[79] Although both rules expose the non-compliant party to the risk of evidence being excluded at trial, rule 53.08 mitigates that risk somewhat. Rule 53.08 applies to rule 38.08(1) and rule 31.09(3), and provides that “leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.”[80] In Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham, (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A.), at para. 81, this court held that under rule 53.08: “a trial judge must grant leave unless to do so would cause prejudice that could not be overcome by an adjournment or costs.” This mandatory orientation is understandable, since relevant evidence, including surveillance, is ordinarily admissible. (Landolfi, at para. 52)

via CanLII – 2015 ONCA 110 (CanLII).

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