Faster Lawsuits – 7 Hour Limit on Discoveries

The Issue

To force lawsuits to move forward faster, Ontario implemented a “7 hour” time limit on Discoveries as part of the January, 2010 package of reforms to the Rules of Civil Procedure.

If you wish to extend the time to more than 7 hours, you need opposing counsel’s consent or a Court order.

• How is this “7 hour” limit going to be interpreted by the Court?
• When will the Court grant an extension of time to allow more than 7 hours?

Why This Matters

The 7 hour limit will generally affect how counsel approach their case, including:

• placing greater emphasis on counsel requiring pre-Discovery disclosure of documentation;
• utilizing other means to force disclosure of information prior to Discovery, such as a Demand for Particulars, utilizing Request to Admit to clarify issues of contention, etc.; and
• bringing motions, before Discoveries, to force disclosure and clarification of issues.

This may mean increased costs to a client, prior to Discoveries being held.

The net effect is supposed to streamline and speed up litigation so that, ultimately, the client pays less in litigation costs over the lifespan of the lawsuit.

The Details

The recent case of J. & P. Leveque Bros. v. Ontario (2010 Ontario Superior Court of Justice) analyzed Rule 31.05.1, which imposes the 7 hour time limit:

TIME LIMIT

Not to Exceed Seven Hours

31.05.1 (1) 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. O. Reg. 438/08, s. 29.

Considerations for Leave

(2) In determining whether leave should be granted under subrule (1), the court shall consider,

(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. O. Reg. 438/08, s. 29.

The plaintiff brought this motion before Discoveries.

The plaintiff contractor was suing the Ontario Ministry of Transportation over a $6 million road construction contract which involved allegations of improper construction, leading to extensive repair work.

At the motion, the plaintiff lead evidence that thousands of documents and numerous parties were involved, thereby making it impossible to conduct proper Discoveries within 7 hours.

The Court began its analysis as follows:

[11] The following factors in this case are relevant:

(a) there are five named parties in this litigation;

(b) the range of damages exceeds two million dollars;

(c) the parties have exchanged digital productions and have a database of 8,950 documents (17,710) pages in a program called Summation;

(d) multiple jurisdictions are involved;

(e) mediation was successful with respect to a fourth defendant but unsuccessful with respect to the parties currently before the Court;

(f) there is a counterclaim of $250,000 by the MTO;

(g) the time frame to which the evidence relates spans three years; and

(h) the parties are represented by experienced counsel who are of aware and knowledgeable concerning the issues.

Given the complex nature of the proceedings, the Court allowed the plaintiff 19 hours of Discovery, which is roughly 3 days.

Points to Take Away

1. The limit on Discoveries is described as an “access to justice” issue:

[13] The overarching concern in the Summary of Findings and Recommendations referred to above which is reflected in the amendment to the Rules is the need for effective and cost-efficient access to justice. For a number of years, these two concepts have unfortunately in theory and/or in practice been viewed or treated as virtually mutually exclusive.

[14] For most, access to justice also means “legal representation” representation in the litigation process which in and of itself has financial consequences for the litigant. That said, it is not uncommon to observe that the lack of legal representation may also have costs consequences that would not otherwise be incurred were the litigant represented.

[15] The foundations of ‘effective litigation’ are ‘relevance’ and ‘preparation’. Ironically, these are also the very same foundations for ‘cost-effectiveness’ in the litigation process particularly at the discovery and trial stages. Lack of preparation and pursuit of irrelevant evidence contribute to spiralling costs.

2. The 7 hour limit is actual time questioning a party (and excludes breaks and delays):

[19] Further, against the backdrop of Justice Osborne’s comments and the amendments to the Rules, I interpret the limit of seven hours to mean seven hours of actual discovery on the record and that the limit does not envisage inclusion of breaks, adjournments or, in addition to the conduct described in Rule 31.05.1 (e) and (g), unreasonable interference in the questioning process by opposing counsel the effect of which interference is to unduly shorten the time available to the examining party.

3. Counsel are expected to informally allow for minor leeway of the 7 hour rule, depending on the circumstances:

[20] I am also of the view that in circumstances in which 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.

[21] In cases involving multiple parties, I would expect the excess of one hour to be deducted from the time available for that same party to examine another party to the litigation. In other words, to ensure that effective and cost-efficient justice is realized, counsel must adhere to their agreement with respect to the total length of the examinations but where there is more than one party, a leeway of one hour past the allotted time for the examination of one of the parties would not be unreasonable provided it is recovered from the examination of another party. This flexibility allows counsel to be effective and to prioritize but at the same time cost-efficient in the overall process.

More Background Information

For more information on the changes to Ontario’s Rules of Civil Procedure, please review:

• Our blog – March 11, 2009 – Changing Ontario Court Rules – January, 2010
• Our blog – January 25, 2010 – Faster Lawsuits – Changes to Lawsuit Rules
• Our blog – January 27, 2010 – Faster Lawsuits – Summary Judgment Motion Changes