Monday, May 3, 2010


7 Hour Discovery Rule Interpreted

Justice Templeton has recently addressed the new so-called "7 Hour Rule" that limits examinations for discovery, J. & P. Leveque Bros. v. Ontario , 2010 ONSC 2312.

The issue on the motion was whether leave should be granted to the plaintiff to conduct an examination for discovery of the defendants for a period of time in excess of seven hours.

At paragraph 16 of her decision, Templeton J. writes: The interests of justice do not require that the concept of effective representation trump the concept of cost-efficient and/or expeditious justice or vice versa; but they do require that these factors be balanced both jointly and severally by all participants in the process.

She also adds at paragraph 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.

At a paragraph 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.

In conclusion she granted the plaintiff 19 hours to conduct the examination for discovery since it was a multi-party action involving a number of different issues.

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