BARRIE COURT FILE NO.: 11-575

DATE: 20120215

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GINA FORTINI, STELLA IANNUCCILLI FORTINI, LUIGI FORTINI, VITTORIA FORTINI DOE, and ANTHONY FORTINI, MARINA FORTINI, RAFAEL FORTINI, SARA FORTINI, minors by their Litigation Guardian, Gina Fortini, Plaintiffs

AND:

THE COUNTY OF SIMCOE and THE CORPORATION OF THE TOWNSHIP OF ADJALA-TOSORONTIO, Defendants

BEFORE: HEALEY, J.

COUNSEL:
D. Romaine, Counsel, for the Plaintiffs

F. Csathy, Counsel, for the Defendants

HEARD: December 23, 2011

ENDORSEMENT

NATURE OF THE MOTION

Nature of the Motion

1This is a motion by the County of Simcoe for leave to appeal the Order of Mullins J.. The Order requires that the appellant produce a second deponent for examination for discovery after the examination of the initial deponent had been completed, and while the appellant was still in the process of fulfilling the undertakings given at that examination.

2The County moves pursuant to Rule 62.02(4) (b) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, arguing that there is good reason to doubt the correctness of the decision and that the matter is of such importance that appellate review is warranted.

3The plaintiffs’ claims arise from a single vehicle accident in which the driver, Mr. Filippo Fortini, was fatally injured on January 3, 2007. It is alleged that he lost control of his vehicle on County Road 13 in the County of Simcoe due to the presence of ice on the roadway. The plaintiffs allege that the County is liable for having failed to treat the ice. In a related action, the passenger in Mr. Fortini’s vehicle has named the County as a third party (the “passenger action”). An order has been made that these two actions are to be tried together.

4Mullin J.’s reasons for granting the order were as follows, at paras. 12-14 of her endorsement:

12Given the circumstances of this case and the companion action of the passenger, the road conditions and the municipality's knowledge of the road conditions is central to the liability issues. Given the death of Mr. Fortini, the only parties having firsthand knowledge of the road conditions on the road in question at the time in question are those adverse in interest, namely the municipality and the passenger bringing the companion action.

13A welter of undertakings, answers to undertakings and questions arising from answers to undertakings, will, in these circumstances be an inadequate means to fulfil the entitlements of the plaintiff to discovery. The most expeditious and least expensive disposition of these claims, on their merits, will only be frustrated should Mr. Mitchell not be directly examined, as to his observations and under what circumstances and in what manner, ought his record of that shift be understood.

14I place an interpretation on these circumstances, similar to that of Justice Ferguson in the circumstances before her. It shall hereby be ordered that Mr. Mitchell be produced for an examination for discovery.

THE LAW

The Law

5Rule 31.03 of the Rules details the process by which a party may examine more than one person. It provides:

31.03 (1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (2) to (8). R.R.O. 1990, Reg. 194, r. 31.03 (1) ; O. Reg. 438/08, s. 28 (1).

On Behalf of Corporation

(2) Where a corporation may be examined for discovery,

(a) the examining party may examine any officer, director or employee on behalf of the corporation, but the court on motion of the corporation before the examination may order the examining party to examine another officer, director or employee; and

(b) the examining party may examine more than one officer, director or employee only with the consent of the parties or the leave of the court. O. Reg. 132/04, s. 7.

On Behalf of Partnership or Sole Proprietorship

(3) Where an action is brought by or against a partnership or a sole proprietorship using the firm name,

(a) each person who was, or is alleged to have been, a partner or the sole proprietor, as the case may be, at a material time, may be examined on behalf of the partnership or sole proprietorship; and

(b) the examining party may examine one or more employees of the partnership or sole proprietorship only with the consent of the parties or the leave of the court. O. Reg. 132/04, s. 7.

Requirements for Leave

(4) Before making an order under clause (2) (b) or (3) (b), the court shall satisfy itself that,

(a) satisfactory answers respecting all of the issues raised cannot be obtained from only one person without undue expense and inconvenience; and

(b) examination of more than one person would likely expedite the conduct of the action. O. Reg. 438/08, s. 28(2).

6Prior to an amendment to Rule 31.03 made on December 10, 2008, subrule 31.03(4) did not exist; it came into force on January 1, 2010, pursuant to O.Reg 438/08. The amendment had the effect of setting out those criteria to which the parties and the court must direct their minds before leave can be granted to examine more than one person.

7There are two reported cases that provide guidance on interpreting the specific requirements for leave now contained Rule 31.03(4). The first is Waxman v. Waxman , 2011 ONSC 4707 [ Waxman ]. In Waxman the plaintiff sought to examine a former employee, Ms. Patey, as a second examination of the defendant corporation pursuant to Rule 31.03(2)(b). Ms. Patey had previously been employed by the defendant, Waxman Industrial Services Corp. (“WIS”), and her handwriting appeared on certain bills of lading that were central to the allegations of a fraudulent scheme to divert assets and cash from the plaintiff to WIS. The defendants resisted the motion, initially pursued under Rule 31.10(1) and then under Rule 31.03(2)(b) at the invitation of the motion’s judge, on the basis that Ms. Patey had been fully cooperative in providing information in response to undertakings that were made on the examination of the individual defendant Aaron Waxman on his own behalf and as a representative of WIS. Undertakings had been fully answered based on her responses, and the defendants argued that if the plaintiffs had any further proper follow-up questions for Ms. Patey, further inquiries would be made of her and the answers provided. Newbould J. granted the motion after indicating that both branches of the test in subrule 31.03 (4) had been met. However, there is no explanation by the court as to why it found that satisfactory answers had not or could not be obtained from Mr. Waxman. However, Newbould, J. commented on the new rule at paragraph 41 as follows:

The plaintiffs say that the new rule has broadened the rights to examine a second employee of a corporation. They referred to Professor Gary D. Watson in "Annual Survey of Recent Developments in Civil Procedure", Ontario Civil Practice 2010, Carswell: Toronto (2009) in which it is stated:

An accompanying amendment, to rule 21.03, broadens the circumstances were a party may seek multiple examinations of a party. This is accomplished by including a test for permitting more than one examination where the court is satisfied that satisfactory answers respecting all issues raised cannot be obtained through one person and that additional examinations would expedite the progress of the proceeding.

In my view, the new rule must be given some meaning. It now provides the test to be used in deciding whether a second representative should be examined. I do not accept the argument that it has only added restrictions to the previous tests established by case law. There is no indication in the rules that such is the intent. Whereas before the amendment, there was no test prescribed by the rule, unlike rule 31.10, there is now a test set out in the rule. The test is different than the test for rule 31.10.

Aaron Waxman and Ms. Patey rely on a decision of Master Muir in Infinium Capital Corp. v. AB Software Corp. 2010 ONSC 812 made after subrule 31.03 (4) came into force. The master referred to previous cases and held that such orders are rarely granted, that special circumstances are required and the test is a very strict one. The master also referred to a recent case of Mullen v. Canada Life Assurance Co. 2009 CarswellOnt 5660 , but that case did not deal with the new subrule 31.03 (4). In my view, such statements regarding the new rule are not helpful and they ignore the language of the rule. I do not except that the previous case law prescribes the tests in the new rule. It is the new rule that must be interpreted. I accepted the view of Professor Watson that the new rule has broadened the circumstances in which a second representative may be ordered to be examined.

8As referred to in Waxman , the decision of Infinium Capital Corp. v. AB Software Corp., 2010 ONSC 812 [ Infinium ] also considered a motion for an examination of a second representative of the plaintiff, which was denied on the basis that the defendants had obtained satisfactory answers to their questions. In considering the legal test to be applied, Master Muir wrote at paragraph 8:

I have considered and applied the factors set out in rule 31.03 as amended and as interpreted by this court. The test and principles to be applied on motions such as this are fully set out in the decision of Master Egan in ING Wellington Insurance Co. v. Alexander Forbes Risk Services UK Ltd. [2003] O.J. No. 1012 (S.C.J.-Master) . Such orders are rarely granted. Special circumstances are required and the test is a very strict one. See Mullen v. Canada Life Assurance Co., 2009 CarswellOnt 5660 (S.C.J.) at paragraphs 21 and 22 .

9With the greatest of respect to Newbould J., I agree with the comment of Master Muir in Infinium that the amended subrule should be considered within the context of the previously existing case law. An examination of those cases pre-dating the amendment, which refer to the principles to be applied in considering an examination of a second individual, is necessary to explain how I have reached that conclusion .

10The leading case involving an examination of Rule 31.03(1) is ING Wellington Insurance Co. v. Alexander Forbes Risk Services UK Ltd. , [2003] O.J. No. 1012 (S.C.) [ ING ] . At para. 13 of ING , Master Eagan reviews the body of case law relating to the opportunity for a second examination, which collectively set out the following criteria as the principles to be applied on motions for leave:

1. The moving party must demonstrate that it cannot otherwise obtain the discovery to which it is entitled, which is only where the representative cannot or will not satisfactorily inform himself: Baylis Estate v. Attorney-General of Canada (2000) 49 C.P.C. (4 th ) 179 (S.C.) , leave to appeal dismissed at [2000] O.J. No. 4931 (Div.Ct.) [ Baylis Estate ] ;

2. To show that an examination for discovery has been unsatisfactory so as to entitle a party to a further examination, it is necessary to demonstrate that questions asked have not been answered, or that answers given are incomplete, unresponsive or ambiguous, or the follow-up questions have similarly not been answered in a clear, complete and responsive way: Westcoast Transmission Co. Ltd. v. Interprovincial Steel and Pipe Corporation Ltd. (1984), 49 C.P.C. 101 (B.C.S.C.) [ Westcoast Transmission ] ;

3. The fact that the person whom the moving party seeks to examine may be an important witness at trial is not sufficient grounds for ordering an additional examination: Baylis Estate ;

4. The test for whether an examination for discovery has been satisfactory is not a subjective test depending on the view of the examiner. The question is whether there has been a full inquiry into all matters which may be relevant to the issues raised on the pleadings: Westcoast Transmission ;

5. A second examination should not be ordered in the absence of "special circumstances", and the test for being permitted an examination of a second representative is a very strict one: Scintilore Explorations Ltd. v. Larche , [1995] O.J. No. 719 (Gen. Div.) [ Scintilore ] .

11In her endorsement Mullins J. refers to ING and specifically refers to all of the above principles, with the exception of the fact that the test for whether the discovery has been satisfactory is not a subjective one as perceived by the examiner.

12The concept of special circumstances is not clearly defined in the cases referred to above, but appears to be linked to the main concept of the initial deponent being uninformative as to the issues raised by the pleadings. In ING Master Egan denied the motion for leave on the basis that there was insufficient evidence for him to find that the first representative examined was unable to inform herself on the matters in issue, and therefore the moving party had “not discharged its burden of proving the ‘special circumstances’ required to justify the examination of an additional representative” (at para. 21). Similarly, in Scintilore , after stating that special circumstances must be shown, Campbell J. indicated that it is not enough that the evidence be important to the moving parties; they must demonstrate that a refusal of the second examination would deprive them of any meaningful discovery. He then explains that in that case, because the first deponent was not in a position to answer questions about the activity and knowledge of the individual whom the plaintiff sought to examine, it would deprive the moving parties of a meaningful discovery if the examination was refused (at paras. 51-52). Accordingly, as was the case in ING , in Scintilore “special circumstances” appear to be only those that relate to a deficiency in the testimony of the initial representative examined.

13In Baylis , Swinton J. at para. 13 confirmed that the fact that it would be quicker and more expedient to examine the proposed second individual directly, as opposed to waiting for the deponent to inform himself by way of answering undertakings, is not part of the test for allowing the examination of a second individual. It is first necessary to show that the deponent could not adequately inform himself of the matters in dispute.

14As earlier stated, in Scintilore a second examination was permitted. In that case the plaintiff’s sought to examine an individual, Hryniw, who was alleged to have knowledge and information crucial to the central disputed issues. Another individual, Polisuk, had been examined and the undertakings with respect to Hryniw had been answered, which showed that there remained an absence of potentially crucial evidence about the knowledge and activities of Hryniw. Campbell J. made a finding that Hryniw was a potentially crucial witness who may have unique knowledge of facts at the heart of the issues in dispute, and because Polisuk was not in a position to answer questions about Hryniw’s knowledge and activities, it would deprive the moving parties of meaningful discovery if they could not examine him. Campbell J. also accepted that it was only on the examination of Polisuk that the moving parties learned of the dearth of Polisuk’s knowledge in respect of facts known only to Hryniw. Therefore, the fact that there had been a lengthy discovery of Polisuk before moving to examine a second deponent was not a bar to relief.

15In my view, the principles set out in the cases reviewed in ING remain of critical importance when addressing the question of whether leave should be granted to examine a second person under Rule 31.03(2) or (3). These principles offer guidance on how the court should assess whether “satisfactory” answers have been given. It remains important to assess the willingness and ability of the deponent to provide the information sought, and to ensure that an evaluation of the quality of the evidence provided is measured by an objective standard, as opposed to the examiner simply being dissatisfied with the answers provided. It may be the case that it is only when these considerations lead to the conclusion that the party is likely to be deprived of a meaningful discovery that the court would go on to consider the other requirements of Rule 31.03(4). Those considerations are: whether attempting to obtain satisfactory answers from only one person entails undue expense and inconvenience, and conjunctively, whether the examination of more than one person would likely expedite the conduct of the action.

THE FIRST EXAMINATION OF THE MUNICIPALITY

The First Examination of the Municipality

16The facts surrounding the examination of the County are specifically set out in the endorsement of Mullins J. at paras. 3-7 as follows:

3Plaintiff’s counsel served a Notice of Examination requiring the attendance of Mr. Mitchell. The County resisted, offering that Mr. Miele was the most knowledgeable deponent and advising that it was he who was produced in the action instituted by the passenger. Counsel for the plaintiff acceded to the defendant’s preference that Mr. Meile be produced. The defendant says it volunteered a broad and unequivocal undertaking to make inquiries of Mr. Mitchell to provide any additional information that he might have. As yet, answers to undertakings given by Mr. Miele have not been completed, but are in progress.

4Mr. Mitchell is a patrolman employed by the defendant municipality. He was on duty over the hours preceding and following the time when Mr. Fortini was traveling. He kept a “Winter Patrol Record” relating to his shift. This document is attached as exhibit “A” to the affidavit of Mr. T. Boland filed in support of the motion. On the face of it, this record identifies the highways patrolled, the time of patrol, the air and pavement temperatures and winter event conditions. There is an area for notes. The format of the document implies that the Winter Event Conditions noted line by line, correspond to the time and place noted. At examination for discovery, Mr. Meile explained that though the record indicates frost noted as of 1.15 am, his understanding was that frost was not noted by Mr. Mitchell before 4:30 of 5:00 am. The interpretation of the record made by Mr. Meile is inconsistent, the moving party says, with the answer he gave to the same question at an examination for discovery in another action.

5The defendant says it has provided Mr. Mitchell’s evidence as to his patrol record, through Mr. Meile’s evidence. This is that the check marks Mr. Mitchell used on the record correspond not to specific times, but to the roadways listed and indicate frost on those roadways. All frost was noted to be “towards dawn” is what the note beside the column says.

6Mr. Meile, it is explained by the defendant, was providing his own interpretation of Mr. Mitchell’s report on the discovery in the passenger’s action. By contrast, he was relating his understanding of Mr. Mitchell’s explanation of the report on the discovery in the Fortini action, hence the discrepancy.

7It remains unclear to this Court how Mr. Mitchell’s record of frost on roadways over which he notes himself as travelling as 1:15; 1:55; 2:05; 2:25; et cetera, could possibly be interpreted to say those roadways only acquired frost hours later after he was on them; i.e. at 4:30 or 5:00 am.

17The motion before Mullins J. was brought by the plaintiffs on the basis that Mr. Meile gave contradictory explanations of Mr. Mitchell’s road patrol record at his discovery in each action, that only Mr. Mitchell possesses the information necessary to understand his actions on the night in question, and their assertion that they will be surprised at trial and prejudiced if not able to examine Mr. Mitchell.

THE APPELLANT’S POSITION

The Appellant's Position

18The appellant argues that in the present case Mr. Meile has agreed to obtain the information requested by the plaintiffs from Mr. Mitchell and provide it by way of undertaking. The motion for leave to examine Mr. Mitchell was brought before those answers could be evaluated, and accordingly there is no evidence of refusal or inability to answer the questions posed. It argues that the plaintiffs did not demonstrate special circumstances to show that it cannot otherwise obtain the discovery to which they are entitled. Contrary to the principles as applied in Scintillore , Westcoast Transmission, Baylis , and ING , Mullins J. permitted the discovery even though there was no evidence that Mr. Meile could not or would not inform himself of the evidence. In fact, Meile provided Mitchell’s explanation. As counsel for the appellant argued, the fact that Mullins J. found Mitchell’s explanation of his road patrol record to be perplexing, as I agree it appears to be, is not a relevant factor. The appellant argues that Mullins J. does not explain how that statement by Mr. Meile prevents Mr. Mitchell’s information from being relayed through Mr. Meile.

19In a nutshell, the appellant argues that Mullins J. erred in permitting the examination of Mr. Mitchell even though the plaintiff’s counsel had the opportunity to obtain Mr. Mitchell’s evidence as to how his road patrol record was created, and further, still has the right of continued discovery of Mr. Meile on the answers given to his undertakings.

20The appellant also argues that Mullins J. erred in averring to a comparison of an unrelated action involving this same municipality (the “Yang action”), which arose from a collision that occurred earlier on the same day, but on a different road. In that action, Ferguson J. made an order permitting the examination of Mr. Mitchell where Mr. Meile had already been examined. In the Yang action, an undertaking had been answered by Mr. Meile which indicated that Mr. Mitchell did not complete his road patrol record contemporaneously with his observations. In para. 14 of her Reasons, cited above, the motions judge refers to the Yang action and her reasons for making the same order as Ferguson, J..

THE RESPONDENTS’ POSITION

The Respondents' Position

21The respondents argue that the decision to grant the examination of a second representative of the Municipality is a discretionary one, and the burden imposed on an appellant seeking to appeal a discretionary order is high. In Kostopoulos v. Jesshope (1985), 1985 2047 (ON CA) , 50 O.R. (2d) 54 (C.A.) at pp. 69-70, leave to appeal to S.C.C. refused (1985), 50 O.R. (2d) 800n, the Ontario Court of Appeal indicated that it must be shown that the discretion was exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law. If no such error was committed, the appellate court is not entitled to interfere with the exercise of such discretion.

22The respondents argue that the considerations set out in the caselaw developed before the amendment to Rule 31.03 came into effect are no longer relevant given that the legislature has subsequently specifically outlined in subrule (4) those considerations that are to affect the question of whether to grant an order for discovery of a second deponent. The respondents’ position is that the motions judge turned her mind to each of the factors in Rule 31.03(4), and that her order reflects this at para. 13, where she determines that the most expeditious and least expensive disposition of these claims, on their merits, will only be frustrated should Mr. Mitchell not be directly examined.

23In addition to her findings relating to expense, inconvenience and expediency, the respondents also argue that the motions judge made findings consistent with the prior case law. They liken this case to that of Abitibi-Price Inc. v. Sereda, [1984] O.J. No. 2220 (H.C.) [ Abitibi-Price ] , in which an examination of a second corporate witness was allowed because only he had actual knowledge of the events underpinning the litigation, and to not so order would have deprived the plaintiff of crucial evidence. The respondents also point to Scintilore , arguing that Mullins J.’s reasoning is consistent with the principles applied in those cases because, like Abitibi-Price and Scintilore , only by examination of Mr. Mitchell will the evidence of the only living party having firsthand knowledge of the road conditions that night be discovered prior to trial.

24The plaintiff’s also argue that when they first named Mr. Mitchell on their Notice of Examination, they were given assurances that the patrol record fully articulated the evidence, which demonstrated frost forming at 1:15 a.m. The transcript evidence of Mr. Meile in the passenger's action confirmed Mr. Mitchell's observation of frost on the road at 1:15 a.m. The defendant’s assurance turned out to be inaccurate given the change in testimony at Mr. Meile's discovery in this action. The respondents submit that it would be wrong to permit the defendant to benefit from its inaccurate assurances, to surprise the Fortini family at trial, and to deprive them of knowing from Mr. Mitchell what his actions and observations were on the morning of the accident. Were it not for the assurances given, the plaintiffs would have examined Mr. Mitchell in accordance with the Notice of Examination. The respondents rely on the principle set out in Berlingieri v. DeSantis , 1980 1823 (ON CA) , 31 O.R. (2d) 1 , [1980] O.J. No. 3825 (C.A.) which is that the defendant cannot benefit from its own wrong.

ANALYSIS

Analysis

25I conclude that the correctness of the order is open to very serious debate, which is necessary to satisfy the first of the two-part requirements of Rule 62.02(4)(b): Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC) , 8 O.R. (3d) 282 (Gen. Div.); Catellier v. HSBC Securities (Canada) Inc ., [2003] O.J. No. 3592 (Div. Ct.) .

26As previously discussed, the prevailing case law prior to the amendment indicates that the primary question to be asked was whether restricting discovery to the examination of Mr. Meile had been shown to result in unsatisfactory answers respecting all of the issues raised. Accordingly, the moving parties were required to demonstrate that the questions, and any follow up questions, were unanswered, or answered in an incomplete, unresponsive or ambiguous manner. While acknowledging that the answers to undertakings given by Mr. Meile have not been completed, Mullins J. did not note that she would be unable to assess the quality of his evidence in the absence of those undertakings. Instead, she focused on the ambiguity between the interpretations given to the road patrol record by Mr. Meile in the two discoveries. Yet an explanation had been provided; in the passenger action Mr. Meile was giving his own interpretation of the record, while in his discovery in this action he was relaying what Mr. Mitchell told him. While there was ambiguity between the two examinations, there was no evidence before the motions judge to suggest that Mr. Meile was either not able to answer the question or is not able to avail himself of the answer if the question is put to him.

27Accordingly, the motions judge appears not to have considered facts that informed the primary question before her.

28Also, it is to be remembered that although the examiner might not like the answer received, the test is not a subjective one. The motions judge, as indicated in para. 7 of her Reasons, assessed Mr. Mitchell’s explanation of his record as being troubling. Again, the question is whether there has been a full inquiry into all matters which may be relevant to the issues raised on the pleadings, and it is problematic that she concluded, at para.13, that “the most expeditious and least expensive disposition of these claims, on their merits, will only be frustrated should Mr. Mitchell not be directly examined…” when it was premature to conclude that any further clarification could not come through Mr. Meile.

29Further, the reasons of the motions judge focus on the centrality of Mr. Mitchell as a witness in this case. From the principles articulated in the case law, it appears to be an error to base the granting of leave on a consideration of the importance of a witness to the case, without first showing how the information cannot be obtained through the first deponent.

30Also, there were no facts or evidence in this case to support the conclusion that obtaining further information from Mr. Meile would entail “undue expense and inconvenience”. In the same way, there were no facts or evidence in this case to support the other requirement for leave, which is that bypassing Mr. Meile and initiating a second examination would expedite the conduct of the action.

31I have considered the respondents’ submission that the County should not be able to benefit from the fact that it misled the plaintiffs, however innocently that might have occurred. However, there appears to be nothing in the wording of Rule 31.03(4) itself or the case law that would permit such a factor to be a consideration on this motion.

32Turning to the second prong of Rule 62.02 (4) , in order to satisfy this branch of the test the appellant must show that the proposed appeal would involve matters that transcend the particular interests of the parties, and involves matters of general public importance: Rankin v. McLeod , Young, Weir Ltd, 1986 2749 (ON SC) , [1986] O.J. No. 2380 (H.C.); Greslik v. Ontario Legal Aid Plan (1998), 1988 4842 (ON SCDC) , 65 O.R. (2d) 110 (Div. Ct.). General importance has been defined as relating to matters of public importance and matters relevant to the development of the law and the administration of justice.

33Given that there are no appellate decisions that provide an analysis of Rule 31.03 (4), and conflicting interpretations in Waxman and Infinium of the import of the principles in the cases determined before the amendment, it is of public importance to ensure that there is clarity in the principles to be applied in ordering a second examination of a corporate party. Left unexamined, the decision of Mullins J. stands for the proposition that the examining party is entitled to request a second examination of front-line workers and individuals without first establishing that the information cannot otherwise be obtained through the first witness or otherwise through the undertaking process. As such, the decision calls into question the principles of law previously developed and applied. It permits multiple discoveries without a clear understanding of the principles to be applied when interpreting Rule 31.03 (4). It would be desirable to have greater clarity for the bench and the bar when faced with this question. Accordingly, I find that the requirements of the second branch of Rule 62.02 (4) (b) are met in this case.

34For the foregoing reasons the motion for leave to appeal is granted.

35If the parties are unable to agree upon costs of the motion they may make brief submissions in writing, no longer than two pages in length, to be submitted to the office of the judicial assistants. The moving party’s are due within 10 days of the release of this decision, the respondents five days thereafter, and any reply three days following.