By Amanda Colarossi
Overview
The Rules of Civil Procedure often change. Sometimes they change in minor ways, and sometimes major ways.
Rule 48.04 underwent a small but important change by amendment in July 2021. A party not setting a matter down for trial can now consent to the matter being placed on the trial list, and still be able to bring motions/request further examinations for discovery without leave from the Court.
Rule 48.04(1) prior to July 1, 2021
Prior to July 2021 Rule 48.04(1) read 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. [emphasis added]
The party setting an action down for trial is the party who serves and files the Trial Record (Rule 48.02). This is often, but not always, the plaintiff in an action.
Under the old Rule, the party who did not set the action down for trial might have had to attend Trial Scheduling Court and state that they were not consenting to the matter being placed on a trial list within the meaning of Rule 48.04. This would allow that party to continue to bring motions/discovery requests, including expert assessments involving the opposing party, after the matter was set down for trial and without leave from the Court.
If the party who did not set the action down for trial simply consented to the matter being on the trial list, they would also have to request leave from the Court to do things like bring motions, or obtain further examinations for discovery.
Rule 48.04(1) post July 1, 2021
On July 1, 2021, the Rule was changed and currently reads as follows:
48.04 (1) Subject to subrule (3), 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.
This slight change to the Rules means that the party who did not set the action down for trial can now consent to the action being placed on the Trial List but also continue to be able to bring a motion/discovery without leave from the Court.
Take away
The party not setting the action down for trial can now consent to an action being placed on the trial list and avoid having to attend trial scheduling court, while still retaining their rights to bring motions/discoveries without requiring leave from the Court.
This Rule change will hopefully be beneficial to parties, as only one will have to attend Trial Scheduling Court in uncontested matters, and in some jurisdictions, Trial Scheduling Court can be done before the registrar, on paper, or by email, saving clients time and money.
By Amanda Colarossi
Overview
The Rules of Civil Procedure often change. Sometimes they change in minor ways, and sometimes major ways.
Rule 48.04 underwent a small but important change by amendment in July 2021. A party not setting a matter down for trial can now consent to the matter being placed on the trial list, and still be able to bring motions/request further examinations for discovery without leave from the Court.
Rule 48.04(1) prior to July 1, 2021
Prior to July 2021 Rule 48.04(1) read as follows:
The party setting an action down for trial is the party who serves and files the Trial Record (Rule 48.02). This is often, but not always, the plaintiff in an action.
Under the old Rule, the party who did not set the action down for trial might have had to attend Trial Scheduling Court and state that they were not consenting to the matter being placed on a trial list within the meaning of Rule 48.04. This would allow that party to continue to bring motions/discovery requests, including expert assessments involving the opposing party, after the matter was set down for trial and without leave from the Court.
If the party who did not set the action down for trial simply consented to the matter being on the trial list, they would also have to request leave from the Court to do things like bring motions, or obtain further examinations for discovery.
Rule 48.04(1) post July 1, 2021
On July 1, 2021, the Rule was changed and currently reads as follows:
This slight change to the Rules means that the party who did not set the action down for trial can now consent to the action being placed on the Trial List but also continue to be able to bring a motion/discovery without leave from the Court.
Take away
The party not setting the action down for trial can now consent to an action being placed on the trial list and avoid having to attend trial scheduling court, while still retaining their rights to bring motions/discoveries without requiring leave from the Court.
This Rule change will hopefully be beneficial to parties, as only one will have to attend Trial Scheduling Court in uncontested matters, and in some jurisdictions, Trial Scheduling Court can be done before the registrar, on paper, or by email, saving clients time and money.