Leave Required for Refusals Motion After Set Down – Part II

We previously posted on the decision of Jetport v. Jones Brown, 2013 ONSC 2470 (S.C.J.), which held that leave is required for a refusals motion that is commenced after the action has been set down.  The Jetport decision has been followed in Hamilton v. Ontario(Minister of Transport), 2013 ONSC 4536 (S.C.J.).

In Hamilton, a representative of the defendant was examined for discovery on March 30, 2012.  In response to a status notice, the plaintiffs delivered a trial record and set the matter down for trial on January 22, 2013.  The plaintiff then brought a motion seeking answers to refusals on March 7, 2013.  The motion was dismissed by Master Haberman on the basis that the plaintiff had not sought leave for as required by rule 48.04 and the plaintiff appealed.
On appeal Firestone J. held that although there was disagreement in the case law on the issue of whether leave is required, Master Haberman was not in error when she chose the line of authority that appeared most persuasive.  The line of authority followed by Master Haberman and approved of on appeal was that of Jetport v. Jones Brown.     

Because leave was not sought, the Master was correct in not considering the issue of refusals. 
It may have been that the Master’s decision was meant to be a procedural slap on the wrist to the plaintiff.  The decision notes that the requirement for leave was neither sought nor addressed by the plaintiff in their original motion material.  The Master’s decision did not preclude the plaintiff from bringing a motion for leave to have their refusals motion heard.  Counsel should be cautious about setting a matter down if they wish to pursue refusals.  They should also seek leave of the court, and address this in motion materials when in doubt.  

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