Denis v. Lalonde, 2016 ONSC 5960

Clarification of test for granting leave after trial record filed under rule 48

Released October 27, 2016 | Full decision [CanLII]

The Plaintiffs completed discoveries and filed their trial record back in 2011.  In 2016, they brought a motion to compel production of certain information and conduct a subsequent examination. The court was left to decide what test should be applied when deciding whether to grant relief after a trial record has been filed.

The Court grappled between two approaches, one broad and one narrow.  The Court ultimately sided with the narrow approach.  In order to be granted leave to conduct a subsequent examination after filing a trial record (or consenting to an action being placed on a trial list), the moving party must show that there was an unexpected change in circumstances, and that failing to grant leave would be manifestly unjust.  The Court wrote:

I have reached the conclusion that BNL was wrongly decided and that the test to be followed in order for leave to be granted under r. 48.04(1) is whether the moving party can show a substantial or unexpected change in circumstances such that a refusal to grant leave would be manifestly unjust.

The Court went on to note that parties have ongoing obligations to disclose relevant information.  Therefore, if a party discloses relevant information after a trial record has been filed, that information can cause a “substantial or unexpected change in circumstances”.  The Court wrote:

If additional documentation or information is provided in keeping with the continuing obligation to disclose after the matter has been set down for trial, this in and of itself may constitute an unexpected change that may form the basis for a request that leave be granted for some additional production, discovery or other appropriate interlocutory relief. Efforts to broaden the test are therefore unnecessary…

In this case, the Court refused to grant leave.  The Plaintiffs knew from the action’s commencement that there were live questions about insurance coverage.  The Plaintiffs could have discovered the party they were seeking to discover on this motion before setting their action down for trial.  The Plaintiffs also provided no explanation for why they waited 5 years after filing their trial record to bring this motion. The motion was dismissed.

Read the full decision on CanLII

Counsel:

  • Plaintiff: James M. Ross
  • Third Party: F. Reil
  • Judge: R. Dan Cornell J.
Jordan Kofman
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Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.