When starting a new lawsuit, a common question we receive from clients is “how long before we get to trial?” The litigation process can take years, although the good news is that the vast majority of cases settle long before trial.
But how long will it take if no settlement can be reached?
In most cases, the parties will at least need to complete the discovery process and mediation before a trial can be scheduled. In Ontario, trial dates in the Superior Court of Justice are often scheduled more than a year and a half or two years in advance, depending on the Court location and the length of trial. A summary trial or a summary judgment motion can significantly speed up the process.
To schedule a trial, the plaintiff must set the action down for trial. This places the matter in queue for scheduling of a pretrial conference and a trial. Once the plaintiff does so, they lose the right to take certain steps that they were permitted to take earlier in the process.
This can cause further delay in the process, as a plaintiff may delay placing the action on the trial list, as a way to proceed with a motion that they would not be permitted to bring later on. However, the recent court decision of Heathcote v. RBC Life Insurance Company may help alleviate some of that delay. The court reversed a previous decision and found that a plaintiff may bring a “refusals” motion after setting down the action for trial, potentially speeding up the process of obtaining a trial date.
Consequences of Setting Down
Rule 48.04 of the Rules of Civil Procedure outlines the “Consequences of Setting Down”. This rule states that a 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 (i.e. getting the court’s permission to do so), which will only be granted in limited circumstances.
The rule also provides for certain exceptions, pursuant to which the party is entitled to bring certain types of motions without leave of the court.
Previous Decision of Jetport v. Jones Brown Inc.
The rule has a particular impact on undertakings and refusals, which arise from examinations for discovery (part of the discovery process). If a party is asked to produce a document at their examination for discovery and they agree to produce it, that becomes an undertaking that must be answered within 60 days. If the party refuses to produce the document, that becomes a refusal.
Based on the wording of the exceptions in rule 48.04, there was a widespread belief that after setting the action down for trial, the plaintiff was entitled to bring a motion requiring the defendant to answer undertakings, but that the plaintiff would not be entitled to bring a motion requiring the defendant to answer refusals.
This belief was supported by the 2013 decision of Jetport v. Jones Brown Inc. In that case, the plaintiff sought to bring a motion requiring the defendant to answer refusals, after the plaintiff had already set the action down for trial. In considering the request, the court found:
- That the plaintiff could not bring such a motion without leave of the court;
- That leave of the court should not be granted unless there was a “substantial and unexpected change in circumstances such that refusal to grant leave would be manifestly unjust”; and
- That the plaintiff did not meet the test for granting leave, and therefore was not permitted to bring its motion.
Impact of Jetport decision
As per the Jetport decision, it was widely understood that a plaintiff’s right to bring a motion to compel answers to refusals would end once the plaintiff set the action down for trial.
As a result, plaintiffs would need to decide whether to delay setting the action down for trial in order to bring a motion to compel answers to refusals.
The Court’s Recent Decision in Heathcote v. RBC Life Insurance Company
In the recent decision of Heathcote v. RBC Life Insurance Company, the court came to the opposite conclusion.
The court carefully considered the wording of rule 48.04, and found:
“In my view, this section should be interpreted to mean that the party who has set the action down for trial does not require leave to bring a motion to compel answers to proper questions that the opposing party has refused to answer at the examination for discovery. In that sense, I disagree with the decision in Jetport Inc. v. Global Aerospace Underwriting Managers.”
The court also found that in the alternative, if the plaintiff required leave of the court, it would be appropriate to grant leave to the plaintiff. The court wrote:
“The failure to fulfill undertakings given on an examination for discovery and the refusal to answer proper questions are closely related, often interconnected, topics. It would not be in the interests of justice to allow a motion for undertakings to proceed and not allow a motion for refusals to proceed in the same action. That approach would simply encourage manipulative parties to refuse to answer any questions, rather than provide an undertaking.”
This was a significant departure from the “substantial and unexpected change” test referred to in Jetport.
Conclusion
The Heathcote decision sets an important precedent and reverses the approach used in the Jetport decision. As a result, plaintiffs can now set their action down for trial without losing the right to bring a motion afterwards challenging the defendant’s refusals.
This results in changes to the litigation process, and in some cases may reduce the amount of delay before trials. Even if a plaintiff wishes to compel answers to refusals, they may now bring a motion to do so while they are in queue for pretrial and trial dates.
If you want advice on your legal situation, including the appropriate strategy for moving your case forward, please feel free to contact us.
