Executive Summary: Key Legal and Evidentiary Issues

• The court dealt with Jamieson’s late application to add a new regulatory witness and Health Canada documents in a certified class proceeding already well into the Phase 1 common issues trial.

• The court applied Supreme Court Civil Rules 12-1.1 and 12-5 and the Fu v. Zhu factors, considering prejudice, explanation for late notice, impact on determination of issues on the merits, and the overall interests of justice.

• The judge did not accept Jamieson’s explanation that it only realized during trial that Health Canada’s records were important, given Jamieson’s long-standing reliance on Health Canada’s approvals as part of its position on the common issues.

• The newly obtained Health Canada documents, which appear to confirm that the Cargill flowchart was in Health Canada’s file, were found potentially relevant to issues such as what Health Canada knew and to the fraudulent concealment common issue.

• Any prejudice to the plaintiffs was reduced because the documents were admitted only to show that they were in Health Canada’s files, not for the truth of their contents, and the plaintiffs retained the ability to challenge their weight and the adequacy of Health Canada’s review.

• Balancing all factors, the court allowed Jamieson to amend its trial brief to add regulatory employee Mitchell Kiernan as a witness and to introduce his affidavit and the attached Health Canada documents for this limited purpose.

Factual and procedural background

This ruling arises in a certified class proceeding in the Supreme Court of British Columbia, Krishnan v. Jamieson Laboratories Ltd., concerning glucosamine sulfate products and involving multiple manufacturer and retailer defendants. It is an interlocutory decision on an application to admit additional evidence during the Phase 1 common issues trial.

The Phase 1 trial was described as (hopefully) in its closing stages. Counsel originally estimated 14 days for the trial, but it had reached 24 days. Additional time had been reserved: two dates in January 2026 to address evidentiary issues, a five-day block from February 9–13, 2026 for completion of evidence, and a further five-day block from May 11–15, 2026 for oral argument.

Jamieson brought an application to introduce additional evidence not disclosed before trial. The application originally sought: (1) leave to amend its trial brief to add Artur Baku as a witness and permit him to testify by video conference; (2) in the alternative, an order that no adverse inference could be drawn from Jamieson’s failure to call Baku; and (3) leave to amend its trial brief to add regulatory employee Mitchell Kiernan, with his evidence-in-chief to be given by affidavit and with availability for cross-examination by video conference.

The issues relating to Baku were resolved by consent. Jamieson confirmed it would not argue that Baku’s 2016 emails were not Jamieson documents, and the plaintiffs confirmed that they would not seek an adverse inference from Jamieson’s decision not to call Baku. The remaining issue was the proposed new evidence from Kiernan.

New regulatory witness and Health Canada master file request

Mitchell Kiernan works in Jamieson’s regulatory affairs group and has delegated authority to communicate with Health Canada on Jamieson’s behalf. No party listed him as a witness before trial.

During Jamieson’s opening submissions on May 14, 2025, the court asked whether any of Jamieson’s glucosamine sulfate products were licensed outside Health Canada’s monograph “fast track” process and what documents were provided to Health Canada in support of those applications. Jamieson’s counsel indicated that files for the products had been produced and that a significant proportion of the applications were regular applications, not fast-track monograph applications. For those regular applications, Jamieson’s counsel said the company would have been required to provide clinical studies supporting the safety and efficacy of the products. Counsel also indicated that more than half of the glucosamine sulfate products were not applied for under the fast track licence application.

The court then asked whether those regular applications involved “big files of safety and efficacy data,” and Jamieson’s counsel referred to forthcoming evidence from John Doherty.

There were already documents in the record indicating that some Jamieson products using glucosamine sulfate supplied by Cargill Acidulants were licensed outside Health Canada’s fast-track monograph process. In those instances, Jamieson appeared to have relied on Cargill’s confidential master file maintained by Health Canada (the “Master File”).

A specific question that arose at trial was whether Health Canada had received a Cargill flowchart (the “Flowchart”) that Jamieson argued showed the Cargill product was a physical mixture of two separate materials. This could not be answered with certainty at that time because Health Canada’s own files had not been produced in the litigation.

There was also a discussion on May 14, 2025 between the court, Jamieson, and the plaintiffs about the extent of document production concerning communications with Health Canada. Jamieson’s counsel stated that correspondence with Health Canada had been produced and referred to “red files” containing such correspondence, while noting that some older records were no longer available.

On May 15, 2025, during the trial, Kiernan made a direct request to Health Canada for “all documents in the possession of Health Canada contained within the Master File for Cargill Regenasure Glucosamine Sulfate.” Later, during John Doherty’s examination on September 25, 2025, he confirmed that Jamieson had requested the Master File from Health Canada but had not yet received it.

Evidence about the flowchart and objections at trial

In Doherty’s examination-in-chief, Jamieson’s counsel questioned him about an authorization letter from Cargill that allowed Jamieson to reference Cargill’s Master File and its contents in support of safety and efficacy. Doherty identified Regenasure glucosamine sulfate as a specific Cargill brand derived from aspergillus niger fed corn and confirmed that this was the same raw material subject to a product supply agreement previously discussed. He testified that Jamieson had used Cargill’s raw glucosamine sulfate in other glucosamine sulfate products at issue in the litigation and that Jamieson had relied on the Cargill authorization letter in support of safety and efficacy for those other products.

Doherty further stated that Cargill had not provided Jamieson with a copy of the Master File and that Jamieson had tried to obtain information from Cargill without success. He also said that Jamieson had filed an access to information request with Health Canada to obtain information from Health Canada but that this had not yet been completed.

Jamieson’s counsel then introduced a technical data sheet for Regenasure glucosamine (Exhibit 41) and asked Doherty to describe what was shown on the second page, which included a flowchart. Plaintiffs’ counsel objected to this line of questioning, characterizing it as seeking an opinion about a chemical process and arguing that Doherty could identify the existence of the document but that the process appeared to be a patented process with proprietary chemistry held in a special protected file at Health Canada.

On November 4, 2025, Health Canada responded to Kiernan’s May 15, 2025 request. Jamieson received records from Health Canada and produced them to the plaintiffs later that day. These records appeared to confirm that the Flowchart had been provided to Health Canada. Kiernan’s proposed affidavit, to be used as his evidence-in-chief if the application were granted, attached the correspondence with Health Canada and the responsive documents (the “Documents”).

Legal principles governing late witnesses and documents

The court noted that, under Supreme Court Civil Rules 12-1.1(2) and 12-5(28), a party may not call a witness at trial if that witness is not listed in the trial brief, unless the court orders otherwise. Rule 12-1.1(6) requires a party who later learns that its witness list is inaccurate or incomplete to promptly file and serve an amended witness list.

The purpose of these provisions, as described in Fu v. Zhu, is to prevent trial by ambush and to ensure full disclosure of documents and witnesses to allow parties to prepare and to support efficient and fair trials.

The court adopted the approach from Fu v. Zhu, which sets out factors for exercising discretion to allow a party to call a witness not previously disclosed in accordance with the Rules:
(a) whether there will be prejudice to the opposing party due to lack of notice;
(b) whether there is a reasonable explanation for the failure to give notice, including whether the witness and information are new or had been known and withheld as a strategic decision;
(c) whether precluding the witness would prevent determination of an issue on the merits; and
(d) whether the witness should be permitted to be called in the interests of justice.

The judge emphasized that these are “factors” to be considered globally and that the broad “interests of justice” factor is part of that overall assessment.

The plaintiffs argued that a stricter test applied to the admission of new documents, relying on language in Houston v. Kine that referred to a “reasonable excuse” for late delivery. The judge, however, found no material difference between the discretion to admit new witnesses and the discretion to admit new documents when Houston is read in context with other authorities such as Diaz v. Nowack and Tran v. Kim Le Holdings Ltd.

Application of the Fu factors and related authorities

On the explanation factor, Jamieson argued that it was only during trial that it came to appreciate the importance of understanding what was in Health Canada’s records, based on questions from the court and class counsel’s comments about disclosure.

The judge did not accept this as a reasonable explanation. Jamieson had, for several years, expressed its intention to rely on Health Canada’s approval of its products to support its position on many certified common issues, including those at stake in the Phase 1 trial. In that context, it should have been clear earlier that the information Health Canada possessed when granting approvals would be relevant.

However, the judge stated that the absence of a reasonable explanation was not, by itself, determinative. Other Fu factors still had to be considered, and the judge cited authority recognizing that lack of a reasonable explanation does not automatically bar admission of late evidence.

On whether precluding Kiernan’s evidence would prevent determination of an issue on the merits, the judge found this factor weighed in favour of admission. The Documents showed that the Flowchart was in Health Canada’s files. Jamieson might therefore be able to argue that Health Canada was made aware of Cargill’s formulation and still approved Jamieson’s products.

The judge acknowledged that it was not entirely clear how this argument fit within the certified common issues but expressed reluctance to risk leaving the issue “under briefed.” The presence of the Flowchart in Health Canada’s file was identified as potentially relevant to the fraudulent concealment common issue, including what Health Canada knew and when. The judge noted that it would be difficult to adjudicate on the sufficiency of Health Canada’s information without a reasonably complete record of what the regulator had been given.

Plaintiffs’ counsel indicated they were prepared to amend Common Issue #44, which references Health Canada, to remove that reference. The judge, however, expressed concern about adjusting the common issues at such a late stage.

Prejudice, scope of admissibility, and remaining arguments

On prejudice, the judge found that prejudice to the plaintiffs from admission of the new evidence was limited. The relevance of the Documents was described as “muted,” in part because Jamieson confirmed that it would not argue that the words in the Documents were true, but only that the Documents existed in Health Canada’s files. This limitation reduced the additional evidentiary burden on the plaintiffs and their concern that Jamieson was trying to “back door” expert opinion through the regulatory file.

The court recognized that the Documents did not interfere with the plaintiffs’ primary position that the products were physical mixtures. Instead, the plaintiffs’ need to investigate what Health Canada knew and when it knew it was more directed at responding to any argument by Jamieson that Health Canada’s knowledge might protect Jamieson from liability.

The judge observed that the weight to be given to the Documents would remain a live issue for final argument. The plaintiffs would still be able to argue, for example, that there was no evidence a qualified Health Canada chemist reviewed the Documents to determine whether the products were physical mixtures, or that Health Canada lacked sufficient evidence to determine whether the products were physical mixtures.

The court also noted that there was existing expert evidence in the record, including evidence from the plaintiffs’ expert Dr. Velasquez, that could assist in evaluating the sufficiency of the Health Canada disclosures.

Even if the Documents were not admitted, the judge pointed out that the plaintiffs would be precluded from asserting facts they now knew to be untrue, specifically that Health Canada did not have the Flowchart and that there was no evidence in Health Canada’s files regarding whether the products were physical mixtures. Plaintiffs’ counsel confirmed on the record that they would not make such submissions even if the Documents were excluded.

Interests of justice, delay, and authenticity

Under the “interests of justice” factor, the judge acknowledged concern about potential trial delay in a case that was already about six and a half years old. There was a risk that admitting the Documents might require rebuttal evidence. Jamieson indicated that it was amenable to the admission of rebuttal evidence to ensure that the court received a full understanding of the Documents.

The judge also noted that the plaintiffs were in a position to seek their own court orders or access-to-information responses from Health Canada or Cargill. It appeared that the plaintiffs had made an access to information request to Health Canada, but it was not clear why the Documents now produced to Jamieson were not included in Health Canada’s response. The plaintiffs had not further pursued production issues with Health Canada.

On authenticity, the plaintiffs raised a concern that Kiernan was not the author or custodian of the Documents. The court referred to Éthier v. Canada (RCMP Commissioner), where the Federal Court of Appeal held that documents produced by a government agency in response to an access to information request were inherently reliable. The judge concluded that the Documents were at least what they appeared to be and that they met thresholds of reliability and necessity for basic admissibility, given the limited purpose for which Jamieson proposed to use them (to show that they were in Health Canada’s files). The judge noted that many other documents in the trial had been admitted on a similar basis, through witnesses without direct personal control over the documents, to establish their existence in particular repositories such as the internet.

The judge acknowledged the plaintiffs’ concerns about Jamieson’s litigation conduct, including the timing of Jamieson’s acceptance that its products were physical mixtures and the plaintiffs’ view that Jamieson had not been sufficiently forthcoming in discovery. The judge stated that these issues were more properly addressed in the context of costs, and the plaintiffs had already signalled their intention to seek a costs award based on that conduct.

Ruling and limited outcome

In the end, the judge found that authenticity and hearsay concerns were addressed, particularly in light of the limited use to be made of the Documents, and that the Fu factors relating to determination of issues on the merits and the interests of justice weighed more heavily in favour of admission than the prejudice and explanation factors weighed against it.

The court therefore granted paragraph 3 of Jamieson’s application. Jamieson was permitted to amend its trial brief to add Kiernan as a witness, with his evidence-in-chief to be given by affidavit and with availability for cross-examination by video conference. The attached Health Canada Documents were admitted to show that they were in Health Canada’s files, with their ultimate weight to be determined at the conclusion of the case. There is no amount of money ordered or granted in favour of any party.