] However, I find that given that: a) the alleged misconduct allegedly continued up to the final distribution of the settlement funds in 2014; b) there was communication sent in 2013 alleged to have been misleading; and c) it is arguable that the provisions of the earlier governing document may not be materially different; I cannot say that the reliance on the 2013 Code is fatal to the admissibility of the report. If anything, it may go to weight. iii. Does Assessing the Duty of Loyalty Require Expert Evidence? [35] The defendants rely on the following passage from

Ziolkoski v. Unger, 2023 ABKB 110, in arguing that no opinion evidence should be admitted that goes to the duty of care: [13] Finally, I have reviewed the authorities considering the question of when the courts have found expert evidence from legal practitioners to be necessary, and when such evidence has been excluded as unhelpful. These cases hold that such evidence is generally admissible to determine the nature of the standard of care applicable to lawyers, but is generally inadmissible to determine the existence of a duty of care... [36] The defendants complain that the following excerpt from Mr. Ferris's report refers to the standard of care when the question posed was directed to the duty of loyalty: From approximately 2008 to 2014, the standard of care for a lawyer practicing commercial litigation in British Columbia required a lawyer in informing the client of an alleged or potential error or omission, to comply with his or her duty of honesty and candour (to inform the client of all information known to the lawyer that may affect the interests of the client in the matter) as well as his or her overarching duty of loyalty. These professional obligations required a lawyer to inform the client ... [37] The use of the term "standard of care" in this paragraph may have been somewhat loose, and it may have been more proper to refer to counsel's usual "course of conduct". I

find that the report can fairly be read as using the term in a more vernacular sense. Read in its entirety, it is clear that the paragraph simply seeks to inform the Court about how commercial litigators practically implement the general guidance about the duty of loyalty provided by the Code. I find that the Court would benefit from such guidance in the circumstances. [38] I note that the excerpt from Ziolkoski does not suggest that there is an absolute ban on receiving such evidence; just that it is not generally admissible. In this case, I find that it would be helpful to the Court. [39] The defendants also rely on Justice Adair's comments in Huang v. Li, 2020 BCSC 1727, to suggest that expert evidence is not needed to address an alleged breach of the duty of loyalty. In Huang, the Court stated: [511] However, in my view, Mr. MacKenzie's report fails to meet the necessity criterion for admissibility. [512] As I read Mr. MacKenzie's report, his opinions and conclusions on the issues he was asked to address are based primarily on his application of case authorities, together with the Code and the Federation of Law Societies' Model Code of Professional Conduct, to facts he was asked to assume. He purports to educate the court on what the outcome should be based on his reading of those authorities, the Code and the Model Code. [513] However, it is my job as the trial judge (with

the assistance of counsel) to identify the applicable law (both caselaw and other authorities) relevant to the claim of breach of fiduciary duty, to interpret and understand that law and then apply it to the facts that I find. I do not need an expert, such as Mr. MacKenzie, in order to do this. Having Mr. MacKenzie's opinion does not mean that I will not be required to read and consider the relevant authorities (including the Code, to the extent it is relevant to the allegations of breach of fiduciary duty) in the context of deciding the issues raised by Ms. Li's and LPP's counterclaim. Binding authorities such as Strother and Galambos explain how and in what circumstances publications such as the Code might be relevant in the context of a claim of breach of fiduciary duty by a lawyer. In my opinion, there are no efficiencies to be gained by admitting Mr. MacKenzie's report as evidence in this trial. [514] In addition, I agree with Mr. McLeod's submissions that Mr. MacKenzie's report is unnecessary because it is essentially legal argument in the guise of evidence. There are no advantages to the trial process to having Mr. MacKenzie's views and opinions presented to the court as expert evidence, as opposed to those positions being advanced by counsel in closing submissions. [Emphasis in original.] [40] I do not see that Justice Adair was establishing a "hard-and-fast" rule that

expert evidence may never be helpful in assessing whether a lawyer's duty of loyalty has been breached. In this case, I find that there are "efficiencies to be gained" by the admission of Mr. Ferris's evidence. It is helpful to have confirmation as to whether and when a solicitor would usually bring an error to the attention of their clients: Odobas v. Yates, 2021 BCSC 2320 at para. 27. [41] Applying the approach set out in Odobas at para. 39: a) there is no agreement that the alleged breach was in a non-technical matter; b) there is no agreement that the alleged breach was in an area that an ordinary person may be expected to have knowledge; and c) I am unable to determine at this stage whether the defendants' actions fell so far below the expected standard such that it was clearly a breach of any standard. [42] As the plaintiffs stated in their argument: 67. Question 2 addresses the period following the discovery of the error. Up until then, the issue is solely one of the standard of care and the factors discussed above apply. The duty of care and the corresponding standard of care do not cease upon discovery of an error, but, in addition to all the factors affecting the standard of care, there are now three fresh factors to which the lawyer must give thought and that arise from their knowledge of the fact that they have made an error: (a) the duty of loyal, including the

duty of candour, what must the lawyer tell the client to comply with that duty; (b) the Code of Conduct, what disclosure to the client does it require; and (c) the lawyers' indemnity fund policy, what disclosures does it forbid. [43] These factors do not simplify the determination of the standard of care. On the contrary, they make it more complex, and they certainly do not leave the determination of the standard of care as "of which an ordinary person may be expected to have knowledge." Again, the use of the words "standard of care" in this quote may be somewhat loose, but I find that the sentiment is correct to the extent that the Court requires some assistance in assessing these issues. iv. Ultimate Issue Rule [44] In Bryce, G.C. Weatherill J. stated at para. 18: [18] It is even more improper for an expert to usurp the function of the court in a negligence case by opining that a party has breached the duty of care. ... [45] In his conclusion on the second question, Mr. Ferris states as follows: Based on the assumptions provided, it is my opinion that Mr. Clemens did not comply with the standard of care expected of a commercial litigation lawyer in British Columbia between 2008 and 2014 when he failed and omitted to provide correct information to Hunter and Fasken with respect to the circumstances of the inclusion of the B Claims in the First Amended Notice of Civil Claim,

including but not limited to his previous knowledge of the ownership status of the B Claims, his failure to obtain instructions prior to amending the initial Notice of Civil Claim, and the circumstances under which he became aware of Boss/Blizzard's concern with the inclusion of the B Claims in the First Amended Notice of Civil Claim after the claim with the Province had been effectively settled. [46] I accept the defendants' critique on this point. The opinion is framed exactly as a final judgment would read, and that is not an expert's role. [47] The plaintiffs suggested that I could effectively take a blue pencil to the paragraph in an effort to ensure that it complied with the legal requirements while preserving the essence of the opinion. I decline to do so. [48] As a matter of trial fairness, there has already been sufficient movement in the content of Mr. Ferris's report. Prior to making any additional amendments, I would need to hear again from Mr. Ferris to ensure that any changes did not do violence to his views. This inquiry would inevitably open the door to further cross-examination and re-examination. In the interests of trial efficiency and fairness, I find that the more appropriate approach is to simply strike the paragraph. There is still assistance provided to the Court in the balance of the answer to question 2, so the plaintiffs will not be completely hamstrung by this order, in terms of having a basis to make final argument. The answer to question 2 will not be struck in its entirety. IV. CONCLUSION [49] In sum, then, I make the following orders: 1. The penultimate paragraph of Exhibit F shall be struck.

2. Exhibit F will be made the next numbered exhibit.

3. Tab D will be removed from Exhibit E and made the following numbered exhibit. "The Honourable Mr. Justice Branch"