Case reference: BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737
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The plaintiffs sued their former accountants. After the plaintiffs’ lawyer set the action down for trial, the plaintiffs brought a motion for an order granting them leave to conduct an examination for discovery of the individual defendant.
Held, the motion should be granted.
A moving party is not required to show a substantial or unexpected change in circumstances in order to obtain leave under rule 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to take a further interlocutory step after setting the action down for trial. The court should make the order that is just in the circumstances of each particular case. In this case, the plaintiffs did not instruct the lawyer acting for them at the time to set the action down for trial. There was no basis to conclude that they had expressly waived their discovery rights. The defendant was in default of his obligation to serve an affidavit of documents. It was difficult to see how the plaintiffs could have arrived at an informed decision to waive their discovery rights without being aware of the documentary evidence the defendant intended to rely upon in support of his defence. Granting the relief requested by the plaintiffs would not render rule 48.04(1) meaningless or interfere with the policy objectives of the rule. The action was not ready for trial, and an examination for discovery of the defendant would not result in any delay or wasted court time. There would be no prejudice or hardship to the defendant if the order sought was granted.
The filing of the trial record has resulted in the plaintiffs being bound by the provisions of rule 48.04(1). For the purposes of this motion, the important part of the Rule states as follows: “48.04(1) . . . any party who has set an action down for trial . . . shall not initiate or continue any motion or form of discovery without leave of the court.”
The objective of rule 48.04(1) is to ensure that matters are not set down until they are ready for trial. This practice avoids delays and the loss of valuable trial time. See Cromb v. Bouwmeester, [2014] O.J. No. 4298, 2014 ONSC 5318 (S.C.J.), at para. 21.
It should also be noted that there exists a long-established exception to the substantial or unexpected change in circumstances test when dealing with inadvertence or where serious matters affecting substantive rights are in issue. See AGC Mechanical, at para. 12.
*source: Ontario Reports
