The plaintiff moved under Rule 39.02(2) for leave to file affidavits with additional documents after cross-examinations in support of a summary judgment motion to enforce a foreign restitution order.
Applying the Divisional Court framework for late evidence, the court held that although the proposed documents were relevant, the plaintiff failed to provide an adequate explanation for not filing them earlier and had made a strategic choice to confront the defendant with the documents on cross-examination instead of proving them by affidavit.
The court further held that admissibility cannot be ignored in the Rule 39.02(2) analysis, even if the ultimate ruling is left to the motion judge.
Leave was refused, and the court indicated the proposed evidence would have been inadmissible hearsay in any event.
No costs were awarded.
