The defendant brought a motion for leave to file a late responding affidavit to the plaintiff's summary judgment motion, after the deadline in a peremptory timetable order had passed.
The defendant also sought to cross-examine the plaintiff's affiants, which the plaintiff opposed on the basis that the defendant had not filed an affidavit.
The court granted the motion, finding that the interests of justice favoured allowing the late affidavit to ensure the case was decided on its merits.
The court also held that under Rule 39.02(1), a party is not required to serve an affidavit as a condition precedent to cross-examining an adverse party's affiant.