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Edwards v. McCarthy, 2012 ONSC 6833 (Rule 31.05.1 – time for discovery)

Judgment Released: December 4, 2012  Link to Judgment

In a solicitor’s negligence claim seeking up to $400,000 in damages, the plaintiff brought a motion pursuant to Rule 31.05.1 seeking leave of the Court to continue his examination of the defendant solicitor for an additional three to five hours. The defendant’s prior examinations had taken place over three separate days in 2009, 2011 and 2012. The Court considered the factors on the motion to be: the amount in issue; the complexity of the issues; the amount of time that ought reasonably to be required; and the financial position of each party. The Court also considered other reasons that should be taken into account in the interest of justice. The Court concluded that a further brief examination was required and ordered an additional of 2.5 hours of discovery, for a total of approximately 11 hours, rather than the standard 7 hours allowed under the Rules. The Court awarded partial costs in the amount of $3,000.00, inclusive of HST and disbursements in favour of the plaintiff.

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Edwards v. McCarthy, 2012 ONSC 6833 (Rule 31.05.1 – time for discovery)

Osprey Capital Partners v. Gennium Pharma Inc., 2010 ONSC 2338 (Master) (Rule 31.05.1 – time limit for discovery)

Judgment Released: April 26, 2010   Link to Judgment

The plaintiff brought a motion under Rule 31.05.1(1) for leave to examine each of the three defendants for seven hours, as opposed to the new general rule of seven hours for all defendants collectively.  The Court considered the factors for granting such leave set out in Rule 31.05.1(2).  Among other findings, the Court noted that (a) in determining the amount of money at issue, the court should review the pleadings to determine if the damages have a reasonable bearing to the impugned conduct; (b) in determining the complexity of the issues, the court must take a hard look at the pleadings and other evidence to determine what is in issue, and that in many cases the Court can make that determination without the moving party providing evidence of complexity; and (c) the factor of the amount of time reasonably required for discovery is closely related to the factors of the complexity of the issues and the amount of money in issue. 

Further, the Court noted that counsel need not first attempt to complete discovery before seeking additional time; that counsel are not required, in a discovery plan, to advise adverse counsel of key documents and issues; and that the fact that there are multiple parties to be examined (whether multiple plaintiffs sue one defendant or one plaintiff sues multiple defendants) is not per se a factor which favours additional discovery time.  Here, the complexity of the issues resulted in the plaintiff being granted the order sought.

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Osprey Capital Partners v. Gennium Pharma Inc., 2010 ONSC 2338 (Master) (Rule 31.05.1 – time limit for discovery)

J. & P. Leveque Bros. v. Ontario, 2010 ONSC 2312 (S.C.J.) (Rule 31.05.1 – time limit for discovery)

Judgment Released:   April 18, 2010  Link to Judgment

The plaintiff sought leave to exceed the seven-hour time limit on examinations for discovery under Rule 31.05.1(1). In granting leave, the Court held that cost-efficient access to justice, expeditious justice, and effective representation are factors to be balanced by all participants in the litigation process.  The Court held that Rule 31.05.1(1) permits seven hours of actual discovery on the record, not inclusive of breaks, adjournments or unreasonable interference by opposing counsel that unduly shortens the time available to the examining party. In addition, the Court emphasized the need for flexibility and held that where the time limit agreed upon in a discovery plan under Rule 29 has expired and counsel is at a crucial point in their examination, further time to a maximum of one hour would not be unreasonable.  The Court noted that in cases involving multiple parties, counsel must adhere to their agreement with respect to the total length of examinations, i.e. leeway of one hour past the allotted time for the examination of one party would not be unreasonable provided it is recovered from the same examining party’s examination of another party to the litigation.

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J. & P. Leveque Bros. v. Ontario, 2010 ONSC 2312 (S.C.J.) (Rule 31.05.1 – time limit for discovery)

Environmental Health Foundation v. MacGregor, 2010 ONSC 215 (Rule 31.05.1 – time limit for discovery)

Judgment Released:  January 8, 2010  Link to judgment

Two defendants requested security for costs for, among other things, six days of discovery. Based on Rule 31.05.1(1), the Court allowed security for costs for only 14 hours (two days) of discovery. If the parties consented or either party sought and obtained leave to conduct more than seven hours of examination, the defendants could then request a further order for security for costs for the additional hours or days of examination as a term of the order granting additional time for examinations.

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Environmental Health Foundation v. MacGregor, 2010 ONSC 215 (Rule 31.05.1 – time limit for discovery)