Timely motions for refusals: Jetport Inc. v. Global Aerospace Underwriting Managers
As a general rule of thumb, a party should not set down or consent to the setting down of an action or agree that an action can be placed on the trial list unless the party is ready to proceed, as this would remove the right to bring certain motions or to obtain further discovery absent leave of the court. The rationale here is that by doing otherwise, the party is signifying to the court that it is ready to proceed to trial. Despite the wording of Rule 48.04 however, some confusion has remained as to which types of motions “survived” the taking of such steps.
In Jetport Inc. v. Global Aerospace Underwriting Managers, 2013 ONSC 2740, released May 23, 2013, Master Graham clarified the law on whether a party that has set an action down for trial would require leave to bring or continue a motion to compel answers to refusals and, if so, the basis on which the court should grant leave.
This case concerned property damage arising from an airplane crash on November 11, 2007. The plaintiff, Jetport Inc., owned the aircraft. The defendant, Global Aerospace Underwriting Managers, was the manager of the pool of aviation insurers, and it denied the plaintiff’s insurance claim on the basis that the pilot did not meet the flying experience requirements dictated in the insurance policy. The plaintiffs also commenced a subsequent claim as against the insurance broker, Jones Brown. The parties brought a total of six refusal motions, all of which were adjourned, including one brought by the plaintiff. The plaintiff then served its trial record in one of the actions without having the refusals adjudicated.
Subsequently, the plaintiff brought a motion seeking an order that it did not require leave of the court to continue its refusals motion, and to conduct a further discovery. In the alternative, the plaintiff sought an order seeking leave of the court to take these steps.
Under Rule 48.04(1), any party that sets the action down for trial or consents to the action being placed on a trial list shall seek leave of the court to initiate or continue with any motion or form of discovery. Subsection (2)(b) states that subsection (1) does not relieve a party from its obligations imposed through various enumerated Rules. In effect, this provision provided a list of exceptions to subsection (1). Rule 48.04(3) states that leave of the court is not required to bring a motion to compel compliance with the obligations in Rule 48.04(2)(b).
The Parties’ Positions on the Motion
The plaintiff and defendant relied on different case law, given the conflicting jurisprudence on the matter. The plaintiff argued that Rule 31.07, which deals with a party’s failure to answer questions at discovery, was one of the exceptions listed under Rule 48.04(2)(b), and that leave of the court was therefore not required.
Faced with conflicting case law of equal authority, Master Graham analyzed the applicable Rules in order to decide which line of authority to follow.
Analyzing Rule 48.04(2)(b), Master Graham found that Rules 31.07 and 34.15, absent a court order, did not confer an obligation to answer questions refused, but simply imposed consequences for failing to answer a question, and the option for an order to compel answers to the question, respectively. Therefore, a motion to compel answers to refusals does not fall within the exceptions identified in Rules 48.04(2)(b) and 48.04(3), and the plaintiff was required to seek leave of the court. Master Graham further held that the inclusion of Rule 31.07 under Rule 48.04(2)(b) was to give a party a right to move without leave to enforce the obligation to honour undertakings. Therefore, a party that sets an action down for trial does not require leave to move to compel answers to undertakings once the action has been set down for trial, or consent has been provided to have the action placed on the trial list. Master Graham took a principled basis in differentiating between undertakings and refusals in the context of Rule 48.04, as undertakings were obligations that pre-dated the setting down of the action, whereas refusals were not.
After finding that the plaintiff was required to seek leave of the court, Master Graham shifted his analysis to the jurisprudence discussing the test for granting leave. He concluded that the test was one requiring proof of “a substantial or unexpected change in circumstances to the extent that to refuse the order would be manifestly unjust”. Master Graham found no such evidence in this case before him. He held that the plaintiff’s attempt to reduce the delay in obtaining a trial date did not constitute a substantial or unexpected change in circumstances. Therefore, the plaintiff’s motion for leave was dismissed.
Master Graham’s decision in Jetport reviews the conflicting caselaw under Rule 48.04, it analyzes the policy rationale behind the Rule, and it provides a clear decision as to which line of authority to follow. The ratio in Jetport was approved and followed by Firestone J. in Hamilton v. Ontario (Minister of Transportation), 2013 ONSC 4536, released July 15, 2013.
Failing the release of a contrary decision from a higher court, Jetport now makes it clear that counsel should not set an action down for trial, consent to same, or consent to an action being placed on a trial list until a motion for all necessary refusals (and any questions taken under advisement which have become refusals) has been adjudicated. In order to prevent unnecessary delays in the scheduling of trial, parties should confirm their positions on questions refused or taken under advisement as soon as possible after discoveries, as this will give the opposing party ample time to bring a motion for refusals and conduct further discovery, if necessary.
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