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Further discovery ordered after late production of key instrument during examination.
The plaintiffs brought a motion arising from a dental malpractice action seeking a further and better affidavit of documents and leave to conduct a focused continuation of the defendant’s examination for discovery after a specific dental instrument was produced for the first time during discovery.
The court considered the interaction between the 2010 amendments to the Rules of Civil Procedure, including discovery plans under Rule 29.1 and proportionality in discovery under Rule 29.2, and the traditional jurisprudence governing undertakings and follow‑up discovery.
The court held that an examination for discovery is not complete until proper follow‑up questions arising from undertakings or newly produced evidence can be asked.
The defendant was granted leave to amend the defence, and the plaintiffs were permitted a limited further discovery focused on the instrument.
Partial indemnity costs were awarded to the plaintiffs.
