J. Koenig

The plaintiffs brought a motion during trial under Rule 53.08 of the Rules of Civil Procedure for leave to introduce previously undisclosed documents to impeach a defence witness.

The trial had been adjourned for several months due to illness, meaning the defendants had the documents since January 2022 and cross-examination had not yet commenced.

The court granted the motion, finding that while the explanation for late disclosure was weak, the lengthy adjournment cured any prejudice or ambush, and the documents could be used solely for impeachment purposes.

During a civil trial, the plaintiffs sought to cross-examine a defence witness on unproven fraud charges to impeach his credibility, after the witness denied having a criminal record in chief.

The court denied the request, holding that under the bad character exclusionary rule, unproven allegations against a non-party witness have high prejudicial effect and extremely low probative value.