Labor & Employment Law

Length of Examinations for Discovery

By Michael Fitzgibbon

The Ontario Rules of Civil Procedure were recently amended (with effect on January 1, 2010) and significantly and substantively changed the manner in which civil litigation matters proceed in Ontario. The changes followed an exhaustive review by the Honourable Coulter A. Osborne, Q.C. whose Summary of Findings and Recommendations of the Civil Justice Reform Project is available.

One area identified as needing reform was Discovery where it was noted:

Many with whom I met expressed similar concerns about oral discoveries being fishing expeditions, unfocused or conducted by poorly prepared counsel who are unduly concerned about overlooking potential facts and issues. A few also noted lawyers' self-interest in prolonging examinations to achieve billing targets. As I have suggested, prolonged oral discoveries did not appear to be a problem in smaller Ontario communities.

However, what was consistent among the views I heard was that a default of one day (or seven hours) of examination per party is sufficient in most cases. I emphasize that the one-day limit should be a default time. There will be cases where more than one day will be required. The one-day default rule ought to permit parties to agree to more than one day for discoveries. Failing agreement, the court would determine the discovery time allocation. [Emphasis added]

Rule 31.05.1 provides that (in a "regular" non-Simplified Rules action): 

No 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.

In deciding whether to grant leave, the Rules provide that the Court shall have regard to:

(a) the amount of money in issue;

(b) the complexity of the issues of fact or law;

(c) the amount of time that ought reasonably to be required in the action for oral examinations;

(d) the financial position of each party;

(e) the conduct of any party, including a party?s unresponsiveness in any examinations for discovery held previously in the action, such as failure to answer questions on grounds other than privilege or the questions being obviously irrelevant, failure to provide complete answers to questions, or providing answers that are evasive, irrelevant, unresponsive or unduly lengthy;

(f) a party?s denial or refusal to admit anything that should have been admitted; and

(g) any other reason that should be considered in the interest of justice.

A nice review of the factors relevant to granting leave to extend time for examinations for discovery can be found in two (2) cases of my former partner Master Benjamin Glustein:

• Osprey Capital Partners v. Gennium Pharma Inc.
• Hancock v. Lunn

In Hancock, it was alleged that the employer terminated "his employment contract as Director of Public Works as a result of a campaign by Lunn to have him dismissed.  Hancock alleges that Lunn acted based on speculation, innuendo, and with malicious intent."  Hancock asked the Court to allow him to examine Lunn for 3 days.  The Court agreed after considering the factors set out in the Rules.

In Osprey, the Court granted leave to Osprey to "exceed a total of seven hours for examinations for discovery of the three defendants, and order that Osprey is entitled to seven hours of examination for discovery of each of the defendants Patterson, Marshall, and Genpharm".

These are two helpful cases on the circumstances to consider when seeking (or defending a motion) leave to exceed the time limit for examination for discovery under the Rules.  The Rules are new and the cases are a work in progress but show that, in appropriate cases, the Rules will be applied with some flexibility where the circumstances warrant. 

Full post as published by Thoughts from a Management Lawyer on July 06, 2010 (boomark / email).