Hamilton et al. v. Her Majesty the Queen in Right of Ontario, as represented by the Minister of Transportation for the Province of Ontario, et al.

[Indexed as: Hamilton v. Ontario (Minister of Transportation)]

Ontario Reports

Ontario Superior Court of Justice,

Firestone J.

July 15, 2013

116 O.R. (3d) 636 | 2013 ONSC 4536

Case Summary

Civil procedure — Discovery — Examination for discovery — Master not erring in dismissing motion for answers to questions refused at examination for discovery on basis that leave to initiate motion was required as action had been set down for trial. [page637]

The plaintiff brought a motion for answers to questions refused and taken under advisement at the defendant's examination for discovery. The master dismissed the motion on the basis that leave was required to initiate the motion as the action had been set down for trial, and leave had not been sought. The plaintiff appealed.

Held, the appeal should be dismissed.

There are conflicting decisions from the Superior Court of Justice regarding whether leave is required to bring or initiate a motion for refusals once a party has set an action down for trial. The master followed the correct line of authority in arriving at her disposition of the motion.

Blagrove v. Whittington, [2010] O.J. No. 2924, 2010 ONSC 3748, 98 C.P.C. (6th) 59 (S.C.J.), not folld

Jetport Inc. v. Global Aerospace Underwriting Managers (2013), 115 O.R. (3d) 772, [2013] O.J. No. 2375, 2013 ONSC 2740 (S.C.J.); Van Ginkel v. East Asia Minerals Corp., [2010] O.J. No. 541, 2010 ONSC 905 (S.C.J.), consd

Other cases referred to

Filanovsky v. Filanovsky, [2009] O.J. No. 919, 176 A.C.W.S. (3d) 72 (S.C.J. — Master); Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131, [2008] O.J. No. 1771, 292 D.L.R. (4th) 313, 53 C.P.C. (6th) 308, 236 O.A.C. 76, 64 C.C.L.I. (4th) 52, 165 A.C.W.S. (3d) 770 (Div. Ct.)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 31.07, 34.15, 48.04, 48.04(1), 48.04(2)(b), (iii)

APPEAL from an order dismissing a motion for answers to questions refused at the examination for discovery.

Leanne Kenning, for plaintiffs.

Amelia M. Leckey, for defendant/respondent Her Majesty the Queen.

[1] FIRESTONE J.: — This is an appeal from the order of Master Haberman dated March 7, 2013 dismissing the plaintiffs' motion for answers to questions refused and taken under advisement (deemed refusals) at discovery by the defendant, Her Majesty the Queen in Right of Ontario, as represented by the Minister of Transportation of the Province of Ontario ("MTO").

Background

[2] This action arises with respect to injuries sustained in a motor vehicle collision which took place on June 12, 2009. The statement of claim was issued on October 1, 2010. The statement of defence and cross-claim on behalf of the MTO was delivered on or about April 6, 2011. The statement of defence and cross-claim on behalf of the other defendants, Miller Paving Limited and [page638] Brennan Paving & Construction Ltd., was delivered on or about May 20, 2011.

[3] A representative of the MTO was examined for discovery on March 30, 2012. On November 1, 2012, the court issued a status notice. On January 22, 2013, the plaintiffs delivered a trial record and set the action down for trial.

[4] On March 7, 2013, the master dismissed the plaintiffs' motion pertaining to refusals and advisements on the basis that the action had been set down for trial and pursuant to rule 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"), "leave" was required to initiate such a motion. The master indicated in her reasons that leave was neither sought nor addressed in the supporting affidavit. A consent order was agreed to between the plaintiffs and MTO regarding outstanding undertakings and one refusal which the MTO agreed to answer.

Issues for Determination

[5] The issues on this appeal are as follows:

(1) Did the master err in law in holding that the plaintiffs were required, pursuant to rule 48.04, to seek leave of the court to bring their motion for refusals and questions taken under advisement (deemed refusals) after the matter had been set down for trial?

(2) Did the master err in refusing to hear the motion given that the leave was not sought?

Standard on this Appeal

[6] As confirmed in Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131, [2008] O.J. No. 1771 (Div. Ct.), at para. 40, the standard of review of a master's order, whether it be final or interlocutory, is that it should only be interfered with "if the Master made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error".

The Master's Reasons

[7] The master stated in her reasons that although there is some recent disagreement in the case law, the law in Ontario has long been that, while undertakings remain to be complied with notwithstanding that an action is set down for trial without the need for leave, leave is required to pursue refusals.

[8] The master indicated in her reasons that she chose to follow the line of cases which stand for the proposition that leave [page639] must be sought and a basis for granting leave must be disclosed in the evidence filed on the motion.

Analysis

[9] As confirmed in Filanovsky v. Filanovsky, [2009] O.J. No. 919, 176 A.C.W.S. (3d) 72 (S.C.J. -- Master), at para. 9, it is the court's role when faced with conflicting case law of equal authority to seek to resolve the conflict in accordance with the principles of stare decisis and choose the line of authority that appears most persuasive. That is precisely what the learned master did in this case.

[10] For the reasons that follow, I find there was no error of law in the master's decision. The master correctly followed the line of authority which holds that once a party has set an action down for trial, leave is required to initiate or continue any motion save and except a motion to enforce the obligations imposed by the various rules listed in rule 48.04(2)(b). The obligation imposed by one of the listed rules, namely, rule 31.07, is not related to refusals. I further find that the master did not err in refusing to hear the motion for refusals given that such leave was not sought in the notice of motion.

[11] There are conflicting decisions from this court regarding whether leave is required to bring or initiate a motion for refusals (which includes a question taken under advisement) once a party has set an action down for trial. Master Haberman, in my view, followed the correct line of authority in arriving at her disposition on the motion.

[12] In Blagrove v. Whittington, [2010] O.J. No. 2924, 2010 ONSC 3748 (S.C.J.), Lauwers J. held that even once a party sets an action down for trial, leave is not required to bring a refusals motion. Conversely, in Van Ginkel v. East Asia Minerals Corp., [2010] O.J. No. 541, 2010 ONSC 905 (S.C.J.), Perell J. held that leave is required to bring a refusals motion after the action is set down for trial.

[13] Perell J. in Van Ginkel, at para. 17, stated in part:

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 so 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), 1993 5492 (ON SC), 16 O.R. (3d) 250 [1993] O.J. No. 2741 (Gen. Div.). [page640]

[14] Master Graham, in Jetport Inc. v. Global Aerospace Underwriting Managers (2013), 115 O.R. (3d) 772, [2013] O.J. No. 2375, 2013 ONSC 2740 (S.C.J.), sought to resolve the conflict between these two authorities and the interplay between rules 48.04, 31.07 and 34.15. I agree with Master Graham's conclusion that leave is required for a party to bring a motion for answers to refusals after that party has set the action down for trial.

[15] The plaintiffs' main argument on this appeal is that on a plain reading, the inclusion of the obligations under rule 31.07 in the list of exceptions for leave contained in rule 48.04(2)(b)(iii), in conjunction with the relevant sanctions set out in rule 34.15, provide that the plaintiffs are permitted to bring a motion compelling answers to questions improperly refused without leave of the court.

[16] In Jetport, Master Graham, in rejecting the conclusion in Blagrove, explained why undertakings are to be treated differently than refusals. Master Graham stated as follows, at para. 37:

My decision is also contrary to the decision in Blagrove, supra. I respectfully disagree with the passage in that decision, quoted in paragraph [20] above, that "there is no principled basis for treating refusals, which fall under 'rule 31.07 (failure to answer on discovery)' listed in rule 48.04(2)(b)(iii), differently from undertakings compliance under rule 48.04(2)(a)." Blagrove fails to consider whether rule 31.07 creates an obligation in respect of refusals that continues under rule 48.04(3), which as concluded above, it does not. The decision also fails to recognize that the obligation under rule 31.07 preserved in rule 48.04(2)(b)(iii) is that created by rule 31.07(4) in respect of the honoring of undertakings and that this is the only obligation imposed by rule 31.07. In short, the principled basis for treating undertakings differently from refusals in the context of rule 48.04 is that undertakings are obligations that pre-date the setting down of the action and refusals are not.

[17] Accordingly, I find that there was no error of law in the decision of Master Haberman. The master, in my view, correctly held that leave is required to bring a refusals motion once the matter had been set down for trial. Because leave was not sought in the motion, the master was correct in not considering the issue of refusals.

[18] I note that there is nothing in the master's order which precludes the plaintiffs from bringing a motion for leave to have their motion for refusals heard on the merits and the plaintiffs are at liberty to do so.

[19] The plaintiffs' appeal is dismissed. If the parties are not able to agree on costs, written submissions with a costs outline totalling no more than two pages may be filed within 15 days.

Appeal dismissed.

End of Document