It’s important to comply with your production and discovery obligations when making decisions to exclude certain documents during the discovery process. Otherwise, your client may find themselves in a predicament before trial where leave from the court is required to rely on a document. Further, if the court allows your client to rely on a late produced document, the court may impose cost consequences. As discussed in the decision of Premform Limited v Heights Rental Construction, the court’s decision to grant leave is discretionary and the onus is on the party seeking the indulgence to show: (i) a reasonable explanation for the failure to comply with the relevant discovery rules and (ii) that granting leave will not cause prejudice to the opposing party.
In Premform, the admissibility of the document at issue was a bid estimate. The plaintiff, Premform had deliberately decided not to produce the bid estimate in its affidavit of documents. Premform had also refused to produce the document in response to a question at the examinations for discovery. Following the examinations for discovery, Premform produced an expert report that relied on the bid estimate. The opposing party objected to the use of the bid estimate without leave of the court. Thereafter, Premform’s counsel wrote to opposing counsel to advise that because the bid estimate had been produced, the prior refusal was no longer in place. Premform then also served a supplementary affidavit of documents which listed the bid estimate.
Premform therefore brought a motion for directions on the late production and admissibility of the bid estimate, and if necessary, sought leave to rely on the document at trial. The two issues on the motion were (i) whether Premform required leave, and (ii) if so, whether leave should be granted.