SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NOS.: 09-CV-375539 and 09-CV-375539-00A1
MOTION HEARD: October 28, 2015

Parties

Re: AGOSTINO SETTECASE
Plaintiff

v.

AGATA SETTECASE
Defendant

v.

FABIO SETTECASE
Third Party

BEFORE: Master Lou Ann M. Pope

APPEARANCES:
Brendan Donovan, Wagner Sidlofsky LLP, for moving plaintiff and third party
Fax: 416-364-6579

L. Lutwak, Drudi Alexiou Kuchar LPP, for responding defendant
Fax: 416-926-3712

REASONS FOR ENDORSEMENT

1The plaintiff and third party seek leave to bring this motion and to compel the defendant’s litigation guardian to answer undertakings and questions refused at his examination for discovery held on November 19, 2014, to amend the Reply and Defence to Counterclaim and amend the statement of defence to third party claim.

2The defendant consents to an order requiring the defendant to answer the undertakings and an order to amend the above-noted pleadings.

3However, the defendant opposes the balance of the motion on the grounds that the plaintiff is prohibited from bringing this motion, pursuant to Rule 48.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, because he set the action down for trial.

Whether Leave to Bring Motion is Required – Rule 48.04

4The plaintiff set the action down for trial on January 8, 2015. This motion was served on the defendant on July 8, 2015.

5Although the plaintiff sought leave to bring this motion in the notice of motion, no oral submissions were made initially on this issue. However, in his factum, he contends that leave is not required as subrule 48.04(2)(a)(iii) creates another exception for motions under rule 31.07 (failure to answer on discovery).

6The defendant submits that leave is required and relies on the decision in Hamilton v. Ontario (Minister of Transportation), [2013] O.J. No. 3284, 2013 ONSC 4536, which held that leave is required to bring a refusals motion after the moving party set the action down for trial. In his decision, Firestone J. upheld the decision of Master Haberman who refused to grant leave to bring the motion. In doing so, Firestone J. concurred with the decision of Master Graham in Jetport Inc. v. Global Aerospace Underwriting Managers, 2013 ONSC 2740, [2013] O.J. No. 2375, who rejected the conclusion of the court in Blagrove v. Whittington, 2010 ONSC 3748, [2010] O.J. No. 2924, which held that even once a party sets an action down for trial, leave is not required to bring a refusals motion.

7At paragraph 16 of his reasons set out below, Firestone J. referenced the Master’s reasons for rejecting the conclusion in Blagrove and explaining why undertakings are to be treated differently than refusals.

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 honouring of undertakings and that this is the only obligation imposed by rule 31.07. In short, the principle 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.

8The plaintiff submits that the decision in Blagrove should be preferred as it is equal authority for the opposite reading of rule 48.04.

9The plaintiff submits further that if leave is required, it should be granted for several reasons, including the fact that the defendant answered one of the refusals at the hearing, and the defendant consented to amendments to the reply and defence to counterclaim which will necessitate further examinations of the defendant.

10In this action, the defendant was examined on November 19, 2014. During his examination, he refused to answer numerous questions. Shortly thereafter, the plaintiff set the action down for trial on January 9, 2015. This motion was served on the defendant on July 8, 2015. The plaintiff provided no explanation for bringing this motion after the action was set down for trial.

11In my view, the defendant’s position is a correct statement of the law as determined by Firestone J. in the Hamilton decision and Master Graham in Jetport. I adopt Master Graham’s reasons, as did Firestone J., for concluding that leave is required to bring a refusals motion after the moving party set the action down for trial. Thus I apply that law to this motion in concluding that because the plaintiff herein set the action down for trial before bringing this motion, the plaintiff requires leave of the court to bring this motion.

Test To Obtain Leave – Rule 48.04

12Neither party made submissions nor filed any authority regarding the applicable test for leave under rule 48.04. The plaintiff’s position is simply that leave is not required in relying on Blagrove.

13The long-standing test for the granting of leave under rule 48.04(1) was enunciated in Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740 (Gen. Div.). The moving party has the onus to establish that there has been a substantial or unexpected change in circumstances such that a refusal to make an order under rule 48.04(1) would be manifestly unjust.

14Given that the plaintiff has adduced no evidence to satisfy this test, I find that the plaintiff has failed to satisfy the test for leave. Therefore, leave to bring this motion to compel the defendant to answer questions refused is denied.

Costs

15This motion was necessary as the plaintiff was required to bring the motion to obtain leave to amend his reply and defence to counterclaim. The defendant consented to this relief. In addition, the defendant answered all undertakings after being served with this motion. However, the motion had to be argued on the leave issue in which the defendant was successful. Given the divided result, each party shall bear his or her own costs.

Disposition

16The following orders shall be issued (in order of relief set out in notice of motion):

1. Leave to bring this motion under rule 48.04(1) is refused with respect only to the relief sought in paragraphs 2 (refusals only) and 3 (refusals) only;

2. On consent (undertakings only);

3. On consent (undertakings only);

4. On consent;

5. On consent;

6. Dismissed;

7. No order as to costs.

17Also on consent, the defendant shall be entitled to conduct further examinations for discovery of the plaintiff and third party on the amendments.

_(original signed) ___

Master Lou Ann M. Pope