Where surveillance evidence undermines the factual assumptions on which a plaintiff's medical expert opinions are based, the onus is on the plaintiff — not the defendant — to call those experts to address the surveillance evidence and demonstrate that their opinions would not change. A defendant is not required to call the plaintiff's experts for cross-examination to put the surveillance evidence to them. The inquiry under s 318(2)(a) as to whether material was 'reasonably available' when the pre-filing defence was served is essentially factual, and surveillance evidence obtained after the pre-filing process may satisfy the test where it provides more specific information about the plaintiff's condition than was available at the time of the pre-filing defence.
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