In J. & P. Leveque Bros. v. Ontario, Madam Justice Templeton considered the new R. 31.05.1, which provides that “[n]o party shall, in conducting oral examinations for discovery, exceed a total of seven hours of examination, regardless of the number of parties or other persons to be examined, except with the consent of the parties or with leave of the court.”
On this motion, the plaintiff sought leave to exceed the seven hour limit. The underlying litigation had to do with the failure of a rehabilitative surface treatment applied to an Ontario highway. The potential damages apparently exceeded two million dollars.
Her Honour had little difficulty in concluding that the plaintiff was entitled to leave to conduct examinations lasting more than seven hours. She based her decision on “effective representation, cost efficiency and expediency as defined in the factors set out in the Rule”. She extended the time limit to 19 hours in total.
Her reasons contain a discussion of the factors set out in subrule 31.05.1(2). She also set out some practical guidelines, including:
- the seven hour limit does not include breaks, adjournments, unreasonable interference in questioning by opposing counsel, resulting in undue shortening of the time available to the examining party;
- where “the time limit agreed upon in the Discovery Plan has expired and counsel is at a crucial point in his/her examination on an issue central or germane to the case, flexibility ought to be brought to bear and that further time to a maximum of one hour to continue and conclude the examination would not be unreasonable in the circumstances”; and
- where such a one-hour leeway is taken advantage of by a party, it should reduce that examiner’s allotted time for the examination of another party.