In a wrongful dismissal action, the moving party sought leave mid-trial to introduce a performance-rating grid that had not been disclosed in its affidavit of documents.
The court held that under Rule 53.08, leave was mandatory unless the late disclosure caused prejudice that could not be cured by costs or an adjournment, and found the prejudice here was not "baked in".
Leave was granted on terms including a mid-trial adjournment, a limited further examination for discovery, and broad latitude for re-examination.
Although the moving party succeeded on the motion, the responding party was awarded partial indemnity costs because the relief obtained was an indulgence made necessary by the moving party's disclosure default.
