Leave of the Court Is Not Required for A Refusals Motion Despite Filing of the Trial Record

Leave of the Court Is Not Required for A Refusals Motion Despite Filing of the Trial Record

Justice J. R. Henderson held that leave of the court is not required to bring a refusals motion despite the moving party having set down the action for trial. Justice Henderson concluded that if leave was required, to deny leave would be to permit parties to withhold answers to questions “by hiding behind a procedural rule”.

Heathcote v RBC Life Insurance Company, 2024 ONSC 1539 (CanLII)

Salvatore Shaw, Partner and Jamie Davison, Student-At-Law

April 10, 2024

1. Case Summary

  • In a recent motion decision dated March 18, 2024, Justice J. R. Henderson concluded that leave of the court is not required in order to bring a motion for refusals despite the filing of the trial record by the moving party. The decision arises from a motion brought by the Plaintiff in Heathcote v RBC Life Insurance Company, where an order was sought to compel the Defendants to fulfill outstanding undertakings and answer questions refused at discovery.
  • The Defendants were examined in September, 2023, following which the Plaintiff set the action down for trial one month later. In January, 2024, several undertakings remained unfulfilled and the refusals maintained. As a result, the Plaintiff brought a motion to obtain answers to undertakings and refusals.
  • In response to the Plaintiff’s motion, the Defendants argued that the Plaintiff required leave to bring the motion, pursuant to Rule 48.04(1), which prohibits parties who have set an action down for trial to initiate or continue any motion or form of discovery without leave of the court.
  • Justice Henderson disagreed with the position of the Defendants and held that leave was not required for the Plaintiff to bring their motion.
  • With respect to the unfulfilled undertakings, Justice Henderson held that Rule 48.04(2)(a) explicitly states that parties are not relieved from complying with undertakings given by the party on an examination for discovery. Pursuant to this exception, leave of the court is not required to bring a motion with respect to unfulfilled undertakings following the filing of a trial record.
  • Justice Henderson further held that leave was also not required by the Plaintiff to bring the motion compelling answers to the refusals given at discovery.
  • Justice Henderson reviewed the applicable Rules of Civil Procedure in coming to his conclusion. First, Rule 31.07(1) states that a party or a person examined for discovery is considered to have failed to answer a question if they refuse to answer on the grounds of privilege or otherwise. Further, Rule 48.04(2)(b)(iii) states that setting an action down for trial does not relieve a party from any obligation imposed by failing to answer proper questions at discovery.
  • Justice Henderson interpreted the exception found under Rule 48.04(2)(b)(iii) to mean that that the party who has set the action down for trial “does not require leave to bring a motion to compel answers to proper questions that the opposing party has refused to answer at the examination for discovery”. Justice Henderson reasoned that this interpretation honoured the intention of the legislators, since the only way to give effect to the exceptions created under Rule 48.04(2), was to find that the requirement for leave does not apply. Justice Henderson held any other interpretation of Rule 48.04(2) would “render it meaningless”.
  • In the alternative, Justice Henderson concluded that if he was wrong in his determination above, leave should be granted in any event in the interests of justice:

[10] …The failure to fulfill undertakings given on an examination for discovery and the refusal to answer proper questions are closely related, often interconnected topics. It would not be in the interests of justice to allow a motion for undertakings to proceed and not allow a motion for refusals to proceed in the same action. That approach would simply encourage manipulative parties to refuse to answer any questions, rather than provide an undertaking.

[11] Moreover, if a party declines to answer a proper question, it would not be in the interests of justice, barring unusual circumstances, to permit that party to withhold the answer to the question by hiding behind a procedural rule.

2. Implications

  • An important implication of this decision is that parties no longer have to wait for motions dealing with improperly refused questions to be heard before setting an action down for trial. This will help move actions along quicker. With trial dates being set well into the future, parties can now place their matter on the trial list much earlier knowing that they can still bring a motion to compel answers to refusals despite having filed a trial record.

Salvatore Shaw

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