The Plaintiff hardware store commenced an Action against the Defendant condominium corporation for unpaid invoices related to the supply of materials for a condominium project. The Plaintiff’s employee deposed in an Affidavit in support of a Summary Judgment Application that the purchases were authorized which prompted the Defendants to review their file materials. The review revealed documents which contradicted the Plaintiff’s employee’s evidence and the Defendants sought to use them at the Plaintiff employee’s Questioning without showing the documents to the Affiant beforehand.

Master Schlosser considered whether the Plaintiff’s employee was entitled to see the documents in advance. The Defendants acknowledged that they were under a continuing obligation to disclose documents pursuant to Rule 5.10. Master Schlosser considered the elements of Rule 5.10, noting that the Defendants had given notice that there were additional documents as required by Rule 5.10(a). However, neither the Rule nor the principles drawn from prior case law overruled section 22 of the Alberta Evidence Act, RSA 2000, c A-18, which requires production before Questioning.

Master Schlosser held that the Defendant’s documents could not have been discovered with reasonable diligence earlier in the Action; and, as the effect of disclosing the records for the first time at the questioning would be lost “on paper”, that was not a reason to deprive the Defendants of the advantage that might be gained from putting the substance of the records before the witness in the Questioning on Affidavit.