Judge Says Motion to Compel Answers to Undertakings Requires Leave After Case Set Down for Trial

Mr. Justice Paul Perell has released a decision that discusses the effect to be given to Rule 48.04 of the Rules of Civil Procedure and its prohibition against initiating or continuing any motion or form of discovery without leave of the court, once a case has been set down for trial.

In Van Ginkel v. East Asia,  the plaintiff moved to compel the defendant to answer “undertakings, refused questions and follow-up questions from the examination for discovery of the defendant’s representative”. Counsel for the plaintiff had already set the case down for trial under Rule 48.02. After the motion was served (and after the case had been set down), the defendant provided answers to its undertakings. Counsel for the plaintiff was dissatisfied with the answers and wished to examine the defendant’s representative further on them. (It is not entirely clear how much of the original motion to compel the defendant to answers undertakings, refused questions and follow-up questions was still in play by the time the motion was heard. Justice Perell’s reasons say that the undertakings had been answered by then. It appears that what was really in issue was some follow-up questions on the answers to undertakings. So, even though Justice Perell’s reasons purport to deal with the law regarding whether or not leave is required to move to compel compliance with undertakings after a case has been set down for trial, it is not clear to us that this was such a case.)

Justice Perell concluded that leave to bring the motion was required and that the test for granting leave had not been met. Accordingly, he dismissed the motion.

Counsel for the plaintiff took the position that he did not require leave to bring the motion, because of the exception in R. 48.04(2), to the general prohibition, contained in R. 48.04(1), against motions or discovery being initiated or continued after setting an action down for trial. The exception reads:

(2) Subrule (1) does not,

(a) relieve a party from complying with undertakings given by the party on an examination for discovery;

(b) relieve a party from any obligation imposed by,

(0.i) rule 29.1.03 (requirement for discovery plan) …

(iii) rule 31.07 (failure to answer on discovery), …

His Honour summarized the caselaw as follows:

Having reviewed that case law about these several rules, I extract the following principles:

  • Because of rule 48.04 (1), if a party sets an action for trial, he or she may not without leave bring a motion for: a further or better affidavit of documents; to challenge a claim for privilege; to compel answers to any questions refused at the examination for discovery; or for further discovery: White v. Winfair Management Ltd., [2005] O.J. No. 1542 (Master); Fraser v. Georgetown Terminal Warehouse, [2004] O.J. No. 2131 (Master); Gawronski v. All State Insurance Co., [1998] O.J. No. 4640 (Master); Machado v. Pratt & Whitney Canada Inc.1993 CanLII 5492 (ON S.C.), (1993), 16 O.R. (3d) 250 [1993] O.J. No. 2741 (Gen. Div.).
  • The authorities are not uniform as to whether a party can move without leave to compel further discovery or the production of documents if the unanswered question is an unanswered undertaking. The predominant line of authorities, however, requires that after the action is set down for trial, leave be obtained to compel answers to undertakings: Benedetto v. Giannoulias, [2009] O.J. No. 3218 (S.C.J.); Fraser v. Georgetown Terminal Warehouses Ltd., [2005] O.J. No. 573 (S.C.J.). There, however, is authority that indicates that leave is not required where a party is not honouring his or her undertakings:Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality), [1996] O.J. No. 4809 (Gen. Div.).
  • A party who has set an action down for trial is not precluded from taking interlocutory steps or from making motions to respond to a motion or interlocutory step taken by the opposing party: 1086471 Ont. Ltd. v. 2077060 Ont. Inc., [2008] O.J. No. 5175 (Master); Trotter v. Cattan (1997), 15 O.R. (2d) 800 (Master). Thus, for example, a party who sets an action down for trial but who is confronted with his or her opponent’s motion for a summary judgment may cross-examine the moving party’s deponents and compel answers to refused questions; see: 1086471 Ont. Ltd. v. 2077060 Ont. Inc., [2008] O.J. No. 5175 (Master).
  • If before setting an action down for trial, a party obtains an order compelling his or her adverse party to answer undertakings or any unanswered or refused questions from the examination for discovery, the party may set the action down for trial and he or she will not require leave to bring a motion to compel compliance with the court’s existing order requiring answers: CBL Investments Inc. v. Menkes Corp 1994 CanLII 7225 (ON S.C.), (1994) 17 O.R. (3d) 147 (Gen. Div.); Chiefs of Ontario v. Ontario, [2007] O.J. No. 2569 (Master); 1086471 Ont. Ltd. v. 2077060 Ont. Inc., [2008] O.J. No. 5175 (Master). In these circumstances, the motion is, in effect, a motion to enforce a court order and not a motion to initiate or continue discovery within the meaning of rule 48.04 (1).
  • Once a party has set an action down for trial, it is a matter of discretion in the particular circumstances of the case whether the court will grant leave to initiate or continue a motion or form of discovery. However, the setting down for trial is not a mere technicality and the test for granting leave to permit further discovery or other interlocutory proceedings, is that there must be a substantial or unexpected change in circumstances such that a refusal to grant leave would be manifestly unjust or the interlocutory step must be necessary in the interests of justice. Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740 (Gen. Div.) at para. 3; Machado v. Pratt & Whitney Canada Inc.1993 CanLII 5492 (ON S.C.), (1993), 16 O.R. (3d) 250 [1993] O.J. No. 2741 (Gen. Div.); White v. Winfair Management Ltd., [2005] O.J. No. 1542 (Master) at paras. 15-16; Benedetto v. Giannoulias, [2009] O.J. No. 3218 (S.C.J.).

From these cases, Justice Perell distilled the following principle:

In my opinion, the line of authorities that holds if an action is set down for trial leave must be obtained to compel answers to undertakings is preferable. I say this because for situations where the moving party does not receive answers to the undertakings, the Rules of Civil Procedure continues the obligation to honour the undertakings and provides sanctions for the failure to do so, and for situations where the moving party receives answers but wishes to ask follow up questions; the test for granting leave provides an appropriate means to measure whether justice requires that the questions be answered.

Applying the principle to this case, he said that when the plaintiff “set the action down for trial, he indicated [by implication, presumably] that he did not require the ‘raw accounting files, cheques, invoices, and other documents which are compiled in the financial statements’ and the subsequently arriving answer to the Defendant’s undertaking does not justify revisiting that decision.”

As we have mentioned above, it is our impression from the reasons, that what was actually in issue by the time the motion was heard, was whether or not the plaintiff was entitled to pose follow-up questions to the defendant in relation to the answers given to its undertakings, not whether he was entitled to enforce the original undertakings themselves (although that had been part of the original motion).

But if, on the facts, his comments were obiter, Justice Perell was clearly of the view that even if the defendant had not answered its undertakings, leave to bring a motion to compel compliance with the undertakings would have been required by R. 48.04, once the plaintiff had set the action down for trial (see paragraph 18 of the reasons). We have some difficulty with this proposition.

First of all, what Justice Perell describes as “the predominant line of authorities” supporting his conclusion does not appear to us to stand for that proposition at all. The two cases referred to by His Honour are Benedetto v. Giannoulias, [2009] O.J. No. 3218 (S.C.J.) and Fraser v. Georgetown Terminal Warehouses Ltd., [2005] O.J. No. 573 (S.C.J.).

In Benedetto, the defendants sought an order that the plaintiff in a personal injury action re-attend to be examined for discovery after the plaintiff had set the action down for trial, with the defendants’ consent. The reasons of Justice Howden state, “I was advised by counsel at the hearing of this motion that all undertakings have been fulfilled by the plaintiffs’ counsel.”  What was really at issue in that case was not the undertakings, but questions arising from the answers to the undertakings. Justice Howden did not express any opinion as to whether leave was required under R. 48.04, to compel compliance with undertakings, as opposed to conducting further discovery on answers already given.

The second case cited by Justice Perell, Fraser v. Georgetown Terminal Warehouses Ltd., was relied upon by Justice Howden in Benedetto and in particular, the following passage from the reasons of Reilly J., which was quoted by Justice Howden in Benedetto as an accurate re-statement of the law:

It was essentially conceded by the defendants, by the date of the return of this motion, that the plaintiff had essentially complied with her undertakings, albeit (maintain the defendants) not in a timely fashion. What the defendants now seek is to further discover the plaintiff with respect to these undertakings. Even if such requests had merit prior to the action being set down for trial, the defendants’ failure to request such relief in a more timely fashion disentitles them to such relief now that the action has been set down for trial. [Emphasis added]

Thus, neither of the two decisions cited by Justice Perell for the proposition that after an action is set down for trial, leave must be obtained to compel answers to undertakings, actually stands for that proposition. In both cases, all undertakings had been answered and what was sought was further discovery on those answers.

On the other hand, as Justice Perell points out, Rule 48.04(2) [quoted above] “continues the obligation to honour the undertakings and provides sanctions for the failure to do so”. Thus, this subrule preserves a party’s obligation to answer undertakings given on its examination for discovery, but, on Justice Perell’s reading of it, affords no right, on the part of the examining party, to enforce the examinee’s obligation, without leave of the court. That interpretation of R. 48.04 would mean, it seems to us, that there is no type of motion or discovery that is automatically excepted from the prohibition in subrule 48.04(1), notwithstanding the obligations that are continued by subrule 48.04(2) after the action has been set down. Such a result strikes us as an odd, but certainly defensible, if we look solely at the language of the rule.

But if we go one step further and look at the test that the courts apply to determine whether or not leave under R. 48.04(2) should be granted, it seems to us that this is a further indication that leave at least ought not to be required to enforce undertakings, even after the case has been set down for trial. The test, as stated by Justice Perell, is as follows:

[T]he setting down for trial is not a mere technicality and the test for granting leave to permit further discovery or other interlocutory proceedings, is that there must be a substantial or unexpected change in circumstances such that a refusal to grant leave would be manifestly unjust or the interlocutory step must be necessary in the interests of justice. [Emphasis added]

It strikes us that evidence of any change of circumstances, “substantial”, “unexpected”, or otherwise, should not be relevant to the question of whether an examining party is entitled to compel compliance with the undertakings given byan opposing party, after the action has been set down for trial. Either leave is not required for such a motion (that is our view) or the test for leave must be something different.

In jurisdictions where litigants face long delays before their action can be tried, it will be important for their lawyers to know whether they must first obtain answers to undertakings before setting the case down for trial. Justice Perell’s reasons suggest that this is the case, but it seems to us that the law is unclear and that the opposite conclusion is the preferable one.

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