The defendants sought leave under Rule 39.02 of the Rules of Civil Procedure to file an expert affidavit after conducting cross-examinations in relation to a pending summary judgment motion.
The plaintiff opposed the request, arguing the expert report was inadmissible, failed to meet the Rule 39.02 test, and did not comply with Rule 39.01(7).
The court applied the flexible, contextual approach articulated in First Capital Realty Inc. v. Centrecorp Management Services Ltd. and found the proposed evidence relevant, responsive to matters raised during cross-examination, and supported by a reasonable explanation for the delay.
The court also concluded the plaintiff would suffer no non‑compensable prejudice because the summary judgment hearing had not yet been scheduled and the plaintiff could respond and cross‑examine the expert.
Leave was therefore granted to file the affidavit and expert report, subject to confidentiality and further scheduling directions.
