Can You Force Answers to Discovery Questions in Ontario Construction Lien Cases?

Do You Need Leave to Bring a Refusals Motion in an Ontario Lien Action?

Yes — but leave can be granted implicitly, and in this case it was. In Micon Group Ltd. v. Maple Reinders Constructors Ltd., 2026 ONSC 3883 (CanLII), the court confirmed that a previously approved discovery plan that contemplated refusals motions, combined with the grant of leave to conduct examinations, was enough to satisfy the leave requirement under the former Construction Lien Act. The court also found that, even if leave had not already been granted, the motion was necessary to move the litigation forward and leave would have been granted on that basis alone.

This matters because construction lien litigation has procedural rules that differ from ordinary civil actions. Parties sometimes argue that a refusals motion cannot proceed without a separate leave application. This decision makes clear that where the procedural groundwork has already been laid — through a discovery plan or an order permitting examinations — that argument will not succeed.

Are Discovery Undertakings Enforceable Even If They Become Burdensome?

Yes — undertakings given during discovery are binding and cannot be abandoned simply because answering them later seems inconvenient. The court applied the principles from Fyffe and Dalcourt-Wilkins, both of which confirm that a party who gives an undertaking at discovery has made a commitment the court will enforce. The fact that the work required to answer is time-consuming, or that the party now wishes it had refused the question at the time, does not change the obligation.

In this case, multiple undertakings were found to be either completely unanswered or only partially answered. The court ordered that all of them be addressed within a fixed deadline. If you are in active litigation and have given undertakings, treat them as court orders in waiting — the consequences of ignoring them are real.

What Questions Must Be Answered at Discovery in a Construction Dispute?

Questions that connect directly to the issues raised in the pleadings must be answered. The court applied the principle from Ontario v. Rothmans — discovery is not a fishing expedition, and the scope of proper questions is defined by what the parties have actually put in dispute through their pleadings. Where a question falls within that scope, it must be answered regardless of whether the responding party finds it inconvenient.

In this case, questions about the basis on which billing was calculated and how draws were valued were found to be proper and were ordered answered. These went to the heart of the financial dispute between the parties in the lien action. Our Ontario employment law lawyers regularly advise on discovery obligations in civil disputes — the same principles of relevance and proportionality apply across many types of litigation.

What Questions Can Be Refused at Discovery?

Questions that go beyond the pleaded issues can be refused. The court found that requests about the authenticity of documents that had not been put in issue, and questions about consultant reports that were not relevant to the live claims, were improper. These were refused because they amounted to a fishing expedition — an attempt to explore areas of potential relevance rather than areas of actual dispute.

The line between a proper question and an improper one is not always obvious. The key is whether the question has a reasonable connection to something a party has actually alleged or denied in their pleadings. If the answer could only matter if the pleadings were amended to raise a new issue, the question is likely out of bounds.

What Happens When a Party Ignores Discovery Obligations?

The court will step in and order compliance, with a deadline. In this case, the responding party had left multiple undertakings unanswered or incomplete. Rather than allowing the situation to drift, the court set a fixed timeline for answers to be provided. Failing to comply with such an order can have serious consequences, including cost awards or other sanctions.

This is a practical reminder that discovery obligations are not optional. Construction lien litigation is already complex and expensive. Parties who delay or refuse to engage with legitimate discovery requests risk making their own position worse by drawing court scrutiny and potential adverse cost orders.

Practical Takeaways for Parties in Construction Lien Litigation

• Honour undertakings promptly. If you gave an undertaking during an examination for discovery, treat it as a binding obligation. Do not wait for a motion to force compliance — by then, costs may already be awarded against you.
• Review your discovery plan carefully. An approved discovery plan that contemplates refusals motions may also implicitly grant leave to bring one. Do not assume procedural arguments will shield you from a refusals motion.
• Scope your questions to the pleadings. Questions asked at discovery must connect to what has actually been pleaded. Before asking a question, consider whether the answer would be relevant to a live issue — if not, expect a refusal to be upheld.
• Watch for mixed rulings. Courts often grant refusals motions only in part. Some questions will be ordered answered and others will not. Prepare for a nuanced result rather than an all-or-nothing outcome.
• Get legal advice before examinations. Having counsel experienced in Ontario civil procedure — including in cities like Hamilton or Mississauga — can help you navigate discovery obligations and avoid costly mistakes.

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UL Lawyers offers a free initial consultation from our Burlington office and serves clients across Ontario. If you are involved in a construction dispute or any civil litigation where discovery obligations are at issue, speak with our team about your rights and next steps. Reach out to our Ontario civil and employment litigation team to get started.

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This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.