Leave Required for Refusals Motion After Set Down

Does a party need leave to continue a refusals motion after it has set the action down?

In Jetport v. Jones Brown, 2013 ONSC 2740 (S.C.J.), the parties brought motions seeking answers to questions refused on examination for discovery.  Although the motions were commenced in May 2012, they were not completed and were adjourned to November 2012.  They were still not completed and further dates in April 2013 then October 2013 were scheduled.  In February 2013, trial was scheduled for May 2015.  

One of the issues on the motion was whether the plaintiff required leave to bring the motion pursuant to r. 48.04(1) since it had set the action down for trial.  The plaintiff argued that it did not require leave based on rule 48.04(2), which provides that r. 48.04(1) does not relieve a party from any obligation imposed by r. 31.07 (failure to answer on discovery).

Master Graham held that the plaintiff required leave.  There is no obligation on a party to answer questions refused on discovery and therefore a motion to compel answers does not fall within s. 48.04(2) so a party that has set the matter down must seek leave to initiate or continue a motion to compel answers to refusals. 

It appears there are two differing lines of case law on this issue.  Counsel should be cautious about setting an action down if there are outstanding refusals they wish to pursue.