Listing for Trial. Jetport Inc. v. Global Aerospace Underwriting Managers et al
In Jetport Inc. v. Global Aerospace Underwriting Managers et al (Ont Sup Ct, 2013) the Superior Court considered the rule that leave of the court must be sought to allow or continue discovery after the action has been set down for trial:
 Applying my conclusion to the case before me, Jetport, which is attempting to continue its motion for refusals against Jones Brown after having set the action down for trial, must seek leave of the court in order to do so. . D'Souza v. Brunel International Inc. (ITECC Consulting)
What is the test for granting the leave required under rule 48.04(1) and should leave be granted?
 The applicable rule is 48.04(1) which is set out above and which, for ease of reference, is as follows:
48.04 (1) Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court. O. Reg. 436/10, s. 1 (1). The test for the granting of leave under rule 48.04(1) is set out in Hill v. Ortho Pharmaceutical (Can.) Ltd., 1992 CarswellOnt 351, 11 C.P.C.(3d) 236 (Gen. Div.). In this case, the plaintiffs’ new counsel, who was “flabbergasted that the examination of the defendant produced only 16 pages of transcript”, sought leave to conduct a further examination for discovery of the defendant after the plaintiffs’ original lawyer had set the action down for trial. In dismissing the plaintiffs’ appeal from Master Donkin’s decision dismissing the motion, E. Macdonald J. stated (at paragraph 10):
“10 In order for the plaintiffs to succeed in obtaining the right to further discovery, they must first meet the requirements of Rule 48.01(4). There are many decisions which deal with the consequences of setting a matter down for trial. The significance of setting a matter down for trial is evidenced by, among other things, the fact that counsel setting the matter down for trial must sign a certificate to the effect that everything has been done to place the matter on the list for trial. The authorities make it clear that setting a matter down for trial is not a mere technicality of procedure. Before it can be vacated to permit any further discovery or other interlocutory proceedings, there must be a substantial or unexpected change in circumstances such that a refusal to make an order under Section 48.04(1) would be manifestly unjust. There are several authorities in support of this proposition which Counsel for the defendant cited to me. (See Kovary v. Heinrich, et al. (1974), 5. O.R. (2d) 365 at page 366 (H.C.J.); Tolbend Construction Ltd. et al. v. Freure Holmes Ltd. et al. (1984), 45 C.P.C. 42 at page 44 (Ont. Div. Ct.); Elder et al. v. Swiss Chalet Bar-B-Q et al., an unreported decision of Master Sandler (November 21, 1983); affirmed in an unreported decision of Mr. Justice Labrosse (January 4, 1984); Lando & Partners, et al. v. Upshall, et al. (1983), 39 C.P.C. 45 at pages 47 to 48 (Ont. H.C.J.))” [Emphasis added] The wording of the test for granting leave highlighted in this excerpt from Hill is taken almost verbatim from R. E. Holland J.’s decision in Kovary supra, in which he stated:
“...[B]efore any certificate of readiness is vacated to permit further interlocutory proceedings or discovery, there should be a substantial and unexpected change in circumstances to the extent that to refuse the order would be manifestly unjust.” The “substantial or unexpected change in circumstances” test formulated in Kovary under the pre-1985 Rules and followed in Hill under the current Rules has been applied in numerous subsequent cases, some of which counsel referred to in their material and submissions.
 In Machado v. Pratt & Whitney Canada Inc., 1993 CanLII 5492 (ON SC), 1993 CarswellOnt 485, 16 O.R.(3d) 250 (Gen. Div.), the plaintiff’s solicitor set the action down for trial while a decision on a motion before a master was under reserve. After the master’s decision was released, the plaintiff moved for leave to appeal it. Wilkins J. cited both Kovary and Hill in dismissing the motion on the basis that “It is not a substantial or unexpected change in the circumstances to discover that one has either won or lost before a court of the first instance”.  The passage from Hill highlighted in paragraph  above was quoted and relied upon by Reilly J. in Fraser v. Georgetown Terminal Warehouses Ltd.,  O.J. No. 573 (S.C.J.), in which the court refused to allow further discovery after the setting down of an action. Reilly J. applied the law as follows (at paragraph 8):
“8 Put quite simply, I must determine whether subsequent to the defendants' consenting to this action being set down for trial, there has been a "substantial or unexpected change in circumstances" that to deny them the relief they seek would be "manifestly unjust".” In LML Investments Inc. v. Choi,  O.J. No. 1065 (S.C.J.), Wein J. quoted the same passage from Hill in refusing the defendant leave to conduct examinations for discovery after he had set the action down for trial. I will refer to this decision below because the case involved a party setting an action down for trial in part to minimize the delay in obtaining a trial date.
 Both Hill and Fraser were cited with approval by Howden J. in Benedetto v. Giannoulias,  O.J. No. 3218. In that decision, the defendant, who had consented to the action being listed for trial, was granted leave to conduct a further examination for discovery of the plaintiff on the basis that the volume of medical documentation produced by the plaintiff subsequent to the listing of the action did constitute a sufficient change in circumstances that to refuse leave would be manifestly unjust.
 It should be noted that in Gloucester Organization Inc. v. Canadian Newsletter Management (1995), 1995 CanLII 7144 (ON SC), 21 O.R.(3d) 753 (Gen. Div.), Borins J. found that a motion for leave to amend pleadings required a consideration of different principles than when leave is sought to proceed with a motion or other interlocutory relief. In Tanner v. Clark,  O.J. No. 581 (Gen. Div.), Wilson J. accepted this approach and held (at paragraph 26):
“26 . . . Once a trial date has been set, the test of substantial and unexpected change in circumstances makes sense for routine interlocutory matters. However, where substantive rights are affected, the merits of the requested relief become a fundamental consideration to ensure the case is fully canvassed at trial. At the same time, full consideration shall be given to any prejudice to the party opposing the motion that cannot be compensated for by costs.” As the motion before me is for leave to continue a motion for refusals and for further discovery based on questions ordered answered, it would not fall within the class of cases referred to by Wilson J. in Tanner as affecting substantive rights. These cases are referred to for the sake of the completeness of my review of the law on when leave should be granted under rule 48.04(1).
 Perell J. in Van Ginkel, supra, in addition to providing his view of the law on whether leave was required to bring motions for undertakings and refusals, stated the test for granting leave as follows (at paragraph 17):
“17 . . . Once a party has set an action down for trial, it is a matter of discretion in the particular circumstances of the case whether the court will grant leave to initiate or continue a motion or form of discovery. However, the setting down for trial is not a mere technicality and the test for granting leave to permit further discovery or other interlocutory proceedings, is that there must be a substantial or unexpected change in circumstances such that a refusal to grant leave would be manifestly unjust or the interlocutory step must be necessary in the interests of justice. Hill v. Ortho Pharmaceutical (Canada) Ltd.,  O.J. No. 1740 (Gen. Div.) at para. 3; Machado v. Pratt & Whitney Canada Inc. (1993), 1993 CanLII 5492 (ON SC), 16 O.R. (3d) 250  O.J. No. 2741 (Gen. Div.); White v. Winfair Management Ltd.,  O.J. No. 1542 (Master) at paras. 15-16; Benedetto v. Giannoulias,  O.J. No. 3218 (S.C.J.).” [Emphasis added] Perell J. dismissed the motion. Most significantly for the purpose of the motion before me, in his framing of the applicable test, he added to the requirement that there be “a substantial or unexpected change in circumstances such that a refusal to grant leave would be manifestly unjust” the further words “or the interlocutory step must be necessary in the interests of justice”.
 The statement of the law in Van Ginkel was considered more recently in A.G.C. Mechanical Structural Security Inc. v. Rizzo,  O.J. No. 4759 (Master Glustein), reversed at  O.J. No. 933 (S.C.J.). The plaintiff had brought a motion “for directions with respect to matters regarding production and discovery”. The motion was adjourned to permit cross-examinations on the supporting affidavits and a motion on refusals and undertakings from cross-examinations. Following the first attendance on the motion and before the new return date, plaintiff’s counsel received a status notice, and instead of requesting a status hearing, he served and filed the trial record, thus setting the action down for trial. The plaintiff then sought leave to continue the original motion.
 On the return of the motion, Master Glustein referred to many of the same authorities as are reviewed above, including Hill and Van Ginkel, and applied the “substantial or unexpected change in circumstances” test in refusing to grant leave.
 Master Glustein’s decision in A.G.C. Mechanical was appealed. In overturning the decision, Frank J. reviewed Perell J.’s decision in Van Ginkel and interpreted his application of the “substantial and unexpected change in circumstances” test as identifying two circumstances in which a party may be granted leave under rule 48.04 ( O.J. No. 933 at paragraphs 21and 22):
“21 Perell J., at para. 17, provides a synopsis of the principles he extracted from his review of the relevant cases. I adopt his analysis, in particular his final statement in which he sets out the test for granting leave to permit further discovery or other interlocutory proceedings when substantive rights are not in issue. He states that there are two circumstances in which leave is available: Frank J. paraphrased Perell J.’s statement of the law in Van Ginkel as follows (at paragraph 24):
1. where there is a substantial or unexpected change in circumstances such that a refusal to grant leave would be manifestly unjust; and,22 This statement of the law is consistent with the contextual approach adopted in Tanner and rule 1.04 of the Rules of Civil Procedure which requires that the rules be construed in such a way as secures "the most expeditious and least expensive determination of every civil proceeding on its merits."”
2. where the interlocutory step is necessary in the interests of justice.3
“. . . [E]ven in the absence of a substantial or unexpected change in circumstances, leave can be granted with respect to an interlocutory step where leave is in the interests of justice.”Frank J. then found that Master Glustein exercised his discretion too narrowly in failing to consider whether leave could be granted “in the interests of justice”. She overturned his ruling on the basis that the consequences of the decision of plaintiff’s counsel to avoid the dismissal of the action by filing the trial record were unintended and that to grant leave in those circumstances would not so clearly undermine the policy of rule 48.04 as to warrant impairing the prospects for a just resolution of the action. Frank J. also considers the balance of prejudice and concludes that there would be no prejudice to the defendants resulting from the trial record being vacated but there would be prejudice to the plaintiff from being denied “an important tool in the preparation for trial”.
 On the motion before me, Jetport submits that it should be granted leave to continue its motion to compel answers to questions refused by Jones Brown on the basis of the test as stated by Frank J. in A.G.C. Mechanical, and specifically the second part of that test: Do the interests of justice require granting leave? Jones Brown submits that the “interests of justice” test is not engaged in this case where substantive rights are not in issue and that the only question for the court is whether there has been a substantial and unexpected change in circumstances.
 The legal issue to be determined is therefore whether the applicable test is limited to whether there has been a substantial and unexpected change in circumstances such that to refuse leave would be manifestly unjust or whether the court must also apply a second test of whether the granting of leave is in the interests of justice. As Frank J. in A.G.C. Mechanical purports to follow Perell J. in Van Ginkel, it is necessary to analyze Van Ginkel and the cases preceding it to determine whether Perell J.’s decision changes the test.
 Other than in cases involving issues of substantive rights, such as Gloucester Organization and Tanner, supra, the authorities prior to Van Ginkel all apply the same “substantial and unexpected change in circumstances” test, with no suggestion that a party seeking further production or discovery could also be granted leave if “in the interests of justice”. Accordingly, the “interests of justice” component of the test as framed by Perell J., if establishing a separate additional test for granting leave, would be at odds with all of the authorities on the issue subsequent to Kovary and Hill.
 In the passage from Van Ginkel, cited at paragraph  above, Perell J. states the law on when leave should be granted “to permit further discovery or other interlocutory proceedings” but does not in any way suggest that the test is different from that in the cases that he cites and that I have reviewed above. If Perell J. had intended to change a test that has been recognized and applied for over 35 years since Kovary v. Heinrich, supra was decided in 1974, one would expect that he would have expressly stated that he was doing so. A reading of his statement of the law that is much more consistent with the previous authorities is that in order to justify granting leave, the substantial and unexpected change in circumstances must be such that a refusal to grant leave would be manifestly unjust or that the change in circumstances is such that the granting of leave is necessary in the interests of justice.
 This alternative reading of Perell J.’s statement of the law in Van Ginkel is also consistent with his application of the law to the facts of that very case. His conclusion prior to dismissing the motion for leave is as follows:
“21 I understand a critical issue of Mr. Van Ginkel’s action is the characterization or classification of the expenses. However, I do not see how a question about the timing of the expenses for the first tranche, which was paid, raises a substantial or unexpected change in circumstances such that a refusal to grant leave would be manifestly unjust or that granting leave is necessary in the interests of justice.” In this paragraph, Perell J. repeats his statement of the law as quoted in paragraph  above and simply concludes that leave to move on undertakings and refusals should not be granted. He does not embark on an enquiry as to whether leave should otherwise be granted on the basis that it would be in the interests of justice, irrespective of whether there had been a substantial and unexpected change in circumstances such that to refuse leave would be manifestly unjust. If Perell J. in Van Ginkel had intended to create a second component to the test, he surely would have applied that second component separately in his own decision. That fact that he did not do so leads me to conclude that he did not intend that it be applied as a separate alternative test.
 Based on all of the various Superior Court decisions cited above, prior to Frank J.’s decision in A.G.C. Mechanical, supra, including that of Perell J. in Van Ginkel, I conclude that the test for granting leave to bring a motion for further discovery, which would include to compel answers to refusals, is still as stated in Hill, supra, at paragraph  above.
In D'Souza v. Brunel International Inc. (ITECC Consulting) (Ont CA, 2019) the Court of Appeal reviews the criteria for restoring an action to the trial list:
 In a motion to restore an action to the trial list, where the effect of refusing the order is to bring the action to an end, the court must determine whether a reasonable explanation has been provided for the relevant period of delay and whether the defendant will suffer non-compensable prejudice if the action is restored to the trial list. Where delay has been addressed in a prior court order, or consented to, it is any subsequent delay that requires explanation: Stokker v. Storoschuk, 2018 ONCA 2, 140 O.R. (3d) 473, at para. 5. And while the court should not mechanically review each step in an action and require a plaintiff to explain every period of delay, the overall delay of the plaintiff in prosecuting the action is a factor that can inform the court’s assessment of whether an acceptable explanation has been provided by the plaintiff and whether the defendant will suffer non-compensable prejudice if the action is restored to the trial list: Carioca’s, at para. 62; Stokker, at para. 14.. Mehedi v. 2057161 Ontario Inc. (Job Success)
In Mehedi v. 2057161 Ontario Inc. (Job Success) (Ont CA, 2014) the Court of Appeal considered when a court, on being presented with fresh evidence unavailable at trial (and in this case even after appeals had been dismissed), should re-open a trial:
 In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII), 2001 SCC 59,  2 S.C.R. 983, the Supreme Court indicated that the discretion to reopen the trial is the trial judge’s. The trial judge is in the best position to decide whether fairness dictates that the trial be reopened. The trial judge should exercise his or her discretion to reopen the trial “sparingly and with the greatest care” so that “fraud and abuse of the [c]ourt’s processes” do not result: Sagaz, at para. 61.
 In Sagaz, however, the trial judge was asked to reopen the trial before the appeal, whereas in Mr. Mehedi’s case, the appeal has already been heard and determined.
 In Aristocrat v. Aristocrat 2004 CanLII 32256 (ON CA), (2004), 73 O.R. (3d) 275 (C.A.), the moving party’s appeal to the Court of Appeal and his application for leave to appeal to the Supreme Court of Canada had been dismissed, when subsequently he claimed he discovered fresh evidence showing that his wife and daughter had induced the Court of Appeal to dismiss his appeal by reason of “false, fabricated, fraudulent and perjured evidence”. He brought a motion in the Court of Appeal pursuant to rule 59.06(2)(a) to set aside the order dismissing his appeal. The matter was eventually heard by a panel of the court, which said at para. 9:
Based upon his oral submissions and his response to questions from the court, it is apparent that Mr. Aristocrat’s main concern is to re-open and set aside the original judgment of [the trial judge] as a judgment obtained by fraud. In order to accomplish this, he has moved under rule 59.06(2)(a). The Court of Appeal has no jurisdiction to hear such a motion. Such motions should be brought in the action before a judge of the Superior Court. The court in Aristocrat referred to an earlier case, R. v. Moura 2003 CanLII 46485 (ON CA), (2003), 172 C.C.C. (3d) 340 (Ont. C.A.), in which Morden J.A. held that a motion to set aside an order of the Superior Court, affirmed on appeal, on the basis of newly discovered evidence of fraud should be brought in the Superior Court.