In Jetport v. Jones Brown [2013 ONSC 2740 (S.C.J.)], Master Graham attempted to resolve some uncertainty as to whether a party that has set an action down for trial or has consented to an action being placed on a trial list is required to obtain leave, pursuant to Rule 48.04, to bring a refusals motion.
The plaintiff argued that leave was not required since Rule 48.04(2) does not relieve a party from any obligation imposed by Rule 31.07 (which addresses the failure to answer on discovery).
The Court considered the relevant provisions of the Rules of Civil Procedure. Master Graham concluded that absent a Court Order, there is no obligation on a party to answer questions refused at an Examination. Accordingly, Master Graham held that the exception relied on by the plaintiff only applied for a motion to compel answers to undertakings, not refusals.
As a result, a party that has set an action down for trial or has consented to the action being placed on a trial list must seek leave of the Court to initiate or continue a motion to compel answers to questions refused at an Examination for Discovery. Practically, this means that parties must ensure that they bring any motion for refusals at the earliest opportunity.